Messina v DeBlasi

[*1] Messina v DeBlasi 2010 NY Slip Op 51903(U) [29 Misc 3d 1219(A)] Decided on November 5, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2010
Supreme Court, Richmond County

ROBERT MESSINA AND CAROL MESSINA, Plaintiff(s),

against

Joseph DeBlasi, M.D., BARTOLO PERLORO, M.D., GIULIO BIANCHI, M.D., MARIO ALICANDRI, M.D., UNIVERSITY PHYSICIANS GROUP, P.C., BERTRAM ALPERT, M.D., RICHMOND KIDNEY CENTER, INC., MICHAEL CASTELLANO, M.D., LOUIS SASSO, M.D., THEODORE MANIATIS, M.D., RALPH CICCONE, M.D., THOMAS KILKENNY, M.D., MICHEL CHALHOUB, M.D., STATEN ISLAND PULMONARY ASSOCIATES, P.C., NEVILLE MOBARAKAI, M.D., ARUN BABU, M.D., KARIN FARID, R.N., EILEEN A. SALVIN, N.P., STATEN ISLAND UNIVERSITY HOSPITAL, LUCINDA RIPOLL, M.D., REGAN & McGINN, M.D., P.C, AGNES STURZYNSKI, N.P., GOLDEN GATE REHABILITATION AND HEALTH CARE CENTER, LLC, JOHN/JANE DOES 1-10, who are physicians and nurses at Staten Island University Hospital, whose true names are presently unknown to plaintiffs, but who are proper parties to this action, and JOHN/JANE DOES 11-20, who are physicians and nurses at Golden Gate Rehabilitation and Health Care Center LLC, whose true names are presently unknown to plaintiffs, but who are proper parties to this action, , Defendant(s).



104742/2007

Judith N. McMahon, J.

The following papers numbered 1 to 6 were used on this motion this 14th day of September, 2010: [002]Notice of Motion [Defendants Michael Castellano, M.D., Louis Sasso, M.D.,

Theodore Maniatis, M.D., Ralph Ciccone, M.D., Thomas KilKenny, M.D., Michel

Chalhoub, M.D., Staten Island Pulmonary Associates, P.C., Neville Mobarakai,

M.D., and Arun Babu, M.D.](Affirmations in Support)..............................................................1

[003]Notice of Motion [Defendants Mario Alicandri, M.D., Karin Farid, R.N.

and Staten Island University Hospital](Affirmations in Support).............................................. 2 [*2]

[004]Notice of Motion [Defendant Joseph Deblasi, M.D., Bartolo Peloro, M.D.,

Giulio Bianchi, M.D., University Physicians Group, P.C., Lucinda Ripoll, M.D.,

and Regan & McGinn, M.D., P.C.,](Affirmations in Support) ................................................3

Affirmation in Opposition [Plaintiff]...........................................................................................4

Reply Affirmation [Defendant Defendants Michael Castellano, M.D., Louis Sasso, M.D.,

Theodore Maniatis, M.D., Ralph Ciccone, M.D., Thomas KilKenny, M.D., Michel

Chalhoub, M.D., Staten Island Pulmonary Associates, P.C., Neville Mobarakai,

M.D., and Arun Babu, M.D.]......................................................................................................5

Reply Affirmation [Defendant Mario Alicandri, M.D., Karin Farid, R.N.

and Staten Island University Hospital].......................................................................................6

____________________________________________________________________ ________________________

On or about December 18, 2007, the plaintiff commenced this action for, inter alia, medical malpractice against defendants [FN1] Joseph DeBlasi, M.D., Bartolo Perloro, M.D., Giulio Bianchi, M.D., Mario Alicandri, M.D., University Physicians Group, P.C. [hereinafter "University Physicians"], Michael Castellano, M.D., Louis Sasso, M.D., Staten Island Pulmonary Associates, P.C. [hereinafter "SI Pulmonary"], Neville Mobarakai, M.D., Arun Babu, M.D., Karin Farid, R.N., Staten Island University Hospital [hereinafter "SIUH"], Lucinda Ripoll, M.D., and Regan & McGinn, M.D [FN2]. Specifically, the plaintiff contends that the defendants were negligent in, inter alia, timely diagnosing and treating plaintiff Robert Messina's decubitus ulcers. Issue was joined and discovery is now complete [FN3]. Presently, all the abovementioned defendants are separately moving for summary judgment seeking to dismiss the complaint as against each of them, contending inter alia, that they each did not deviate from accepted medical practice in the treatment they rendered to the plaintiff, Robert Messina.

