Kasatova v Pace
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Kasatova v Pace 2011 NY Slip Op 32890(U) October 27, 2011 Sup Ct, NY County Docket Number: 112420/09 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. ANNEDON 111112011 [* 1] - NEW YORK COUNTY SUPREME COURT OF THE STATE OF NEW YORK 6 PART //J+JO INDEX NO. Iof MOTION DATE -vMOTION IEQ. NO. MOTION CAL. NO. The followlng papsn, nurnbsrmd 1 to Notice of Motlonl Order to $how Cauro Anrwsrlng Afiidavitr - Affldavlti - Exhibltr ... d - Exhlbttr 17 - 1 8 I Aoplying Afffdavttr Crosa-Motion: 0 Yes Upon the forsgolng pspon, It I8 ordsrmd that thlr rnotlon THIS NIUTIOrd IS DECIDED -IN P,GCORDANCE WITH THE ACCOM?ANYING ME;d;WkA:~SUfbl DECISION FILED NOV 012011 u NEW YORK CLERKS OFFICE ~y Dated: Check one: Check if appropriate: POSITION d 0 DO NOT POST 0 SUBMIT ORDER/ JUDQ. J.S. C. m [I N O ! ~ S I T I O h I I -c* 0 REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] Index No. 1 12420/09 Plainti f f, -against- GEORGE PACE,D.P.M., MANHATTAN FOOTCARE and GEORGE PACE DPM PLLC, FILED NOV 0 1 2011 NEW YORK In Motion Sequence Number 002, defendants George Pace, D.P.@@#!f%c@@Ws Oeorge Pace DPM PLLC (the PLLC )move for summary judgment and dismissal of the complaint under C.P.L.R. Rule 3212on the grounds that there are no triable issues of fact and under Rule 321 1 on the grounds that plaintiff has failed to state a cause of action against the PLLC. Plaintiff Natalya Kasatova opposes the motion on the grounds that triable issues of fact remain. The complaint w s a previously dismissed against defendant Manhattan Footcare in this court s decision and order signed on M t h 11,2010, on Motion Sequence Number 001. ac This cause of action sounding in podiatric malpractice and lack of informed consent arises out of Dr. Pace s surgay to and treatment of Ms.Kasatova sright fifth toe in 2007. Dr. Pace s medical chad for plaintiff reflects that on March 10, 2007, plaintiff presented to Dr.Pace with complaints of pain at her right fourth interspace secondary to a callus or abscess buildup. She reported experiencing pain in all shoes for a number of months. Dr. Pace observad a soft corn on her right fifth digit. He took x-rays of both feet. H discussed with plaintiff conservative treatment e versus surgical treatment to address her painful corn. D .Pace s notes reflect that plaintiff desired r OFFICE [* 3] surgical removal of the corn m soon as possible. He scheduled plaintiff for a hammertoe rcpair to the right fifth digit. On M r h 21,2007, Dr. Pace provided plaintiff with a consent form for a repair to ac her hammertoe by removing soft tissue, bone, and skin from the ffh tot on her right foot. The it consent form sets forth that the nature and purpose of the operation, alternative treatments, risks, possible consequences, and possible complications had been explained to Ms.Kasatova in nonmedical language that she understood. The form furtherrecites that plaintiff was given no guarantee or assurancs a to the results, and that complications could arise. The form then lists possible s complications of the procedure, including swelling, scarring, disability, delayed healing, no improvement to the condition, and tho possibility of further surgery. Dr. Pace testified at his examination before trial ( EBT ) that he reviewed the contents of the consent form and discussed the possible complications with plaintiff prior to administering the anesthesia, showed her on a diagram what he was going to do, and asked her if she had any questions. Plaintiffs signature is on the consent form twice, and witnessed. Dr. Pace then administered the anesthesia and performed the hammertoe procedure (also known ag an arthroplasty). He testified that he retracted the skin and tendon and gauged with his finger how much bone to remove. He testified that plaintiff has a short metatarsal so he did not want to be too aggressive with the amount of bone removed. H removed the bone, sutured the e wound, wrapped it with a compression bandage, and applied a surgical shoe. -2- [* 4] Plaintiff was seen by Dr. Pace approximately once a week for six weeks after the surgery. On March 26,2007,the records reflect that plaintiff continued to wear the surgical shoe, and that Dr. Pace observed no pain, swelling, or infection. On April 2,2007, D .Pace debrided the r surgical area and removed plaintiffs sutures. On April 9, 2007, D .Pace noted no pain, mild r swelling, and no infection. On April 