Colletti v Schiff
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Colletti v Schiff 2011 NY Slip Op 32373(U) August 25, 2011 Sup Ct, NY County Docket Number: 105996/2008 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: Notlor of Motlonl Odor to Show Currr Anawering Affldrvtu - NEW YORK COUNTY PART 6 - - Affidavltr - ejlhlbitr ... 1J - Exhlbtu /b I? Replying Affldavb Cross-Motion: '0 Yea a No AU6 29 2011 Upon the fomgolng paprn, tt I ordrmd that thlr motlon r NEW YORK COUNTY CLERKS OFFICE 4 Dstad: I Check one: &lNAL Cheek If approprfate: NON-FINAL DISPOSITION DISPOSITION DO NOT POST 0 SUBMIT ORDER/ JUDG. J.S. C. 0 REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] WlLLIAM SCHIFF, M.D., Defendant AUG 29 2011 Defendant William Schiff, M.D., moves, by order to show cause, pursuant to C.P.L.R. Rule 3212, for an order granting him summary judgment dismissing this action in its entirety. Plaintiff opposes the motion. This action sounding in medical malpractice and lack of informed consent d s e s out of a course of treatment for plaintiff s vision problems, In October 1999, several years prior to treating with Dr. Schiff, plaintiff underwent photorcfractive keratectomy surgery (commonly known BS LASIK surgery). In May 2000, plaintiff underwent a touch up** the right eye. In May 2005, of plaintiff consulted with T.J. Huffnagel, M.D., Stahl Eye Center to discuss how to improve his of vision and, according to plaintiff, to discuss the option of a lens transplant. On August 12,2005, plaintiff presented to Richard Braunstcin, M.D.,refractive surgean, complaining of blurry vision a and glare in his right eye. D . Braunstcin diagnosed early cataracts and referred plaintiff to Lama r A. Al-Aswad, M.D., a glaucoma evaluation. Dr. Al-Aswad identified him as a glaucoma for suspect. [* 3] On September 23,2005, plaintiff presented to D .Schiff, a retinal specialist, for the r f r t time. H had increased glare and wavy, blurry vision. Dr. Schiff found cataracts in both eyes is e and a mild macular pucker (also referred to as an cpiretinal membrane) in the right eye. Dr. Schiff believed that the cataracts should be removed and plaintiffs vision retested thereafter. If plaintiffs aua vision after the surgery wm 20130 or worse, Dr. Schiff thought that the m c l r pucker should be removed. r In late November 2005, D .Al-Aswad noted that the visual acuity in the right cye had deteriorated to 20/80. Plaintiff also complained of ocular pressure. D .AI-Aswad treated the ocular r pressure with drops and then a trabeculoplasty. On November 28,2005, D .Braunstein performed r cataract surgery with intraocular lens placement. Plaintiff asserts that this procedure was done to facilitate the surgery that Dr. Schiff would perform. On December 12, 2005, plaintiff presented to D .Schiff, complaining of a bit of r glare in his right eye. According to the chart, acuity in the right eye was 20/70.2. Because plaintiffs vision was worse than 20130, D .Schiff scheduled the surgery to remove the macular r pucker for Dccembcr 14,2005. Dr. Al-Aswad cleared plaintiff for surgery, setting forth that ocular pressurc was not a reason to delay the procedure. Dr. Schiffadvised plaintiff of some risks of the surgery, although thc parties dispute which risks were disclosed. On December 14,2005, plaintiff signed a consent form for anesthesia and operative procedure (described as a pars plana vitrectomy and membrane peel). The surgery was rescheduled -2- [* 4] for December 15,2005 and performed on thnt dale without complications. Dr. Schiff certified the con~enlform the same day. Bclow the ccrtificntion, Dr. Schiff handwrote a detailed statement of the risks involved, including rccurrence of the pucker, loss of vision, and hypotony. According to the operative report, an additional procedure, an endophotocoagdlntion for prophylaxis against retinal detachment, was performed on December 15,2005. Plaintiff asserts that he was unuware of this procedure and did not consent to it. Plaintiff was discharged to his home the same day. Plaintiff saw Dr. Schiff n few days aRer the surgery. At a second follow-up appointment on January 10,2006, plaintiff complained of