It is undisputed that on August 31, 2006, the plaintiff Robert Messina (age 58) was admitted to SIUH with complaints of an altered mental status. That morning the plaintiff [*3]exhibited strange behavior and was admitted to SIUH after his wife, plaintiff Carol Messina [FN4], called an ambulance. The plaintiff underwent a CT scan, among other tests, was intubated and admitted to the hospital for further testing. At the time of admission the plaintiff, admittingly, suffered from a variety of other health problems, including; obesity, diabetes, hypertension, pancreatitis with gallstones and hyperlipidemia.

Defendant Dr. Joseph DeBlasi, specialist in internal medicine, was plaintiff's private attending physician during his first admission to SIUH and had treated him prior to the admission from March 16, 2006, through July 27, 2006. Upon admission the plaintiff's skin was assessed for potential breakdown, where after it was noted that his skin was intact. In attempting to diagnose plaintiff's condition a myriad of specialists including; neurology, infectious disease, nutrition and psychology were consulted. During this time several possible diagnoses were considered including; meningitis, diabetes complications, CVA, pneumonia, HSV, ARDS and encephalitis. For most of his admission, the plaintiff remained either sedated or intubated.

On September 4, 2006, five days after plaintiff's admission to SIUH, a sacral decubitus pressure ulcer was noted. This ulcer was treated with offloading, topical wound care, turn schedules and two surgical debridements. On September 22, 2006, a consult was held with co-defendant nurse Karin Farid [FN5] to discuss new ulcer formation. At this time the plaintiff had several ulcers which were being treated with, inter alia, sensicare and debridements. Again on September 30, 2006, another consult was held. On October 2, 2006, plaintiff underwent a debridement and a trachesotomy. On October 9, 2006, the plaintiff was transferred to the chronic vent unit and two days later another ulcer on plaintiff's heal had formed. The ulcers were all being treated as previously indicated, namely by topical creams and debridements. Thereafter, on October 27, 2006, the plaintiff was transferred to Golden Gate Rehabilitation facility while on a ventilator.

Plaintiff, Robert Messina, was transferred back to SIUH on November 4, 2006, with complaints of shortness of breath and increased secretions. Defendant Dr. Bianchi, partner of Dr. Deblasi, was plaintiff's private treating physician for this admission. Again, the plaintiff was evaluated by several specialists including; defendants Drs. Castellano and Sasso (critical care pulmonalogists), Dr. Babu (neurology) and Dr. Mobaraki (infectious disease), who recommended a plastic surgery consult for the ulcers. The plastic surgeon recommended "wet to dry dressing and mattress to decrease pressure". The plaintiff, over the course of treatment, became stable and was transferred back to Golden Gate on November 16, 2006.

Thereafter, plaintiff was transferred back to SIUH on December 4, 2006, with the chief complaint being an infected bed ulcer. Defendant Dr. Lucinda Ripoll was plaintiff's private attending physician on this admission. Again, the plaintiff had evaluations by a [*4]multi-disciplined team of doctors to assess and render treatment [FN6]. The notes indicate plaintiff was bed ridden but could turn himself. Debridements of the various ulcers were conducted on December 14, December 18, December 20, December 28 and January 8, 2007. Plaintiff remained at SIUH until March 18, 2007.

Re-admission with Dr. Ripoll as his attending occurred on June 12, 2007, when treatment on the foot ulcer and a vascular consult was performed. The plaintiff was transferred back to Golden Gate through October 24, 2007. Upon release home the plaintiff was treated by non-party Visiting Nurse Service and a number of specialists as an outpatient. Currently, plaintiff Robert Messina is confined to a wheelchair.

Summary Judgment Standard

It is well settled that a "proponent of a summary judgment motion 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" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept., 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). In this regard, the court is enjoined to accept the evidence tendered by the opposing party as true, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue" (Fleming v. Graham, 34 AD3d 525 [2d Dept., 2006], quoting, Barker v. Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept., 1994] [internal quotation marks omitted]).

It is well settled that, in a medical malpractice action, "[o]n a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). "In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury" (Rebozo v. Wilen, 41 AD3d at 458-59; Rosenman v. Shrestha, 48 AD3d 781, 783 [2d Dept., 2008]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]).