16,2007, plaintiff complained of a lot of pain on the inside of the fifth right digit and described the pain as the same way it felt prior to the surgery. Dr. Pace took M x-ray on that day and noted good alignment. On April 23, 2007, Dr. Pace noted decreased swelling and pain. On April 30,2007,D .Pace noted no pain and that plaintiff was wearing a dress r shoe with an open back. He noted mild swelling at the toe. He showed plaintiff how to massage the m a at home to reduce the swelling. Plaintiff w s to return in two weeks for her eight-week posta operative appointment. Dr. Pace testified that the pain and swelling that plaintiff experienced in the weeks following the surgery w s normal. a Plaintiff did not return for her eight-weak appointment. She returned to Dr. Pace on August 6,2007, and he noted that she came to the ofice in two-and-onc-halfinch heels that she reported as comfortable. Dr. Pact noted that the digit w s still mildly swollen so he administered a an injection of Lidocaine and Dexamethasone at the base of the digit to reduce the swelling. His a assessment w8s that plaintiffs condition w s normal for a four-month post-operative follow up. Dr. Pace noted that the hammertoe at the right fourth interspace had completely resolved. H told e plaintiff to continue to massage the area and reschedule an appointment in another two months. Dr. Pact s notes reflect that on October 11,2007, plaintiff telephoned his ofice and w s very upset because she felt that the problem wt her toe had come back. She wanted to be seen a ih -3- [* 5] right away regarding the pain and swelling at the surgical site. D .Pace saw plaintiff that day at his r office, and his not- reflect that she w a unconaolable about the state of her right fifth toe. He examined her foot and his notes reflect that he found mild swelling on the fifth right toe and mild tinea and intcrtriginow maceration, or what appeared to be athlete s foot, at the fourth right interspace. Dr. Pace took an x-ray that day, the results of which indicated to him that plaintiff was having slight bone regeneration at the surgical site. He testified that the appcarancc was normal for six months post-arthroplasty. D .Pace prescribed physical therapy to aid in decreasing the swelling, r administered an injection of Lidocaine and Dexamethasone, prescribed Loprox cream for the fungal infection, and told plaintiff to return in four w e s ek. On October 15,2007, plaintiff returned to Dr. Pace s ofice and saw his associate, Dr. Lisa Shah. Dr. Shah did blood work and cultured the surgical area and found no infection. On a October 22,2007, plaintiff presented to Dr. Paca, and his notes reflect that she w s not feeling too bad that day. She complained that the Loprox was not helping. She reported that she had Seen her primary care physician, who told her to use Betadine on the area. Dt. Pace testified that ha did not agree with administering Bctadine because it has no antifungal properties. H reviewed plaintiffs e a blood work results with her from the prior week, which he testified wem all normal. Since there w s no infection, he administered another Lidocaine/Dexamethasone injection for the swelling and instructed plaintiff to continue to massage the area. She reported that she had not started physical therapy. D .Pace told plaintiff to return in two weeks. On November 5,2007, D .Pace s notes r r reflect that plaintiff arrived to her appointment wearing a two-and-onc-half inch heel with a closed toe and reported that she wm feeling better. The pain and swelling had decreased. Dr. Paw [* 6] observed B mild flaking callus at the fourth right interspace. Plaintiff still had not started physical therapy, He gave plaintiff another injection and removed the flaking skin. He advised her to continue the massage and begin physical therapy. This was plaintiffs last appointment wt Dr. ih Pace. Plaintiff presented to Galli Podiatric Foot & Ankle Associates, P.C.