glare in his right eye. D .Schiff referred r him to Ronnld Gentile, M.D., at New York Eye and Ear Hospital. Plaintiff presented to Dr. Gentile on January I 1, 2006, with continuing complaints of vision problems in his tight eye. Dr. Gentile noted that plaintiffs visual acuity was 20/40+1 in liis right eye. Dr. Gentilc referred plaintiff to Paul A. Sidoti, M.D., at New York Eye and Ear Hospital. At two subsequent follow-up visits with Dr. Schiff?plaintiff complained of headache and glare. On March 17,2006, plaintiff reported a decline in his visual acuity. By April 3Q,2006, plaintiffdcmonstmted a 20/25+ visual acuity in his right eye. Further testing demonstrated, according to Dr. Schiff, a reasonable outcome for vitrectomy surgery. Plaititiffs last visit with Dr. Schiff occurred on September 15,2006; he reported that his vision in his right eye WRS as if he were looking through water and that he was having trouble focusing, although he states that lie was unable to describe the problcm adequately at the time. He saw Dr. Gentile for three visits during this pcriod, Dr. Gentile documcnted his vision w 20/30+2 on June -3- [* 5] 24 JdXk5;20/25+ on September 16,2006; and 20/30 -I + I on September 25,2006. Dr. Gentile noted that un issue of low intra-ocular pressure (hypotony) had resolved but that the epiretinal membrane had recurred in the right cye. Plaintiff continued to see a number of ophthalmologists following his last visit to Dr. Schiff. As o r his examination before trial, plaintiff was treating with Nathan Radcliff, M.D., a glaucoma specialist at Weill Cornel1 Medical Center. Now, Dr. Schiff seeks summary judgment, arguing that there are no issues of fact that his treatment of plaintiff was within accepted standards of medical care; that he obtnined plaintiff s infonned consent; and that thcrc was no deparlurc from accepted medical practice that proximately caused plaintiffs injuries, A defendan1 moving for summary judgment in a mcdicol malpractice action must make a -a facie showing o r entitlement to judgment as a mnttcr of law by showing that in treating the plaintiff there was no departure from good and accepted medical practice or that any departure was not the proximate cause of the injuries alleged. J7oc;lue v. NJobel 7 3 A.D.3d 204, s , 206 (1st Dep t 20 IO) (citations omitted). To satisfy the burden, adefendant in a medical malpractice action must present expert opinion testiiuony thnt is supported by the fncts in the record nnd addresses the essential allegations in the bill of pnrticutnrs. If thc movant makes a af& g showing, the burden shifts to h e party opposing the motion to producc cvidcritiary proof in admissible Form sufficient to establish the existence of material issues of fact which require n trial of the action. &cz \ * Prowecrt H m , 68 N.Y.2d 320, 324 (1986) (citation omitted}. Specifically, in a medical malpractice action, a plaintiff opposing a summary judgment motion -4- [* 6] must demonstrate that the defendant did in fact commit malpractice and that the malpractice w s the proximate cause of the plaintiffs a injuries. . . . In order to meut thc required burden, the plaintiff must submit an affrdavit f o a physician attesting that the defendant rm departed f o accepted medical practice and that the departure was rm the proximate cause of the iqjiurits alleged. m73 A.D.3d at 207 (internal citations omitted). A defendant moving for summaryjudgment , on a lack of informed consent claim must demonstrate that the plaintiff was informed of the alternatives to and the reasonably foreseeable risks and benefits of the treatment, and that a reasonably prudent patient would not have declined to undergo the [treatment] if he or shc had been informed of the potential complications[.] Jcoi Hou Chan. 66 A.D.3d 642,643 (2d Dap t 2009); j & ~ Public Health Law 0 2805-d( I ). In support of summaryjudgment, Dr. Schiffoffers the affirmation of Wayne Fuchs, M.D., board certified ophthalmologist licensed to practice in New York. H opines that, upon a c rcvbw of the medical records and the deposition transcripts, D . Schiff did not depart f o the r rm standard of care nor proximately cause any of plaintiffs