Initially the Court notes that plaintiff's second cause of action for lack of informed consent is hereby dismissed as against all defendants. The plaintiff failed to rebut the defendants' prima facie showing of entitlement to summary judgment on this cause of action, and, in fact, failed to address this cause of action at all, requiring summary judgment on plaintiff's second cause of action, lack of informed consent, in favor of all defendants.

I.Defendant Drs. Castellano, Sasso, Mobarakai, Babu and SI Pulmonary's Motions for Summary Judgment [Motion 002] [*5]

Doctors Castellano and Sasso

The defendants Drs. Castellano, Sasso and SI Pulmonary have established their prima facie entitlement to summary judgment by adducing expert opinion that they each did not deviate from good and accepted medical practice in their respective treatment rendered to the plaintiff, Robert Messina (Alvarez v. Prospect Hosp., 68 NY2d 320, 325 [1986]; Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]).

Dr. Castellano and Dr. Sasso, both board certified in pulmonary critical care medicine, have established that they both saw the plaintiff, Robert Messina, several times during his first admission to SIUH, mostly in the critical care unit [hereinafter referred to "CCU"]. Dr. Castellano testified that standard critical pulmonary procedure does not involve assessment of the patients body unless it was felt to be of particular concern for pulmonary care. He testified that skin assessments, ulcer treatment and monitoring was usually performed by the nurses, per SIUH protocol. He contends that his care to the patient was limited to the area of critical pulmonary care and ventilation. Dr. Castellano's primary diagnosis at the time was respiratory failure secondary to meningoencephalitis complicated by persistent fevers of unknown etiology, further complicated by diabetes. He did note it was probable the pressure ulcer had developed because of the sepsis and a pre-existing condition; namely, a deep tissue injury (hereinafter "DTI"). However, he did evaluate the ulcers on several occasions because of their severity and significant factor in the plaintiff's overall diagnosis. Dr. Castellano's final diagnosis for the plaintiff during his first admission to SIUH was sepsis. With respect to the plaintiff's subsequent admissions, Dr. Castellano saw the plaintiff one time, on November 13, 2006.

Dr. Sasso's treatment of the plaintiff mimicked that of Dr. Castellano. He also indicated that his evaluations of plaintiff were primarily restricted to critical care pulmonary issues, i.e., ventilator pressure, parameters and chest x-rays. He did note that plaintiff needed a debridement but otherwise restricted his notes primarily to pulmonary evaluations. Dr. Sasso also indicated that per SIUH policies and procedures, the nursing staff was highly trained in the treatment/care of decubitis ulcers and rendered all treatment related to the ulcers. With respect to plaintiff's further admissions to SIUH, Dr. Sasso saw plaintiff once during his second admission and did not see plaintiff again.

Defendants Dr. Castellano and Dr. Sasso have provided the expert affidavit of Dr. Jack J. Adler [FN7] who opined that defendants Dr. Castellano and Dr. Sasso did not deviate [*6]from accepted medical standards in the treatment they each rendered to the plaintiff, Robert Messina (Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]).

Dr. Adler, board certified in pulmonary medicine, opined that Dr. Castallano appropriately addressed plaintiff's chief pulmonary complaints consistent with his specialty. Specifically, that "[t]he day to day treatment for prevention and treatment of pressure ulcers including turning and positioning is rendered by the nursing staff" and generally not evaluated by a critical pulmonary specialist unless the ulcers are considered critical to the overall diagnosis of the patient. Dr. Adler opined that Dr. Castellano noted the ulcer condition at the point when it became critical and relevant to his overall diagnosis. Dr. Adler noted that Dr. Castellano's assessment that the ulcers developed because of plaintiff's diagnosis of sepsis and pre-existing condition, DTI, were accurate but again, that the primary care/treatment would be performed by the nursing staff at the hospital. Further, that Dr. Castallano was not responsible for ordering a debridement, a decision for a surgeon, not a critical care pulmonalogist. As a result, Dr. Castellano has presented sufficient evidence to establish his entitlement to summary judgment as a matter of law that the treatment he rendered to plaintiff, Robert Messina, was well within the accepted standards of medical practice.