( Galli P.C. ) on November 20,2007, and reported that her toe was still painfbl and swollen. On that day, Galli P.C. x-rays of plaintiffs foot. She returned to Oalli P.C. December 10,2007, but failed to took on keep an appointment scheduled for January 15,2008, and thereafter did not return to Galli P.C.for ten months. On October 9,2008, plaintiff presented to Oalli P.C. ih complaints of pain. Notes wt from November 4,2008, indicate that plaintiff and w s to see Elisa Kavanagh, D.P.M., for a second a opinion. Plaintiff was next seen at Galli P.C. November 12,2008, complaining of severe pain, on and an examination revealed edema and erythema. On January 19,2009, she presented to cfalli P.C. w t complaints of increased pain and cdcma at the right fourth Interspace with mild erythema with ih maceration. On January 24,2009, Dr. Kavanaugh excised a hypertrophic bone spur from the right fourth interspace. On February 12, 2009, plaintiff reported that her pain was decreased and on March 9,2009, she was noted as much improved. By M r h 28,2009,plaintiff reported that she w s ac a free of pain, On May 19,2010, plaintiff presented to defendants independent medical examiner Ivan Herstik, D.P.M., took x-rays and examined her. In his report, Dr.Herstik concluded that who plaintiff has a full range of motion, has no permanent disability or dysfunction on the right fifth tot, -5- [* 7] has no adverse gait changes, and is not limited in any activity or job fhction. He reported that.she complained that she has to WCEUa larger size shoe on her right foot and has to be careful which style of shoes she wears. Dr. Herstik s report indicates that plaintiff reported no pain and that she can exercise on a treadmill without complaint. Plaintiff alleges that D . r Pace improperly and ineffectuallyperformed the hammertoe repair; mismanaged her post-surgical care and ignored her complaints of pain, gait change, and lesions; caused her condition to progress and caused her to need fhthcr surgery;and failed to advise her ofthe risks associated with his treatment. She alleges that Dr. Pace s negligent care proximately caused, adverse changes to her gait; pain; physical deformity; the need to undergo further surgery;and burning, bruising, and scarring at the surgical site. Defendants move for summaryjudgment, contending that there me no triable issues of fact. A defendant moving for summary judgment in a podiatric malpracticc action must make a a&& showing of entitlement to judgment as a matter of law by showing that in treating the plaintiff there ww no departure f o good and accepted [podiatric] practice or that any departure rm w s not the proximate cause of the injuries alleged. w v. N o w 73 A.D.3d 204,206 (1st a s Dep t 2010) (citations omitted). && v. y u 66A.D.3d 642 (2d Dcp t 2009). To satisfy the burden, the defendant must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars. A.D.3d at 206; m, 73 66 A.D.3d at 642. Conclusoxy statements which do not address the allegations in the pleadings are insufficient to demonstrate entitlement to summary judgment. & -6- [* 8] ,- 65 A.D.3d 101,108 (1st Dep't 2009). Failure to demonstrate a h faEie case requires denial of the summary judgment motion, regardless of the sufficiency of the opposition papers. enoc -rse E t Hosh, 68 N.Y.2d 320,324 (1986). Ifthe defendant makes a-& showing, the burden shifts to the party opposing the motion 'Yo produce evidentiary proof in admissible form sufficient to establish the existence of matarial issues of fact which require a trial of the action." (citation omitted). Specifically, in a podiatric malpractice action, a plaintiff opposing a summary judgment motion m s demonstrate that the defendant did in Fact commit malpractice ut and that the malpractice w s the proximate cause of the plaintiffs a injuries. , . .In order to meet the required burden, the plaintiff must submit an affidavit f o [anexpert in podiatric care] attestingthat the rm defendant departed f o accepted [podiatric] practice and that the rm departure was the proximate cause of the injuries alleged. a A.D.3d at 207 (internal citations omitted). 73 In support of their motion, defendants submit an expert affidavit from Edwin W. Wolf, D.P.M., M.S., board certified podiatric surgeon licensed in New York and New Jersey. Dr. a Wolf states that he reviewed the pleadings, plaintiffs medical records and f l s Dr. Herstik's report im, and f l s and the parties' EBT testimony. In Dr. Wolfs opinion, neither Dr. Pace nor the staff at im, his practice departed f o the standard of care in treating plaintiff, nor did their care i any way rm n cause plaintiffs alleged injuries. He opines that the records indicate that D .Pace had an appropriate r informed consent discussion with plaintiff prior to the arthroplasty which included advising her of the possibility that she would need fiuther surgery or that she may have no improvement. He opines that based on plaintiffs presentation, the arthroplasty was performed