Villegas v Feder

[*1] Villegas v Feder 2009 NY Slip Op 52168(U) [25 Misc 3d 1218(A)] Decided on October 14, 2009 Supreme Court, Nassau County Marber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 14, 2009
Supreme Court, Nassau County

David Villegas, Plaintiff,

against

John Feder, M.D., Orlin & Cohen Orthopedic Associates, LLP, South Nassau Communities Hospital, Andrew R. Getzin, M.D., and Ithaca College, Defendants.



022381/07

Randy Sue Marber, J.

The motion by the Defendant, Andrew R. Getzin, M.D., (hereinafter "Dr. Getzin")for an order pursuant to CPLR § 3212 granting him summary judgment dismissing the complaint against him is GRANTED.

The cross-motion by the Defendant, Ithaca College, for an order pursuant to CPLR § 3212 granting it summary judgment dismissing the complaint against it is GRANTED.

In this action, the Plaintiff seeks to recover damages for medical malpractice and lack of informed consent. He alleges that the Defendant, Dr. Getzin, as an employee of the Defendant, Ithaca College negligently cleared him in his freshman year to play football in August 2005 and treated him negligently that season as well.

The pertinent facts are as follows:

The Plaintiff injured his ankle in a high school wrestling match in January 2005. He sought treatment from the Defendant, Orlin & Cohen Orthopedic Associates, LLP where he was diagnosed with syndesmotic disruption with talar subluxation of the left ankle and Maisonneuve fracture of the left fibula. On January 28, 2005 open reduction surgery was performed by Dr. John Feder at the South Nassau Communities Hospital to repair the Plaintiff's left ankle injuries. On April 28, 2005, Dr. Feder operated on the Plaintiff again at the South Nassau Communities Hospital to remove the hardware. The Plaintiff thereafter went to physical therapy and continued to be treated at Orlin & Cohen.

On July 26, 2005, in filling out medical records for Ithaca College, the Plaintiff's doctor, Dr. Susan Groh, represented that in her medical judgment, he had no problems that would [*2]prohibit his participation in intramural or club sports. Similarly, it is not disputed that when he was seen at Orlin & Cohen on July 29, 2005, he told Dr. Feder that he was going play football at Ithaca College and Dr. Feder instructed him to play as tolerated and to wear some type of brace or be taped for athletics.

Upon arrival at Ithaca College, the Plaintiff was medically evaluated by a nurse, an athletic trainer and on August 15, 2005 by Dr. Getzin, a board certified family physician with a fellowship in sports medicine. Aware that the Plaintiff had sustained a prior ankle injury, Dr. Getzin asked him if he had been cleared by his doctor to play football and the Plaintiff indicated that he had. Based upon that, the length of time since the injury, the Plaintiff's medical records and physical therapy records and his conversation with the Plaintiff, Dr. Getzin cleared the Plaintiff to play football, too.

The case notes from the athletic physical trainer indicate that the Plaintiff "rolled his ankle" on August 19, 2005 but returned to practice the next day. They also indicate that on August 26, 2006 the Plaintiff suffered an ankle sprain but that no time was lost. At his examination before trial, the Plaintiff testified that in September 2005, his leg would give out easily and that he had limited range of motion and issues with balance and sprinting.

On October 3, 2005, the Plaintiff went to see Dr. Getzin because his ankle was bothering him. Because he did not have the Plaintiff's medical records, Dr. Getzin had to rely on the Plaintiff's description of his prior injury, which he described as a "[Fracture] distally at the ankle which was plated as well as [fracture] proximally at the fibula." The Plaintiff told Dr. Getzin that his ankle gets sore particularly in the medial aspect, that he had been taping it for practice and that his speed was not back to normal. Dr. Getzin's examination of the Plaintiff's left ankle revealed limited range of motion—a "few" degrees in all directions, with strength 5/5. His proprioception, i.e., ability to sense stimuli, was diminished but he could jump up and down without difficulty. Dr. Getzin assessed the Plaintiff as having had a significant left ankle injury with resultant weakness and loss of balance. He recommended a more consistent rehabilitation program and believed he'd recover fully. Dr. Getzin expressed a need to see the Plaintiff's prior medical records and told him to return in three weeks.