With respect to Dr. Sasso, expert Dr. Adler opined that he also treated the plaintiff, Robert Messina, well within the accepted standards of medical practice. Specifically, that he properly performed critical care pulmonary evaluations on his rounds in the CCU and recognized that treatment of pressure ulcers is performed by the nursing staff, as per the SIUH policies and procedures. He opined that Dr. Sasso appropriately noted the ulcers as they became relevant to his critical care pulmonary evaluation and did not deviate from accepted medical practice or cause the injuries to the plaintiff.

In opposition, the plaintiff contends, through his redacted expert affirmation that Dr. Castellano and Dr. Sasso, inter alia, failed to timely treat plaintiff's ulcers and failed to appreciate the high-risk nature of the plaintiff's condition. Plaintiff's expert, a board certified doctor in emergency medicine, medical toxicology and undersea hyperbaric medicine and Medical Director at a hospital for wound healing and hyperbaric medicine, failed to opine specifically as to Dr. Castellano or Dr. Sasso's alleged deviations from accepted medical practice. Plaintiff's expert generally opined that plaintiff failed to be treated as a high-risk patient for pressure ulcers upon admission, and that all defendants failed to evaluate the patient for possible osteomyelitis [FN8] during admission. Plaintiff's expert only specifically opines to Dr. Castallano and Dr. Sasso as follows:

It is my opinion, with a reasonable degree of medical certainty, that the abovementioned [*7]departures from good and accepted medical practice at SIUH by defendants . . . [Dr. Castellano and Dr. Sasso] . . . deprived Mr. Messina of any realistic chance of his stage IV sacral ulcer healing in a more timely fashion and without much of the catastrophic medical complications which he suffered as a result of those departures.

As a result, the redacted expert affirmation submitted by plaintiff lacked factual support for the alleged deviations by Dr. Castellano or Dr. Sasso, and failed specifically to address assertions made by the defendants' expert, Dr. Adler, or otherwise to explain why the treatment rendered by the Dr. Castellano or Dr. Sasso deviated from the accepted standards in medical practice (Rebozo v. Wilen, 41 AD3d 457, 459 [2d Dept., 2007]; Yankus v. Kelly, 72 AD3d 1068, 1070 [2d Dept. ,2010]; Chance v. Felder, 33 AD3d 645, 646 [2d Dept., 2006]). Further, as the plaintiff's expert failed to differentiate between the alleged acts of the various medical providers and also failed to raise a triable issue of fact regarding the competent producing cause of her injuries, the defendants, Dr. Castellano and Dr. Sasso's motion for summary judgment is hereby granted (id.).

Doctor Mobarakai

Dr. Mobarakai, board certified in internal medicine and infection disease, has established that he saw the plaintiff, Robert Messina, throughout his first admission to SIUH as a consultant. Dr. Mobarakai testified that he evaluated the patient, performed tests and recommended treatment consistent with attempting to diagnosis plaintiff's "acute infection with unknown etiology". He indicated that his assessment of pressure ulcers was limited to evaluations of whether they were infected and were a contributing factor to acute infection. He notes that generally according to standard protocol, nurses would render treatment and care to any patients with decubitis ulcers. In addition, Dr. Mobarakai indicated that he would not have expected the plaintiff, Robert Messina's skin to survive the assault of factors which were presented regardless of the treatment performed upon the ulcers.

On or about September 28 and 29, 2006, Dr. Mobarakai examined the plaintiff and noted that the sacral ulcer, after a debridement, could be causing plaintiff's fever but that it was not infected. In fact, throughout plaintiff's first admission Dr. Mobarakai noted that the ulcers never became infected. During the plaintiff's second and third admission to SIUH, Dr. Mobarakai saw the plaintiff several times, evaluated the ulcers which appeared in healing condition and recommended a plastic surgery consult.

Dr. Mobarakai provided the expert affirmation of Dr. David Hirschwerk, board certified in infectious disease, who opined that Dr. Mobarakai did not deviate from accepted medical standards in his treatment rendered to the patient (Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). Dr. Hirschwerk opined that Dr. Mobarakai rendered appropriate work-ups, treatment and properly focused on the plaintiff's critical condition in attempting to locate the underlying infection. Further, he opined that Dr. Mobarakai "appropriately communicated with the nurses who were managing the daily care regarding prevention and treatment of the pressure ulcers according to the hospital's protocol". As a result, defendant Dr. [*8]Mobarakai successfully established his entitlement to summary judgment as a matter of law.