appropriately and in the proper -7- [* 9] location, and the appropriate amount of bone was removed. D .Wolf further opines that the pastr operative care wm appropriate, including thu administration of injections to reduce swelling and alleviate discomfort, and the recommendation for physical therapy and massage. The records reflect, to Dr. Wolf, that plaintiffs post-operative complaints were documcntod and appreciated, and that appropriate care was rendered in a timely manner. Further, D .Wolf sets forth,thc records reflect r that plaintiff w s improving between October 22,2007 and November 5,2007, and that she never a returned to Dr. Pace s practice after November 5,2007. As such, D .Pacc did not have a M e r r opportunity to discuss the m t e of a subsequent procedure or any further treatment wt plaintiff. atr ih D . Wolf points out that r the records indicate that plaintiff w s not compliant with D . Pace s a r recommendations for physical therapy and for follow-up appointments. H opines that plaintiffs e failure to follow Dr. Pace s recommendations negatively affected her condition. Dr. Wolf opines that plaintiffs bone regrowth was a known and unpredictable complication and that it occurred in the absence of negligence. Based on his review of the preoperative and postoperative f l s of plaintiffs foot, Dr. Wolf opines, with a reasonable degree im of podiatric medical certainty, that the October 11, 2007 film demonstrates a regrowth of bone whereas the April 16,2007 fl docs not. Further, given the gap between the time plaintiff first im presented to Oalli, P.C. and the time the bone spur was removed over one year later, Dr. Wolf opines that there is no basis for plaintiffs claim that D .Pace failed to timely diagnose her condition. r He opines that Dr. Kavanagh only removed the regrowth of bone, nothing further, during the procedure on Janua~y 24,2009. [* 10] In opposition to defendants motion, plaintiff maintains that issues of fact exist that preclude summary judgment. She fbrther maintains that Dr. Pace s records and EBT testimony do not accurately reflect her complaints of pain and swelling. She avers that she testified at her EBT that she telephoned Dr. Pace in the days following her surgery to complain of pain and swelling. Portions of Ms.Kasatova s EBT transcript a annexed to the opposition papers, although the copy h is truncated, excerpted, and is neither signed nor certified;the context of Ms.Kasatova s testimony cannot be readily discerned f o the portions annexed to her papers. rm Plaintiff submits an opposing affidavit h m her expert (name redacted), a board certifiedpodiatric surgeon licensed in New York. The expert states that hdshe has reviewed the pleadings, the parties and non-parties EBT transcripts, plaintiff B podiatric records and diagnostic tests, and defendants summary judgment motion papers. Plaintiff 9 expert contends that Dr.Paw attached no significance to plaintiffs complaints of pain and swelling on April 16,2007 or her complaint of continued swelling on April 30,2007. The expert further sets forth that the x-ray taken on October 11,2007, confirmed swelling and the presence of excess bone. The expert states that [a]s a result of inadequate bone removal she had redeveloped a callus in tho same interspace on which Dr. Pace had previously operated. The expert sets forth that during the original surgery,Dr. Pace should have removed the bone that Dr. Kavanagh later excised on Janll~vy24, 2009. The expert that defendants deviated f o good and accepted practice in failing to remove an adequate rm amount of bone during the arthroplasty, which caused plaintiffs unnecessary pain, suffering, and r further surgery. The expert further opines that D .Pace failed to provide plaintiff with informed consent because he failed to inform her that the arthroplasty may not be performed in a complete -9- [* 11] manner, that she may require additional surgery to complete the procedure, and that she may be in worse condition after the arthroplasty. Finally, plaintiffs expert opines that Dr. Pace s failure to appreciate and heed plaintiffs post-operative complaints enabled her debilitating condition to fester and prevent[cd] her from making a complete recovery when the appropriatecorrective surgery was finally performed by Oalli [P.C. The expert states that plaintiff required corrective surgery,not I* physical therapy, and that [b]y the time she presented to Galli Cp.C.1, the damage to her