Rosa v Alvarez

[*1] Rosa v Alvarez 2009 NY Slip Op 50099(U) [22 Misc 3d 1112(A)] Decided on January 23, 2009 Supreme Court, Richmond County McMahon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 23, 2009
Supreme Court, Richmond County

Paula M. Rosa, Individually, and as the Administratrix of the Estate of RALPH ROSA, Deceased, Plaintiff(s)

against

Gregorio Valdez Alvarez, II. M.D., "JOHN/ JANE DOE, M.D." (First and Last Name Being Fictitious) and STATEN ISLAND UNIVERSITY HOSPITAL, Defendant(s).



101930/2007

Judith N. McMahon, J.

On May 3, 2007, the plaintiff commenced this medical malpractice action alleging that the defendants failed to timely treat/diagnose the decedents bacterial meningitis. The plaintiff alleges that defendant Dr. Gregorio Alvarez and Staten Island University Hospital (hereinafter "SIUH") failed to address the symptoms of the plaintiff decedent, Ralph Rosa, in a timely manner which eventually caused him to perish on October 26, 2005. After issue was joined and discovery was complete the defendants, Dr. Alvarez and SIUH are now moving for summary judgment seeking to dismiss the complaint on the ground they did not deviate from accepted medical practice in diagnosing/treating the plaintiff-decedent on October 25, 2005.

It is well settled that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard " the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

The defendants have established their entitlement to summary judgment by presenting expert evidence, the affidavit of Dr. Robert Leviton, that defendant Dr. Alvarez and SIUH did not deviate from good and accepted medical practice in their treatment of the plaintiff, Ralph Rosa (see, Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). In opposition, the plaintiff has presented evidence in admissible form, specifically the redacted expert affirmation[FN1] who opined [*2]that the defendant, Dr. Alvarez and SIUH deviated from good and accepted medical practice in failing to diagnose/treat the decedent's bacteria meningitis. Particularly, the expert opined that the defendants failed to act in accordance with accepted medical standards by failing to notice the symptoms exhibited by Ralph Rosa, specifically, the high fever, anxiety, leg pain, and cough as symptoms for bacteria meningitis. As a result, it is well settled that, in a medical malpractice action, where conflicting expert reports differ, there are issues of fact to be resolved by the jury and summary judgment is inappropriate (Dandrea, v. Hertz, 23 AD3d 332 [2d Dept. 2005][conflicting expert opinions creates a credibility question that requires a jury's resolution] ; Shields v. Baktidy, 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]).

The Court notes that defendant's objection to the plaintiff's cardiologist opining as to the treatment rendered in this case is without merit. It is well settled that experts are required to possess "the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable" (Mattot v. Ward, 48 NY2d 455, 455-456 [1979]; Oboy v. Motor Coach Indus. Inc., 39 AD3d 512, 513-514 [2d Dept., 2007]; Miele v. American Tobacco Co., 2 AD3d 799, 802 [2d Dept., 2005]). Further, the extent of the qualifications of the expert is a matter bearing on the weight of the testimony, to be taken into consideration by trier of fact (Miele v. American Tobacco Co., 2 AD3d at 802-803).

Here, the plaintiff's expert, a Board Certified surgeon, licenced to practice in the State of New York, clearly possesses the requisite skill, training, education, knowledge or experience to give a reliable opinion on the treatment and care received by plaintiff-decedent under defendant's care, and thus is sufficient to defeat summary judgment (see, Dandrea, v. Hertz, 23 AD3d 332 [2d Dept. 2005][conflicting expert opinions creates a credibility question that requires a jury's resolution] ; Shields v. Baktidy, 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]).

With respect to the plaintiff's causes of action for lack of informed consent, the Court finds them inappropriate.

"Public Health Law § 2805-d (1) defines lack of informed consent as the failure of the person providing the professional treatment . . . to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation'." (Manning v. Brookhaven Memorial Hosp. Med. Ctr., 11 AD3d 518, 520 [2d Dept., 2004]).