In opposition, the plaintiff's redacted expert affirmation again, only generally opines that the defendants failed to, inter alia, timely diagnoses the plaintiff's osteomyelitis. Plaintiff's expert opines that a timely diagnosis of this infection would have likely contributed to the improvement of plaintiff's sacral ulcer. Dr. Mobarakai, as an infectious disease doctor, has the responsibility of diagnosing infection and as questions of fact exist as to whether the diagnosis of a bone infection was timely, summary judgment for Dr. Mobarakai is in appropriate. Thus, the medical expert affirmations of the parties clearly differ on the alleged deviations by defendant Dr. Mobarakai and, it is well settled that where triable issues of fact exist when the parties offer conflicting expert opinions, a credibility question is presented that requires a jury's resolution (Dandrea, v. Hertz, 23 AD3d 332 [2d Dept. 2005]; Shields v. Baktidy, 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]).

Doctor Babu

Dr. Babu, board certified in neurology, has established that he treated the plaintiff, Robert Messina, on several occasions during his first admission to SIUH. Dr. Babu never treated plaintiff during his remaining admissions. Dr. Babu's evaluations were limited in the field of neurology and he never treated or assessed the plaintiff for his decubitis ulcers, as it is not his specialty and SIUH protocol mandates nurses for treatment and assessment of decubitis ulcers. Further, Dr. Babu, presents the expert affidavit of Dr. Michael Swerlow, board certified in neurology, who opined that Dr. Babu did not deviate from accepted medical practice in his treatment that he rendered to the patient on his admission to SIUH. Dr. Swerlow opined that Dr. Babu properly made rounds, diagnoses in the area of neurology, and work-ups of the plaintiff. He further opined that treatment/ care of decubitis ulcers are within the scope of hospital staff and not that of Dr. Babu, a neurologist. As such, Dr. Babu successfully established his entitlement to summary judgment as a matter of law (Alvarez v. Prospect Hosp. 68 NY2d 320, 325 [1986]).

In opposition, the plaintiff has failed to raise a triable issue of fact (Yankus v. Kelly, 72 AD3d 1068, 1070 [2d Dept. ,2010]; Chance v. Felder, 33 AD3d 645, 646 [2d Dept., 2006]). Plaintiff's redacted expert affirmation fails to raise any questions of fact with respect to any deviations from accepted medical practice against Dr. Babu. The plaintiff did not present any specific deviations on behalf of Dr. Babu in his treatment of plaintiff and further, no evidence that Dr. Babu caused plaintiff's injuries. As the plaintiff's expert failed to differentiate between the alleged acts of the various medical providers, including any alleged deviations by Dr. Babu, defendant's motion for summary judgment is hereby granted (id.).

SI Pulmonary Associates, P.C.

The claims against defendant SI Pulmonary are based upon the theory of vicarious liability for defendants Castellano and Sasso [FN9]. Summary judgment being granted for both [*9]Drs. Castellano and Sasso requires dismissal of the complaint against SI Pulmonary as well (Simmons v. Brooklyn Hosp. Ctr., 74 AD3d 1174, 1178 [2d Dept., 2010]).

II.Defendants Mario Alicandri, M.D., Karin Farid, R.N. and Staten Island University Hospital's motion for Summary Judgment [Motion 003]

Dr. Mario Alicandri

Dr. Alicandri has established that he saw the plaintiff, Robert Messina, one time during the plaintiff's total stay at SIUH. Dr. Alicandri, a private attending physician employed by co-defendant University Physician's Group with co-defendants Dr. Deblasi, Perloro and Bianchi, covered one shift in the CCU on September 2, 2006. Dr. Alicandri presented the expert affirmation of Dr. Poonam Alaigh, board certified in internal medicine, who opined that defendant Dr. Alicandri did not deviate from accepted medical standards in the treatment and care provided to plaintiff, Robert Messina, on one occasion, namely; September 2, 2006. Specifically, expert Dr. Alaigh opined that Dr. Alicandri's notes on September 2, 2006, reflect a full work-up, review of the charts/patient file, and accurate assessment of the patient. As a result, Dr. Alicandri has established through admissible evidence his entitlement to summary judgment as a matter of law (Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]).