gait had occurred, the urgency had past [sic] and no amount of surgery could fully correct the damage to her gait. In reply, defendants argue that plaintiffs expert s opinion is not supported by any evidence. They contend that plaintiffs expert is vague on hidher opinion that Dr. Pace removed an inadequate amount of bone, and that the expert never Bpecifics how much bone should have been r removed as opposed to how much bone Dr. Pace actually removed. In a supplemental affidavit, D . Wolf sets forth that it is well known in the practica of podiatric surgery that removing too much bone during an arthroplasty will result in a significantly poor result which could lead to flail toe or other unacceptable outcomes. Dr. Wolf states that the amount of bone removed is a subjective decision made by the surgeon, but that in his opinion, Dr. Pace removed the appropriate amount of bone to resolve plaintiffs condition. Dr. Wolf again sets forth his opinion that plaintiff experienced a regrowth of bone following the arthroplasty, which he states occurred due to the known but unpredictable ability of human tissue to regenerate following surgery. Further, he states that there is no evidence to support plaintiffs expert s statements that plaintiff has suffered any damage to her gait, was in a worse condition after the arthroplasty than before, or complete recovery following Dr. Kavanagh s surgery. -10- has been unable to make a [* 12] Defendants have met their a burden for summary judgment by submitting a detailed expert affidavit, supported by plaintiffs medical records, in which their expert opines that Dr. Pace s care did not depart f o the standard of care, that plaintiff experienced a recurrence of rm the bone growth after the arthroplasty, and that defendants care did not proximately CBUSC the racurrencc. Plaintiffs opposition papers do not sufficiently demonstrate that a material issue of fact exists to preclude summary judgment. While plaintiffs expert states that hdshc reviewed plaintiffs diagnostic studies, hdshe fails to address Dr. Wolfs opinion that the April 16,2007 film does not show the regrowth of bone present on the October 11,2007 film. If, as plaintiffs expert opines, the bone that D .Kavanagb removed in January 2009 should have been removed in the original surgery, r the excess bone should be visible on the April 16,2007 x-ray. Plaintiff did not raise an issue of fact sufficient to rebut defendant s showing on this pivotal issue. Further, there is nothing in the record to support plaintiffs expert s contention that plaintiff never made a full recovery or that her gait has b n adversely affected. Accordingly, the malpractice claim must be dismissed. w As to the informed consent cause of action, defendants have met their burden of showing their prima entitlement to summary judgment because there is undisputed evidence that after having been explained the reasonably foreseeable risks, alternatives, and possible complications, plaintiff signed a detailed informed consent form prior to undergoing the arthroplasty. v, p u, 543,544 (I st Dep t 2009),aft8,15 N.Y.3d 907 (2010). Plaintiff failed 66A.D.3d to rebut this showing. The risk she contends waa not disclosed-the possibility that a future surgery would be required-is clearly disclosed on the conscnt form. Even if the court accepted the excerpted transcripts of her EBT testimony rn admissible, her denial that she was informed of the -1 I - [* 13] risk is insufficient to demonstrate that a reasonable ptrson would have opted against the procedure. Omhan.66 A.D.2d at 544; Public Health Law 8 2805d. Accordingly, the lack ofinformed consent claim is dismissed. Finally, plaintiff doca not dispute that she has failed to state a causo of action against the PLLC,a corporate entity which rendered no treatment to plaintiff. Although during the pleading stage of this matter there may have been a question of the corporate entity's vicarious liability for the acts of its employees or Dr. Pace, given the disposition of this motion, there does not appear to be any indepondant claims remaining against the PLLC and plaintiff has not identified such in opposition to the motion. Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted and the complaint is dismissed in its entirety; and it is further ORDERED that the Clerk is directed to enter judgment accordingly. ENTER: Nov 012011 ' NEWYORK COUNTY CLERK'S OFFICE -12-
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