Schofield v Edward B. Borden, M.D., P.C.

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Schofield v Edward B. Borden, M.D., P.C. 2012 NY Slip Op 32365(U) September 6, 2012 Supreme Court, Suffolk County Docket Number: 08-16956 Judge: Daniel Martin Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 08- 16956 CAL No. 11-01886MM SUPREME COURT - STATE OF NEW 7'ORK I.A.S. PART 9 - SUFFOLK COUNT'Y PRESENT: Hon. DANIEL MARTIN Justice of the Supreme Court RECHANDLE SCHOFIELD and JOHN SCHOFIELD, Plaintiffs, - against - EDWARD B. BORDEN, M.D., P.C., EDWARD B. BORDEN, M.D.. and NORTH SUFFOLK SURGICAL ASSOCIATES, P.C., MOTION DATE 1-3-12 ADJ. DATE 4-10-12 Mot. Seq. j# 003 - MD PAUL AJLOUNY & ASSOCIATES Attorney fix-Plaintiffs 320 Old Country Road, Ste 205 Garden Ci.:y, New Yorlc 1 1530 KELLER, O'REILLY & WATSON, P.C. Attorney fix Defendants 242 Crossways Park West Woodbury, New York 11797 Defendants. LJpon the following papers numbered 1 to 32 read on this motion for partial summary judgment ; Notice of h/lotion/ 01-derto Show Cause and supporting papers 1 - 20 ; Notice of Cross Motion and sui2porting papers -; Answering Affidavits mpetirr and supporting papers 21 - 26 ; Replying Affidavits and supporting papers 27 - 32 ; Other -; ( F p it is, ) ORDERED that this motion by defendants, Edward B. Borden, M.D. and North Suffolk Suirgical Associates, P.C. slWa Edward B. Borden, M.D., P.C. and North Suffolk Surgical Associates, P.C., For an ordcr pursuant to CPLR 3212 (e) granting partial summary judgment in their favor is denied. This is an action to recover damages, personally and derivatively, for injuries allegedly sustained by plaintiff Rechandle Schofield while undergoing a bilateral total mastectoiny on November 10, 2005 at Matlier-St. Charles Hospital located at 200 Belle Terre Road, Port JeffcLrson, New York. Defendant Edward B. Borden, M.D. (Dr. Borden) performed the procedure. Plaintiff had been referred to Dr. Borden by her primary care physician based on plaintiffs desire to undergo a prophylactic bilateral total mastectomy given her strong family history of cancer, particularly breast cancer, and extreme discomfort that was affecting her quality of life. It was originally planned that Dr. Borden would perform the bilateral total mastectomy to be immediately followed by a reconstruction of plaintiffs breasts by a non- [* 2] Schofield L Borden Index No. 08- 16956 Page No. 2 party plastic surgeon. Prior to the planned surgery, the non-party surgeon marked plaintiffs breasts to indicate the incision areas, but when plaintiffs urinalysis results retunied indicating a urinary tract infection, the non-party surgeon declined to perform the reconstruction with concerns of the risk of infection M ith the placement of the breast implants. Dr. Borden went ahead with the bilateral total mastectomy, first performing surgery on the left breast and then on the right breast. Following the surgery, plaintiff began complaining of an inability to lift her left ami. She was later diagnosed with adhesive capsulitis of the left shoulder or frozen left shoulder. Plaintiffs commenced this action against Dr. Borden and his practice, North Suffolk Surgical1 Associates, P.C., alleging that defendants were negligent in, among other things, failing to properly diagnose and/or treat plaintiff in accordance with good and accepted standards of medical care, failing to properly note plaintiffs medical history, performing unnecessary procedures upon plaintiff, employing contraindicated treatment techniques, failing to conform to the agreed course of treatment including, the removal of plaintiffs nipples and areolae, and failing to keep accurate records of the course of plaintiffs illness and the treatment administered to her. By their bill of particulars, plaintiffs allege that plaintiff sustained the following injuries, disfigurement of the breasts and a frozen left shoulder. The complaint alleges a cause of action for medical malpractice based on negligence and a cause of action for loss of services. The Coui-t s computerized records indicate that the note of issue in this action was filed 017 September 16, 201 1. Defendants now move for partial summary j udgment in their favor dismissing plaintiffs claims that she sustained a frozen left shoulder as a result of the bilateral mastectomy procedure performed by Dr. Borden. Defendants assert that any act or omission in their care and treatment of plaintiff did not proximately cause the frozen left shoulder condition alleged by plaintif s. In support of their motion, defendants submit, among other things, the summons and complaint, their answer, plaintiffs bill of particulars, plaintiffs hospital and other medical records, and the affimiation of defendants expert, Dominic Filardi, M.D. It is well settlcd that the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Zircker~itarzv City of New York, 49 NY2d 557,427 NYS2d 595 [ 19801). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (sce Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 1 , 487 NYS2d 3 16 [ 19851). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgnient to produce evidentiary proof in admissible form sufficient to (establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d at 324, 508 NYS2d 923, citing to Zirckernian v City of New York,49 NY2d at 562, 427 NYS2d 595). I .\dhesive capsulitis is defined as a condition in which there is a limitation of motion in a joint due to inflammatory thickening of the capsule. It is synonymous with the term frozen shoulder (Stedman s Medical ed Dictional-y 282 [27 20001). [* 3] Schofield v Borden Index No. 08- 16956 Page No. 3 The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of medical practice, and evidence that such deviation or departure was a proximate cause of injury or damage (see Castro v New York City Health & Hosps. Corp., 74 AD3d 1005. 903 NYS2d 152 [2d Dept 201 01; Dentsclz v Cltaglassiati, 71 AD3d 718, 896 NYS2d 43 1 [2d Dept 20101; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 871 hYS2d 617 [2d Dept 20081; see illso Lau v Wan, 93 AD3d 763, 940 NYS2d 662 [2d Dept 2012l). On a motion for summary judgrnent dismissing the complaint in a medical malpractice action, a defendant inust make a prima facie showing that there was no departure from good and accepted medical practice, or that any departure was not the f proximate cause of the alleged injuries (see Salvia v St. Catherine o Sienna Med. Ctr., 84 AD3d 1053, 923 NYS2d 856 [2d Dept 201 11; Alzmed v New York City Health & Hosps. Corp., 84 AD3d 709, 922 NYS2d 202 [2d Dept 201 I]; Stukas v Streiter, 83 AD3d 18, 91 8 NYS2d 176 [2d Dept 201 11). Where a defendant physician makes a prima facie showing that there was no departure from good and accepted medical practice, as well as an independent showing that any departure that may have occurred was not a proximate cause of plaintiffs injuries, the burden then shifts to plaintiff to rebut the physician s showing by raising a triable issue of fact as to both the departure element and the causation element (see Stukas v Streiter, 83 AD3d 18, 91 8 NYS2d 176; Swezey v Montague Rehab & Pain Mgt., 59 AD3d 43 1, 8 72 NYS2d 199 [2d Dept 20091; Myers v Ferrara, 56 AD3d 78, 864 NYS2d 517 [2d Dept 2008l). General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat a defendant s motion for summary judgment (see Salvia v St. Catherine of Sienna Med. Ctr., 84 AD3d 1053, 923 NYS2d 856; AIzmed v New York City Health & Hosps. Corp.,84 AD3d 709, 922 NYS2d 202). By his affirmation, Dr. Filardi states that he is a board certified surgeon licensed to practice medicine in New York since 1985 and is fully familiar with the care of surgical patients, especially breast surgery patients. He indicates that he reviewed plaintiffs medical and hospital records as well as color photographs of plaintiff. Dr. Filardi notes that prior to seeing Dr Borden in 2005, plaintiff had been a twenty year smoker with longstanding complaints and conditiors including lupus, diagnosed conversion disorder, left arm trauma, migraines, absent seizures, and fibrocystic breast disease with related severe and worsening mastodynia2 He adds that plaintiff had a family history that included breast cancer and was referred to Dr. Borden based on her desire to undergo a prophylactic bilateral mastectomy. Dr. Filardi opines that during plaintiffs first visit on October 18, 2005, Dr. Borden appropriately reviewed the records and films, which included recent radiological studies plaintiff brought with her, and that no additional radiological studies were indicated or warranted prior to the procedure on Noveniber 10, 2005. Ln addition, he states that Dr. Borden properly obtained a full history from plaintiff by having her complete a patient questionnaire and