In opposition, the plaintiff has failed to raise a triable issue of fact with respect to any deviations from accepted medical practice by Dr. Alicandri. The redacted expert affirmation provided by the plaintiff failed to specify any alleged deviations by Dr. Alicandri (Rebozo v. Wilen, 41 AD3d 457, 459 [2d Dept., 2007]; Yankus v. Kelly, 72 AD3d 1068, 1070 [2d Dept. ,2010]; Chance v. Felder, 33 AD3d 645, 646 [2d Dept., 2006]). Further, as the plaintiff's expert failed to differentiate between the alleged acts of the various medical providers and also failed to raise a triable issue of fact regarding exactly what alleged deviation by Dr. Alicandri caused his injuries, as such, Dr. Alicandri's motion for summary judgment is hereby granted (id.).

Nurse Karin Farid and Staten Island University Hospital

Nurse Farid, a certified wound ostomy continence nurse trained in prevention and management of pressure ulcers, established that she saw the plaintiff on multiple occasions during all of his admissions at SIUH. Nurse Farid, an employee of SIUH, is a nursing coordinator whose job involves reviewing the care/treatment of patients who are suffering from decubitis ulcers and ensuring SIUH protocol is properly followed. Nurse Farid indicated that she followed hospital protocol in her treatment of the plaintiff, Robert Messina, including treating plaintiff with, inter alia, topical creams, mattresses, debridements and timely evaluations. Nurse Farid has presented the expert affirmation of Dr. Poonam Alaigh, who opined that the care and treatment rendered by her was appropriately within SIUH protocol and did not deviate from accepted medical practice. Dr. Alaigh further opined that Nurse Farid was actively employing "all available and appropriate interventions" but that plaintiff, Robert Messina's pre-existing and co-morbid conditions including; obesity, sepsis, fevers, diabetes and system failures prevented healing of the ulcers. Nurse Farid has presented sufficient evidence to meet her burden in establishing summary judgment (Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; [*10]Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]).

In opposition, the plaintiff has raised several triable issues of fact regarding whether the care/treatment by Nurse Farid was within accepted medical practice (Yankus v. Kelly, 72 AD3d 1068, 1070 [2d Dept. ,2010]; Chance v. Felder, 33 AD3d 645, 646 [2d Dept., 2006]). Plaintiff's redacted expert opined specifically with respect to Nurse Farid and SIUH hospital staff and their alleged deviations. The expert opined that Nurse Farid/SIUH, inter alia, should have assessed plaintiff, Robert Messina, as a high-risk candidate for ulcers, deviated from SIUH protocol in timely performing high-risk treatment for pressure ulcers, and failed to assess plaintiff's risk for osteomyelitis. In addition, questions of fact exist as to whether defendant Nurse Farid used appropriate treatments (i.e., topical creams and turning schedules) in her treatment of plaintiff, Robert Messina's decubitis ulcers. Clearly, where, as here, the medical expert affirmations of the parties differ on the alleged deviations by defendant Nurse Farid and SIUH staff, summary judgment is inappropriate (Dandrea, v. Hertz, 23 AD3d 332 [2d Dept. 2005]; Shields v. Baktidy, 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]). It is well settled that where triable issues of fact exist when the parties offer conflicting expert opinions, a credibility question is presented that requires a jury's resolution (id.). As a result, summary judgment in favor of Nurse Karin Farid and SIUH is denied.

III.Defendants Drs. Deblasi, Perloro, Bianchi and University Physicians Group and Dr. Ripoll and Regan & McGinn's motion for summary judgment

Motion [004]

Drs Deblasi, Perloro, Bianchi and University Physicians Group

Dr. Joseph Deblasi, board certified in internal medicine, was plaintiff's private attending physician prior to, and including, his first admission at SIUH. Dr. Bartolo Perloro, also board certified in internal medicine, acted as plaintiff's attending several times during his admission to SIUH. Dr. Guilio Bianchi, board certified in internal medicine, was plaintiff's private attending for his second admission to SIUH and evaluated him on multiple occasions during that admission. Drs. Deblasi, Perolo and Bianchi are all associates with co-defendant University Physicians Group, the claims against which are vicarious in nature. The aforementioned doctors have provided the expert affirmation of Peter M. Pasley, M.D., who opined that each doctor did not deviate from accepted medical standards in the treatment they each rendered to the plaintiff, Robert Messina, upon his various admissions to SIUH.