injuries. D .Fuchs asserts that the right eyc r vitrectomy and membrane peel were indicated and that plaintiffs informed consent was obtained. D .Fuchs maintains that Dr. Schiffdiscussed the risks and benefits of the procedure. He opines that r the procedure and the follow-up care were appropriate. Although plaintiff complained of glare,Dr. Fuchs maintains that complaints of glare are not unusual for patients who have had their corneas reshaped by LASIK surgery or for patients on Cyclogel medication, which causes pupil dilation. Further, while plaintiff had complaints of vision problems in his right eye on September 15,2006, his recorded visual acuity at that point was better than it wm pre-operatively. Dr. Fuchs mdntains -5- [* 7] that plaintiffs opthalmological complaints are rclntcd to his cornorbiditics tmd not the right eye membrane peel nnd that recurrence of an epiretinal rncrnbrnne is a known risk of a membrane peel. In opposition, plaintiff offers his own affidavit as well as an experl s affirmation. Plaintiff sets forth that lie first lemied that he had a epiretinal membrane in 2005 from Dr. Huffhagel, who told him that rcmovnl of the membrane would not improve his vision. According to plaintiff, Dr. Braunstein did not think that n lens transplant was indicated nordid he think plaintiff had cataracts. Plaintiff asserts that at his Grst visit with Dr. SchiCf, ha did not recommend surgery for the membrane. Plaintiff claims that it was only when he encountered Dr. Schiff while waiting for an nppointmcnt with Dr. AI-Aswnd that Dr.Schiff brought plaintiff into an examination room and told him that he was a good candidate for membrane peel surgery. Plaintiff sets forth that Dr. Schiff told h m to first undergo cataract surgery so that Dr. Schiff would haven clearer view into the i back ofplaintiff s eye. Plainlifftnaintnins that Dr. Brnunstein performed the catnract surgery at the sole direction of Dr. Schiff. As to his informed consent claim, plaintiff admits that Dr. Schiffdisclosed some risks of the vitrectomy and mernbranc pcel procedure but contends that Dr. Schiff only disclosed to him the minor risks thnt Dr. Schiff said hc must disclose by law and then assured him that everything would be fine. Plaintiff further asserts [hat Dr. Schiff performed an unconsented-to laser procedure on the edges of his retina in addition to the vitrectomy and peel procedure, although plaintiff does not allege that this allcged laser procedurc caused his claimed injuries. -6- [* 8] Plaintiff M e r alleges that at a follow-up appointment on December 27,2005, hc told Dr.Schiff that light W I L ~ properly enteringthe back of his eyc and that his retina felt thicker. not Plaintiff asserts that at this visit, Dr. Schiff took pictures of his eye, but plaintiff dincarncd no differences between the images of his retina prc-opcrativcly and poat-operatively. Plaintiff states that D .Schifftold him that there was supposed to be a dimple in his retina but that the dimple was r gone due to his membrane, although D .Schiff opined that it was possible that the dimple could r reform. However, D .Schiff assured him that the membrane w s indeed, peeled. Plaintiff alleges r a, that at a subsequent follow-up appointment, Dr. Schiff squeezed his eye so hard that he screamed. Plaintiff states that Robert Lamomoff, an optometrist on Long Island, told plaintiff that D .Schiff r had messed [Mm] up., Plaintiff alleges that D .Schiff 8 malpractice has caused him permanently r distorted vision in his right eye, preventing him from being able to read, drivc a car, or participate in activities he previously enjoyed, such BS target shooting and studying languages. Plaintiffs expert affirmation is from Calvin Grant, M.D., board certified a ophthalmologist licensed to practice medicine in the state of Illinois. Dr. Grant opines that, in his review of the medical records and depositiontranscripts,D .Schiff departed from good and accepted r medical practice in his care and treatment of plaintiff, and that said departures proximately caused plaintiffs claimed injuries. H opines that D .Schiff never completelycxciscd plaintiffs apiratinal e r membrane, causing