speaking with her, performed a complete nornial breast examination and properly noted his findings, which included findings of mild to moderate noduiarity and marked tenderness of both breasts. According to Dr. Filardi, Dr. Borden considered appropriate indications for the prophylactic bilateral total mastectomy and the diagnosis and azreed upon treatment was appropriate and within the standard of care inasmuch as the operation would likely reduce or eliminate plaintiffs breast pain and reduce plaintiffs risk of eventually developing br cas t c anc e r . Mastodynia is defined as pain in the breast (Stedman s Mcdical Dictionaiy 1070 [27 ed 20001) [* 4] Scliofield L Borden Index No. 08-16956 Page No. 3 Dr. Filardi opines within a reasonable degree of medical certainty that Dr. Borden discussed all risks, benefits and alternatives involved with the procedure and thoroughly and accurately documented the discussions as required by the applicable standard of care. He also spines that Dr. Borden appropriately advised plaintiff of the risks involved with the procedure, including the chance of desensitization and capsulitis. Dr. Filardi adds that Dr. Borden proper1.y-discussed available cosmetic procedures to follow the mastectomy and appropriately referred plaintiff to plastic surgeons and back: to her priniary care physician for required pre-operative medical clearance, which plaintiff obtained. Dr. Filardi explains that the plastic surgeon pre-marked plaintifj s breasts to direct Dr. Borden as to where to make his incisions during the skin-sparing mastectomy so t w t the plastic surgeon could best complete her reconstructive portion of the operation. According to Dr. Filardi, it was appropriate and within the standard of care for Dr. Borden to defer to the plastic surgeon in this respect. He opines that it was not a departure from good and accepted medical practice for Dr. Borden to proceed with the bilateral mastectomy despite the cancellation of the reconstruction portion of the surgery, noting that Dr. Borden offered to cancel and reschedule but that plaintiff declined. Dr. Filardi opines that Dr. Borden appropriately made incisions pursuant to the plastic surgeon s pre-surgical markings and that the operative field was distant from the plaintiffs axilla, did not include the area of the axilla fascia, and that his procedure left plaintiffs axillary and lymph nodes intact. He states that no lymph tissue or nodes were removed, as evidenced by the intra-operative pathology report. Dr. Filardi avers that Dr. Borden performed the procedure in accordance with good and accepted medical practice and appropriately closed plaintiffs intra-operative wounds and successfully completed the prophylactic bilateral mastectomy procedure. Dr. Filardi continues that when Dr. Borden saw plaintiff during her follow up visit, he appropriately spoke with plaintiff concerning her normal post-breast operation pain complaints, which included numbness, pain and soreness in her chest and arm areas, he examined her wounds, he appropriately measured the extent that plaintiff could move her arms, and he removed her drains. According to Dr. Filardi, Dr. Borden continued during the post-operatit e course to appropriately advise plaintiff on wound and bandage care, drain care, and exercise. He believes that based on plaintiffs continued complaints of pain and restricted shoulder movement in both arms, Dr. Borden appropriaitely gave her a referral for physical therapy and continued to advise her to fclllow up with him. Dr. Filardi notes that frozen shoulder/adhesive capsulitis is a rare though known and accepted complication which can develop and occur for unknown reasons, and it can develop from mere limb disuse, often after trauma. He opines within a reasonable degree of medical cei-tainty that most likely plaintiff experienced normal post-operative breast and chest pain and restrictions which led her to avoid doing the required post-operative exercises and therapies necessary to resume full functionality and daily life. According to Dr. Filardi, due to plaintiffs autoimmune inflammatlsry disorder (lupus) and the disuse of her left linib resulting from her avoidance of painful stretches and exercise, frozen slioulder/adhesive capsulitis naturally developed. He maintains that plaintiffs ongoing failure to 1 Axilla 15 defined as the space below the shouldei joint