Dr. Pasley opined that Dr. Deblasi did not deviate in assessing plaintiff's high-risk factor for decubitis ulcers considering his pre-existing conditions which Dr. Deblasi, as his private attending prior to admission, had previously diagnosed. He also opined with respect to Drs. Peloro and Bianchi, that their treatment of the plaintiff was well within the accepted medical standards as they both ran full work-ups, assessments and recommended timely/appropriate treatment. Dr. Pasley also contends that Drs. Deblasi, Peloro and Bianchi all properly treated the plaintiff for his multiple conditions, including ordering a vast amount of consultations in areas including;

infectious disease, neurology, critical care, gastroenterology, pulmonary/critical care, hematology/oncology, wound specialists, stoma management, cardiology, rheumatology, [*11]urology, radiology, general surgery, vascular surgery, nutrition, dermatology, physical rehabilitation and nursing.

Further, Dr. Pasley indicates that hospital protocol for decubitis ulcer treatment/care ultimately remains on the special nursing staff designated and trained to render such treatment and that defendant doctors did not deviate in assessing plaintiff's decubitis ulcers, recommending treatment and monitoring them. As a result, the defendant Drs. Deblasi, Peloro and Bianchi established their entitlement to summary judgment as a matter of law by deducing expert opinion that they did not deviate from accepted medical practices in the treatment they rendered as plaintiff's private attending physicians (Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]).

In opposition, the plaintiff has successfully raised triable issues of fact regarding whether plaintiff's private attending physicians, defendants Drs. Deblasi, Perloro and Bianchi deviated from accepted medical practice in the treatment and care they rendered to him during his several admission to SIUH (Dandrea, v. Hertz, 23 AD3d 332 [2d Dept. 2005]; Shields v. Baktidy, 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]). Plaintiff's expert specifically opined at to plaintiff's private attending physicians alleged deviations that they failed to, inter alia, evaluate the plaintiff for osteomyelitis during his stay, failed to alter treatment for pressure ulcers for this high-risk plaintiff and failed to treat these ulcers appropriately. The expert further opined that the delay in diagnosing osteomyelitis "likely contributed to the failure of Mr. Messina's sacral pressure ulcer to heal". As a result, the parties have presented conflicting expert affidavits, raising numerous questions of fact with respect to the plaintiff, Robert Messina's private attending physicians alleged deviations from accepted medical practice in their respective treatment of the plaintiff, and summary judgment for Drs. Deblasi, Perloro, Bianchi and University Physicians Group, is therefore denied.

Dr. Ripoll and Regan & McGinn

The plaintiff was admitted, on his third visit to SIUH, by Dr. Lucinda Ripoll for treatment of a potentially infected decubits ulcer. Dr. Ripoll was employed by co-defendant Regan & McGinn, the claims against which are vicarious in nature. Dr. Ripoll treated the plaintiff on his third visit to SIUH and again as his private attending physician, on June 12, 2007, the plaintiff's fourth visit to SIUH. She has established, through admissible evidence, that she properly treated the plaintiff, Robert Messina. Dr. Ripoll also provided the expert affirmation of Dr. Peter M. Pasley who opined that Dr. Ripoll's treatment of the plaintiff was well within accepted medical standards. Specifically, Dr. Pasley opined that Dr. Ripoll's admission was directly related to a possible infected decubitis ulcer and that the treatment she ordered or administered; timely rounds, wound care specialist evaluations, debridements, and a hip x-ray to assess for possible osteomyelitis, was well within medical standards. As a result, the defendants Dr. Ripoll and Regan & McGinn have established their entitled to summary judgment as a matter of law (Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long [*12]Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]).

In opposition, the plaintiff has failed to raise a triable issue of fact (Dandrea, v. Hertz, 23 AD3d 332 [2d Dept. 2005]; Shields v. Baktidy, 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]). The plaintiff's redacted expert affirmation has failed to opine regarding any specific deviations by Dr. Ripoll. The evidence presented established that Dr. Ripoll admitted plaintiff to SIUH for treatment of an infected ulcer and ordered proper treatment/evaluations regarding osteomyelitis. There are no questions of fact requiring a jury resolution and therefore, summary judgment is appropriate in favor of Dr. Ripoll and Regan & McGinn.