Dr. Getzin received and reviewed the Plaintiff's orthopedic records from Orlin & Cohen on October 12, 2005. The Plaintiff's records revealed that he had sustained a Maisonneuve fracture and had good closure of his ankle mortise and that he had in fact been cleared by Orlin & Cohen for activities as tolerated on July 29, 2005.

Dr. Getzin saw the Plaintiff for re-evaluation on October 24, 2005. The Plaintiff reported improvements but stated that he was still not 100%. He reported problems standing on one leg and told him that when forced into dorsiflexion, i.e., flexion of foot in an upward direction, his ankle would give out on him. Upon examination, Dr. Getzin found a five degree limitation in his dorsiflexion but 5/5 strength. The proprioception of the Plaintiff's left ankle had improved to almost the equivalent to his right ankle. His jumping up and down on his left foot had improved but was still not 100%. Similarly, while the Plaintiff still had difficulty squatting on one leg, it had improved. Dr. Getzin's assessment was that his left ankle was improving. He planned to have the trainer work with the Plaintiff on jumping activities and advised the Plaintiff to continue his exercises. He noted that while he was pleased with the Plaintiff's progress, it would take a full year for full recovery from the injury he had suffered. The Plaintiff was instructed to return [*3]to Dr. Getzin as needed: He never did.

The Plaintiff played football in 2005, practiced football and worked as a custodian during the summer of 2006 and after submitting an annual medical update to Ithaca College indicating that he had no unresolved medical or orthopedic problems, played football in the fall of 2006. On November 21, 2006 in following up with Orlin & Cohen due to his complaints of limited range of motion and tenderness, Dr. Feder diagnosed the Plaintiff with an anterior bony impingement about his ankle. Second opinions confirmed this and surgery was required.

This medical malpractice action against Orlin & Cohen and Dr. Feder, South Nassau Communities Hospital, Ithaca College and Dr. Getzin ensued. Dr. Getzin and Ithaca College seek summary judgment dismissing the complaint against them. They allege the absence of a doctor-patient relationship as well as a lack of medical malpractice and/or proximate cause.

"On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Sheppard-Mobley v King, 10 AD3d 70, 74 (2d Dept. 2004), aff'd. as mod., 4 NY3d 627 (2005), citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." Sheppard-Mobley v King, supra, at p. 74, citing Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., supra. If the movant meets his burden, the burden shifts to the opposing party to establish the existence of a material issue of fact. Alvarez v Prospect Hosp., supra, at p. 324. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference. See, Demishick v Community Housing Management Corp., 34 AD3d 518, 521 (2d Dept. 2006), citing Secof v Greens Condominium, 158 AD2d 591 (2d Dept. 1990).