containing the axillaiy aiteiy and vein, the infraclavicular pait of the brachial plexus, axillary lyniph nodes and vessels, and areolar tissue (Stedinan s Medical Dictionary 175 [27 ed 20001) [* 5] Schofield v Borden Index No. 08-1 6956 Page No. 5 actively seek and steadily pursue treatment for the condition has caused it to worsen and continue to affect her functionality and daily life. He also notes that after eventually undergoing a procedure to receive breast implants plaintiff admittedly did not seek any medical treatment or advice concerning her breasts. In response to plaintiffs allegations, Dr. Filardi notes that plaintiff underwent EMG and nerve conduction studies which were normal and opines that the results confirm that no intra-operative injury was caused to plaintiffs brachial plexus or interocostobrachial nerves during Dr. Borden s surgery. He further opines that the brachial plexus nerves could not have been injured intra-operatively as Dr. Borden did not go through the axilla artery or vein during the procedure and no sentinel node biopsy was perfomied. Dr. Filardi informs that it is naturally possible for the brachial plexus nerves to be disturbed during a breast procedure, which would result in a feeling of numbness that would decrease with time, and that feeling would ultimately return. According to Dr. Filardi, if this occurred with plaintiff ,the resulting numbness could have contributed to her avoiding use of her left arm thereby contributing to her eventual development of frozen shoulder/adhesive capsulitis. He emphasizes that such an occurrence would not result from anything that Dr. Borden did or did not do as it is a known risk and complication of any breast procedure. He adds that the records indicate that plaintiff did not pursue physical therapy or home exercises as she had been instructed to do, despite having been told that the lack of use can make a restricted shoulder and adhesive capsulitis worse. According to Dr. Filardi, when frozen shoulder/adhesive capsulitis is identified, if exercise is advised and there is no improvement, physical therapy is generally recommended and, to be effective, physical therapy must be aggressively pursued at least three times a week, usually for at least six months, to gain any benefit or experience any improvement. In conclusion, Dr. Filardi opines within a reasonable de:gree of medical certainty that plaintiffs non-compliance with suggested and prescribed courses of medical treatment resulted in the development, continuance and presence of her current left frozen shoulder condition which was not caused by anything Dr. Borden did or did not do during his care and treatment of plaintiff. Here, defendants demonstrated their prima facie entitlement to udgment as a matter of law by submitting evidence establishing that there was no departure from good and accepted practice by defendants and that, in any event, any departure was not a proximate cmse of the alleged injuries (see Bezeriizaiz v Bailine, 95 AD3d 1153, 945 NYS2d 166 [2d Dept 20121) Defendants expert opined that the iiijury of frozen shoulder/adhesive capsulitis is a known, albeit rare, consequence and complicaition of plaintiffs surgery as well as plaintiffs failure to undergo the physical therapy that had been prescribed or perform the advised home exercises (see Swaizsoiz v Raju, 95 AD3d 1 105, 945 NYS:!d 101 [2d Dept 20121). ~ In opposition to the motion, plaintiffs contend that Dr. Borden failed to inform plaintiff of the risk of a frozen shoulder prior to surgery, and that the stitches on her left side and her inability to lift her left aim are indicative that Dr. Borden cut deeper or further than was discussed with plaintiff or required i n a prophylactic bilateral mastectomy, cutting into plaintiffs axilla, thereby causing plaintiffs left shoulder problems. Plaintiffs submit their own affidavits, Dr. Borden :; report of operation, and a redacted expert affirmation. [* 6] Schofield \ Borden index No. 08-16956 Page No. 6 I n reply, defendants argue that plaintiff cannot advance a separal e theory of liability based on lack of infornied consent for the first time in opposition to a motion for sunimaiy judgment, and that defendants are entitled to partial summary judgment inasmuch as plaintiffs failed to raise a triable issue of fact regarding proximate causation. Plaintiff states in her affidavit