Accordingly, it is

ORDERED that pursuant to plaintiff's attorney affirmation, this case is hereby discontinued in its entirety against Drs. Maniatis, Ciccone, Kilkenny and Chalhoub, and it is further

ORDERED that plaintiff's second cause of action, lack of informed consent, is hereby dismissed against all defendants, and it is further,

ORDERED that the portion of Motion 002 requesting summary judgment for defendants Michael Castellano, M.D., Louis Sasso, M.D., Arun Babu, M.D. and Staten Island Pulmonary Associates, P.C. is hereby granted, and it is further

ORDERED that the complaint and all cross claims are hereby dismissed against defendants Michael Castellano, M.D., Louis Sasso, M.D., Arun Babu, M.D., and Staten Island Pulmonary Associates, P.C., and it is further

ORDERED that the portion of Motion 002 requesting summary judgment for defendant Neville Mobarakai, M.D. is hereby denied, and it is further

ORDERED that the portion of Motion 003 requesting summary judgment for defendant Mario Alicandri, M.D., is hereby granted, and it is further

ORDERED that the complaint and all cross claims are hereby dismissed against defendant Mario Alicandri, M.D., and it is further

ORDERED that the portion of Motion 003 requesting summary judgment for Karin Farid, R.N., and Staten Island University Hospital is hereby denied, and it is further

ORDERED that the portion of Motion 004 requesting summary judgment for defendants Joseph Deblasi, M.D., Bartolo Perloro, M.D., Giulio Bianchi, M.D., and University Physicians Group, P.C., is hereby denied, and it is further

ORDERED that the portion of Motion 004 requesting summary judgment for Lucinda Ripoll, M.D., and Regan & McGinn, M.D., P.C.'s is hereby granted, and it is further

ORDERED that the complaint and all cross claims are hereby dismissed against defendants Lucinda Ripoll, M.D., and Regan & McGinn, M.D., P.C., and it is further

ORDERED that the caption is hereby amended to reflect the remaining parties, namely; Joseph Deblasi, M.D., Bartolo Peloro, M.D., Giulio Bianchi, M.D., University Physicians Group, P.C., Neville Mobarakai, M.D., Karin Farid, R.N., and Staten Island University Hospital, and it is further

ORDERED that any and all additional requests for relief are hereby denied, and it [*13]is further

ORDERED that this case proceed immediately to trial, and it is further

ORDERED that the Clerk enter Judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: Nov 5, 2010E N T E R,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court Footnotes

Footnote 1:The Court notes that plaintiff previously voluntarily discontinued the action against defendants Golden Gate Rehabilitation and Health Care Center, Inc., Agnes Sturzynski, N.P., Bertram Alpert, M.D., Richmond Kidney Center and Eileen Slavin, R.N. As a result, no reference to these defendants will be made herein as the complaint has been voluntarily discontinued against them and the caption shall be amended to reflect as such.

Footnote 2:The Court also notes that plaintiff, in his opposition papers, is now voluntarily discontinuing the action against defendants THEODORE MANIATIS, M.D., RALPH CICCONE, M.D., THOMAS KILKENNY, M.D., AND MICHEL CHALHOUB, M.D. As a result, no reference to these defendants will be made herein as the complaint is now voluntarily discontinued against them and the caption shall be amended to reflect as such.

Footnote 3:The Court notes that during the discovery phase the plaintiff waived the depositions of defendants Louis Sasso, M.D., Theodore Maniatis, M.D., Thomas Kilkenny, M.D., Michel Chalhoub, M.D., Staten Island Pulmonary Associates, P.C., and Arun Babu, M.D.

Footnote 4:Plaintiff, Carol Messina, has a derivative cause of action for loss of services.

Footnote 5:Nurse Farid is trained in prevention and management of pressure ulcers and is a Certified Wound Ostomy Continence nurse.

Footnote 6:Consults were done in the areas of surgery, psychiatry, podiatry, orthopedics, urology, hematology and nutrition.

Footnote 7:The Court notes that plaintiff's contention that several of defendant's experts lack qualifications in the specialty involved is irrelevant at this stage. Generally, in qualifying experts they 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, all of defendants' experts clearly possess the requisite skill, training, education, knowledge or experience to give a reliable opinion on the treatment and care received by plaintiff under defendant's care at this summary judgment stage.

Footnote 8:A bone infection.

Footnote 9:As previously indicated, the other doctors affiliated with SI Pulmonary have been discontinued from the action.