"To establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach of the standard was the proximate cause of injury (quotations omitted)." Sampson v Contillo, 55 AD3d 588 (2nd Dept. 2008), quoting Nichols v Stamer, 49 AD3d 832 (2nd Dept. 2008) and Berger v Becker, 272 AD2d 565, 565 (2nd Dept. 2000). In a medical malpractice action, a moving defendant doctor and/or hospital has "the initial burden of establishing the absence of any departure from good and accepted medical malpractice or that the plaintiff was not injured thereby (quotations omitted)." Chance v Felder, 33 AD3d 645 (2nd Dept. 2006), quoting Williams v Sahay, 12 AD3d 366, 368 (2d Dept. 2004), and citing Alvarez v Prospect Hosp., supra; Johnson v Queens-Long Island Medical Group, P.C., 23 AD3d 525, 526 (2nd Dept. 2005); Taylor v Nyack Hospital, 18 AD3d 537, 538 (2nd Dept. 2005); see also, Flanagan v Catskill Regional Medical Center, 65 AD3d 563 (2nd Dept. 2009); Thompson v Orner, 36 AD3d 791 (2nd Dept. 2007). If the moving defendant meets his burden in a medical malpractice action, in opposition, "a plaintiff must submit a physician's affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor's opinion that the defendant's omissions or departures were a competent producing cause of the injury." Domaradzki v Glen Cove Ob/Gyn Assocs., 242 AD2d 282 (2d Dept. 1997), citing Cerkvenik by Cerkvenik v County of Westchester, 200 AD2d 703 (2nd Dept. 1994); Caggiano v Ross, 130 AD2d 538 (2nd Dept. 1987); Amsler v Verrilli, 119 AD2d 786 (2nd [*4]Dept. 1986); see also, Flanagan v Catskill Regional Medical Center, supra; Mosezhnik v Berenstein, 33 AD3d 895 (2d Dept. 2006). "General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment (quotations omitted)." Flanagan v Catskill Regional Medical Center, supra, at p. 565, quoting Rebozo v Wilen, 41 AD3d 457, 458 (2nd Dept. 2007), and citing Alvarez v Prospect Hosp., supra, at p. 324-325; Sheenan-Conrades v Winifred Masterson Burke Rehabilitation Hosp., 51 AD3d 769, 770 (2nd Dept. 2008); Thompson v Orner, supra, at p. 792; DiMitri v Monsouri, 302 AD2d 420 (2nd Dept. 2003). An expert must set forth both the medically accepted standards of care and explain how they were departed from. Geffner v North Shore University Hospital, 57 AD3d 839, 842 (2nd Dept. 2008), citing Mustello v Berg, supra; Behar v Cohen, 21 AD3d 1045, 1047 (2nd Dept. 2005); LaMarque v North Shore Univ. Hosp., 227 AD2d 594, 594-595 (2nd Dept. 1996). Furthermore, the plaintiff's expert must address all of the pivotal facts relied on by the defendants' experts. See, Kaplan v Hamilton Medical Associates, P.C., 262 AD2d 609 (2d Dept. 1999); Geffner v North Shore University Hospital, supra, at p. 842; see also, Rebozo v Williams, supra, at p. 459 (2nd Dept. 2007); Slone v Salzer, 7 AD3d 609 (2d Dept. 2004); Ventura v Beth Israel Medical Center, 297 AD2d 801 (2d Dept. 2002), lv den.99 NY2d 510 (2003); Fhima v Maimonides Medical Center, 269 AD2d 559 (2d Dept. 2000).

"To establish proximate cause, the plaintiff must present sufficient evidence from which a reasonable person might conclude that it was more probable than not that' the defendant's deviation was a substantial factor in causing the injury." Alicea v Liguori, 54 AD3d 784, 785 (2nd Dept. 2008), quoting Johnson v Jamaica Hosp. Med. Ctr., 21 AD3d 881, 883 (2nd Dept. 2005); citing Holton v Sprain Brook Manor Nursing Home, 253 AD2d 852 (2nd Dept. 1998), lv to app den. 92 NY2d 818 (1999). " The plaintiff's evidence may be deemed legally sufficient even if his expert cannot quantify the extent to which the defendant's act or omission decreased the plaintiff's chance of a better outcome or increased [the] injury, as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased [the] injury.' " Alicea v Liguori, supra, at p. 786, quoting Flaherty v Fromberg, 46 AD3d 743, 743 (2nd Dept. 2007); citing Barbuto v Winthrop University Hosp., 305 AD2d 623, 624 (2nd Dept. 2003); Wong v Tang, 2 AD3d 840, 841 (2nd Dept. 2003); Jump v Facelle, 275 AD2d 345, 346 (2nd Dept. 2000), lv dism., 95 NY2d 931 (2000), lv den., 98 NY2d 612 (2002).

"While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable' "Postlethwaite v United Health Servs. Hospitals, Inc., 5 AD3d 892, 895 (3rd Dept. 2004), quoting Enu v Sobol, 171 AD2d 302 (3rd Dept. 1991) and citing Fuller v Preis, 35 NY2d 425, 431-433 (1974); Payant v Imobersteg, 256 AD2d 702, 704-705 (3rd Dept. 1998); Mattot v Ward, 48 NY2d 455, 459 (1979); see also, Behar v Cohen, 21 AD2d 1045 (2nd Dept. 2005), lv den., 6 NY3d 705 (2006); LaMarque v North Shore University Hospital, 227 AD2d 594 (2nd Dept. 1996). "[W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered." Behar v Cohen, supra; at p. 1047, citing Romano v Stanley, 90 NY2d 444, [*5]451-452 (1997); Nangano v Mount Sinai Hosp., 305 AD2d 473 (2nd Dept. 2003). "[I]f a physician possesses the requisite knowledge and expertise to make a determination on the issue presented, he need not be a specialist in the field." Enu v Sobol, supra, at p. 304, citing Joswick v Lenox Hill Hosp., 161 AD2d 352, 355 (1st Dept. 1990).

"Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions . . . . Such credibility issues can only be resolved by a jury." Feinberg v Feit, 23 AD3d 517, 519 (2nd Dept. 2005), citing Shields v Baktidy, 11 AD3d 671 (2nd Dept. 2004); Barbuto v Winthrop University Hosp., supra; Halkias v Otolaryngology-Facial Plastic Surgery Assoc., 282 AD2d 650 (2nd Dept. 2001); see also, Roca v Perel, 51 AD3d 757, 759 (2nd Dept. 2008); Graham v Mitchell, 37 AD3d 408 (2nd Dept. 2007).

In support of his application, Dr. Getzin has submitted the affirmation of Dr. Kevin Curley, a Board Certified Internist with a Certificate of Added Qualifications in Sports Medicine, and a Team Physician certified by the American College of Sports Medicine. "CPLR 3101(d)(1)(i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute,' unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing part." Aversa v Taubes, 194 AD2d 976 (1993), quoting Lillis v D'Souza, 174 AD2d 976 (1991); see also, Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710 (2nd Dept. 2007); Lanoce v Kempton, 8 AD3d 449, 451 (2nd Dept. 2004); Shopsin v Siben & Siben, 289 AD2d 220, 221 (2nd Dept. 2001); Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 (2nd Dept. 1999). There has been no evidence that the Defendant, Dr. Getzin's failure to disclose his expert was intentional or willful and there has been no showing of prejudice to the Plaintiff. Hernandez-Vega v Zwanger-Pesiri Radiology Group, supra. Dr. Getzin's expert's affirmation is accepted despite Dr. Getzin's failure to disclose.

Contrary to Dr. Getzin's argument, there is an issue of fact as to whether there was a doctor-patient relationship here. "A physician-patient relationship [does] not exist where [an] examination is conducted solely for the purpose or convenience or on behalf of an employer; in order to establish that relationship, there must be something more than a mere examination." Violandi v City of New York, 184 AD2d 364 (1st Dept. 1992), citing Lee v City of New York, 162 AD2d 34 (2nd Dept. 1990), lv den. 78 NY2d 863 (1991). Here, the Plaintiff actually went to Dr. Getzin twice for advice and treatment of his sore ankle. There is at minimum an issue of fact as to the existence of a doctor-patient relationship between the Plaintiff and Dr. Getzin. See, Forrester v Zwanger-Pesiri Radiology Group., 274 AD2d 374 (2nd Dept. 2000).

Having reviewed the Plaintiff's Bill of Particulars, his college records, his medical records and the pertinent depositions, Dr. Curley opines to a reasonable degree of medical certainty that Dr. Getzin's care of the Plaintiff conformed to the accepted standards of care and that in any event, no act or omission by him proximately caused the Plaintiff's injuries.

Dr. Curley opines to a reasonable degree of medical certainty that Dr. Getzin correctly relied on the Plaintiff's representation alone that his orthopedist had cleared him to play football in the summer of 2005. In addition, he notes that the Plaintiff's presentation provided no reason to preclude him from playing football. He opines that "[a] minor inversion limitation and inability to sprint as fast as before the injury were not evidence of underlying pathology seven [*6]months post accident and two surgeries."

Dr. Curley also opines to a reasonable degree of medical certainty that Dr. Getzin's treatment of the Plaintiff in October, 2005 conformed to the applicable standards of care. Dr. Curley opines that Dr. Getzin's evaluation and referral of the Plaintiff to the athletic trainers to work with the Plaintiff to increase his strength was appropriate and that nothing in his physical exam or his orthopedic records warranted x-rays or a referral to a specialist. Dr. Curley also opines that in view of the Plaintiff's intervening athletic and work history from when he last saw Dr. Getzin in October 2005 until he was diagnosed with an injury in November 2006 negates the existence of that injury earlier as it is "highly unlikely" that the Plaintiff would have been able to participate in athletic activities in the fall of 2005 and the spring and fall of 2006 if the injury had been there.