that after the bilateral total mastectomy was performed she had an incision under her right arm that had eight stitches in it and an incision imder her left arm that had eleven stitches in it. According to plaintiff, Dr. Borden initially told her that the incisions under her right ann were the result of his having dropped the scalpel and that he later told h x that the incisions resulted because he forgot what kind of operation he was performing and believing that she was a cancer patient he had performed an unnecessary lymphadenectomy. She avers that DI-.Borden never told her that frozen shoulder or adhesive capsulitis was a known complication of the surgery and asserts that had she known, she would not have undergone the elective procedure inasmuch as she did not have breast cancer. Plaintiffs husband, plaintiff John Schofield, attests to witnessing the new incisions with stitches under plaintiffs right arm and left ann following the bilateral total masiectomy procedure. Plaintiffs note Dr. Borden s deposition testimony that during dissection with the electric surgery tool of the subcutaneous tissue on plaintiffs right side, he created a small defect, a nick, between half an inch and an inch and a half in the axillary skin, which is folded. He denied that it occurred in more than one surgical field, such as the left side, and denied that he made specific incisions to remove lymph tissue. Plaintiffs contend that Dr. Borden made the same error on plaintiffs left side, that he cut plaintiffs axilla, but failed to disclose it in his operative report or during his deposition. The redacted expert affirmation submitted by plaintiffs indicates that plaintiffs expert is a board certified surgeon who has been licensed to practice medicine in New York for over 20 years. The expert states that he has reviewed the operative report, deposition transcripts and other medical records of plaintiff and that his opinion is within a reasonable degree of medical certainty. The expert opines that making unnecessary incisions in a surgical patient is a departure from tl- e accepted standard of medical care. The expert then states that [ill would be important to note in an operative report that the Patient had a recently stitched incision in the area of the operative field. This is pertinent information and I would expect it to have been included in the operative report if the incision in the left arm was present and had stitches prior to the surgery. The expert concludes by opining that failing to inform a patient of the known risks and complications of a surgical procedure to be perfomled on a patient is a departure from the accepted standard of medical care. Plaintiffs submissions raise triable issues of fact as to whether Dr. Borden made unnecessary incisions on plaintiffs left side during the mastectomy such that he departed from accepted standards of medical practice (see Hayderi v Gordorz, 91 AD3d 819, 937 NYS2d 299 [2d Dept 20121; Barrzett v Fasliakiri, 85 AD3d 832, 925 NYS2d 168 [2d Dept 201 11; Guzzi v Gewirtz, 82 AD3d 838, 918 NYS2d 5 5 2 [2d Dept 201 11) and whether such departures were a proximate cau:;e of plaintiffs injuries (see 4 Lyniphadenectoniy is defined as the excision of the lymph nodes (Stedman s Medical Dictionary 1038 [27 ed 20001) [* 7] Schofield \ Borden Index No. OS- 16956 PageNo. 7 Adjetey v New York City Health mid Hospitals Corp., 63 AD3d 865, 881 NYS2d 472 [2d Dept 20091; Boirtiri v Bay Shore Family Health Ctr., 59 AD3d 368, 872 NYS2d 523 [2d Dept 20091). Summary ludgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical cvpert opinions. Such credibility issues can only be resolved by a jury (Feinberg v Feit, 23 AD3d 5 17, 5 19. 806 NYS2d 661 [2d Dept 20051 [internal citations omitted]; see Hayden v Gordon, 91 AD3d 819, S2 1, 937 NYS2d 299; Graliaiti v Mitchell, 37 AD3d 408, 409, 829 NYS2d 628 [2d Dept 20071). Therefore, defendants are not entitled to partial summary judgment in their favor dismissing plaintiffs claims that she sustained a frozen left shoulder as a result of the bilateral mastectomy procedure performed by Dr. Borden (see Berger v Hale, 81 AD3d 766, 916 NYS2d 831 [2d Dept 201 11; Coleman v Piitriain Hosp. Ctr., 74 AD3d 1009, 903 NYS2d 502 [2d Dept 20101, lv to appeal clisnzissed 16 NY3d 884,923 NYS2d 41 1 [2011]) . Accordingly, the motion is denied. 8 t / -- Dated: - J.S.C, FINAL DISPOSITION * ~