rc-proliferation and progression of the cpirctinal membrane. Additionally,D . r G a t opines that plaintiff had glaucoma and that his refractoriness for glaucoma management rn made glaucoma progression a risk of the vitrcctomy procedure. He opines that there is no indication r that D .Schiff took precautions during the vimctomy to decrease plaintiffs risk of experiencing -7- [* 9] glaucoma progression. D .G a t believes that the procedures performcd on plaintiff were elective r rn and should not have been performed, and that it w89 a brcach of the standard of care to do so. He opines that this breach directly caused plaintiffs pain, suffering, and ultimate irreveraible vision loss. In reply, D .Schiff argues that since plaintiffs expert failed to addmss the informed r consent claim, this claim must be dismissed. D .Schiff M a r argues that D .Orant, as an out-ofr r state physician, cannot offer an affirmation.' Dr. Schiff asserts that, even if the court were to accept the affirmation, D .Orant mischaracterizes the record; fails to set forth the appropriate standard of r care; and only offers a series of conclusions unsupported by scientific evidence. D .Fuchs offers r a supplemental affirmation in the reply, setting forth that recurrence of an epiretinal membrane is a known risk of B membrane peel that would have been disclosed. D .Fuchs opines that lhere is no r evidence that D .Schiff incompletely excised the membrane, but regardless, D .O a t fails to opine r r rn that incomplcta excisionof thc upiretinal membrane duringa membrane peel is a dcparturaf o the rm standard of carc. In Dr. Fuchs' opinion, incomplete excision of the epiretinal membrane is not a departure and he states that it is common not to entirely remove the membrane during a membrane peel. He opincJ that there is no support for Dr. G a t s claims that plaintiff had refractory rn' (uncontrollcd)glaucoma prior to Dr. Schiff s surgery; rather, the records indicate that Dr. Al-Aswad, a glaucoma specialist, cleared plaintiff for surgery. ' In accordance with a directive by the court, plaintiffs attorney subsequently submitted a certification of conformity stating that he is an attorney admitted in Illinois and can aasert the correctntss of the Illinois notary. Dr. Schiffobjected to this certification in a letter, but that letter is not part of the formal record for this motion. The court will decide the merits of this motion. -8- [* 10] ! D . Schiff has met his r & f burden for summery judgment. Plaintiffs oppositionis not suffdcnt to rebut this showing. While there may be factual disputesover what was said at various stages of the treatment, expert medical opinion evidence is the hallmark of medical malpractice lawsuits. &g 73 A.D.3d at 207. Thcsc opinions must bc based on facts in the record or personally known to the witness . . . [and not] founded upon surmise or supposition. CiW H o , 2 I7 A,D.2d 1 10, I 17 (1 st Dep t 1995) (internal citationsand quotations omitted). The only deviation from the standard of care that Dr. Orant specifies is his opinion that the procedure was elective and should not hava occurred due to issues with tha management of plaintiffs glaucoma. The record docs not support this statement. Nowhcre in the record is there support for the claim that plaintiffs glaucoma was refractoryor resistant to treatment. Furthermore, D .Orant s claim that D .Schiff s procedure caused plaintiffs glaucoma to worsen r r is at odds with his claim that the glaucoma was hard or impossible to control prior to the surgery. Summary judgment on the medical malpractice cause of action is therefore granted. As to the informed consent claim, D .Orant s silence on the issue leaves D .Fuchs conclusionson the matter r r unchallenged and warrants dismissal of the cause of action. v. Pllnik, 15 N.Y.3d 907 (2010). Accordingly, it is hereby ORDERED that Willlam Schiff,M.D. s motion for summaryjudgmant is granted in its entirety and the Clerk is diracted to enter judgment in favor of said defendant, dismissing the FILED action in its entirety. AUG 29 2011 Date: August qfi011 NEW YORK COUNTY CLERK S O F F V -9-
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