The Defendant, Dr. Getzin, has established his entitlement to summary judgment dismissing the complaint against him thereby shifting the burden to the Plaintiff to establish the existence of a genuine material issue of fact. Relying on Dr. Getzin's demonstration coupled with its liability being predicated exclusively on his acts, Ithaca College has also established its entitlement to summary judgment again thereby shifting the burden to the Plaintiff to establish the existence of a genuine material issue of fact.

In opposition, the Plaintiff has submitted the affirmation of a Board Certified Orthopedist. The Plaintiff's expert affirmation does not mention whether he had any specific training or expertise in evaluating a student's fitness to participate in collegiate athletics for an educational institution. Nor does his affirmation indicate that he familiarized himself with the relevant literature, standards of care or protocol applicable to that procedure. He has thus failed to set forth a foundation to establish the reliability of any opinion by him regarding Dr. Getzin and Ithaca College's allowing the Plaintiff to participate in collegiate football. See, Mustello v Berg, 44 AD3d 1018 (2nd Dept. 2007), lv den. 10 NY3d 711 (2008); Behar v Cohen, supra; Postlethwaite v United Health Services Hospitals, Inc., supra.

However, the Plaintiff's expert is an orthopedist and as such, appears to be qualified to render an opinion regarding the care and treatment Dr. Getzin provided to the Plaintiff for his ailing ankle in October, 2005.

The Plaintiff's expert opines that based upon his review of the pertinent medical records, Dr. Getzin departed from acceptable standards "resulting in iatrogenic injuries" to the Plaintiff. He faults Dr. Getzin for failing to timely and properly review the Plaintiff's actual medical records prior to treating him on October 3, 2005 and for forming diagnoses, assessments and plans without them. The Plaintiff's expert notes that on October 3, 2005, Dr. Getzin's records for the Plaintiff indicate that Dr. Getzin lamented the lack of the Plaintiff's records, but nevertheless stated that the Plaintiff had a fracture distally at the ankle which had been plated, as well as a fracture proximally at the fibula. The Plaintiff's expert notes that the Plaintiff did not have a distal fracture, but rather the fracture was proximally on the fibula. The Plaintiff's expert also faults Dr. Getzin for not reviewing the athletic trainers records which reflect the August 19th and 26th injuries; failing to more closely monitor the Plaintiff through his physical therapy; and, for failing to perform a "work-up" of the Plaintiff's "complaints including an evaluation with x-rays at minimum or a referral to an orthopedist."

The Plaintiff's expert faults Dr. Getzin for simply attributing the Plaintiff's "soreness to [*7]rehabilitating from a significant injury" and states "had he investigated these complaints further he would have fulfilled his obligations to act within medically acceptable standards of care." He similarly faults Dr. Getzin for relying on Orlin & Cohen's records which suggested an excellent position of the Plaintiff's ankle and never seeing those x-rays himself. The Plaintiff's expert concludes that in allowing the Plaintiff to play collegiate football and treating him, Dr. Getzin failed to appreciate David's true condition of diastasis between the distal tibia and fibula, an increase in the medial clear space, the failed reduction of the medial clear space, the malunion of the distal tibiofibular syndesmosis with lateral subluxation of the talus, the left Maisonneuve fracture with syndesmosis disruption and displacement of the mortise plus chondral fracture of the talus, that the joint space was not preserved, and the development of malunion of the distal tibiofibular syndesmosis with lateral subluxation of the talus. He opines to a reasonable degree of medical and surgical certainty that the Plaintiff's injuries were as the result of Dr. Getzin's departures from the acceptable standards of medical care.

Not only is the Plaintiff's expert's conclusions regarding what Dr. Getzin would have found had he treated the Plaintiff differently, i.e., obtained and reviewed his medical records sooner, followed up with the athletic trainers and oversaw his physical therapy; and, procured x-rays or made a referral to an orthopedist, conclusive, speculative and with no evidentiary foundation, the Plaintiff's expert's failure to make a meaningful causal connection in a concrete fashion rendering his opinion insufficient to establish the existence of a material issue of fact.

Dr. Getzin and Ithaca College's motions for summary judgment are granted and the complaint against them is dismissed.

This constitutes the decision and order of the Court.

DATED:Mineola, New York

October 14, 2009

________________________________

Hon. Randy Sue Marber, J.S.C.