To recover for lack of informed consent the plaintiff "must allege that the wrong complained of arose out of some affirmative violation of plaintiff's physical integrity" and further that "a reasonably prudent person in the plaintiff's position would not have undergone the treatment if he or she had been fully informed and that the lack of consent is a proximate cause of the injury or condition for which recovery is sought" (Smith v. Fields, 268 AD2d 579, 580 [2d Dept., 2000]; Iazzetta v. Vicenzi, 200 AD2d 209, 213-214 [3d Dept., 1994]).

Here, the plaintiff has alleged in the complaint that "[d]efendants failed to inform plaintiff's decedent of the risks, benefits, hazards and associated with the treatment rendered and procedures performed, so that an informed consent could be given" and further, that [*3]"[r]easonably prudent persons in plaintiff's decedent position would not have undergone the treatment rendered and procedures performed if he had been fully informed of the risks, benefits, hazards and alternatives connected with said treatment".

Here, the defendants have successfully established their entitlement to summary judgment as a matter of law on the informed consent cause of action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). Specifically, the defendants have proven that the allegations as contained in plaintiff's complaint do not successfully allege a wrong arising out of an affirmative violation of the plaintiff's physical integrity (Smith v. Fields, 268 AD2d 579, 580 [2d Dept., 2000]; Iazzetta v. Vicenzi, 200 AD2d 209, 213-214 [3d Dept., 1994]). Here, as in similar cases, the plaintiff's claims that the physician failed to timely diagnose his bacteria meningitis are insufficient to establish a cause of action based upon lack of informed consent (Campea v. Mitra, 267 AD2d 190, 191 [2d Dept., 1999][holding that "plaintiffs' claim that the appellant doctor failed to recommend surgery at a time when more beneficial results could have been obtained fails to state a cause of action based on lack of informed consent"]; Schel v. Roth, 242 AD2d 697, 698 [2d Dept., 1997][finding that the failure of the doctor to allegedly evaluate the patient in a timely manner, does not allege an affirmative violation of the patients physical integrity and as such fails to state a cause of action based upon lack of informed consent]; Smith v. Fields, 268 AD2d 579, 580 [2d Dept., 2000][determining that "plaintiff's lack of informed consent claim essentially seeks to recover damages for the defendant's failure to inform her of the risks . . . [and therefore] fails to state a viable cause of action for recovery"]; Janeczko v. Russell, 46 AD3d 324, 325 [1st Dept., 2007][stating that "[a] failure to diagnose cannot be the basis of a cause of action for lack of informed consent unless associated with a diagnostic procedure that involves invasion or disruption of the integrity of the body'"]; Jaycox v. Reid, 5 AD3d 994, 995 [4th Dept., 2004][holding that the alleged negligence of a doctor failing to timely perform a procedure does not sustain a cause of action for lack of informed consent]).

In opposition, the plaintiff has failed to raise any triable issues regarding affirmative violations of plaintiff decedent's physical integrity (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Specifically, the plaintiff provides little opposition to informed consent portion of the motion and does not establish that any alleged lack of informed consent by defendants affirmatively violated Ralph Rosa's physical integrity and as a result, summary judgment in favor of defendants is granted on the lack of informed consent cause of action.

This Court finds all further arguments by defendant's without merit.

Accordingly, it is

ORDERED that defendant's Dr. Gregorio Valdez Alvarez and Staten Island University Hospital's motion for summary judgment is hereby denied in part and granted in part, and it is further

ORDERED that defendant Dr. Gregorio Valdez Alvarez and Staten Island University Hospital's motion is granted with respect to the causes of action based upon lack of informed consent, and it is further

ORDERED that the defendant Dr. Gregorio Valdez Alvarez and Staten Island University Hospital's motion is denied in all other aspects, and it is further

ORDERED that the Clerk enter judgement accordingly. [*4]

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: Jan 23, 2009ENTER,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court Footnotes

Footnote 1:The unredacted expert affirmation was provided to the Court for in camera inspection.