Mahony v Zwanger & Persiri Radiology Group LLP

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Mahony v Zwanger & Persiri Radiology Group LLP 2012 NY Slip Op 33121(U) December 28, 2012 Supreme Court, Suffolk County Docket Number: 10-25709 Judge: Daniel Martin 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] INDEX No. CAL No. SIIOR'] I-(lRM 01'/)1;1' . ¢ 10-25709 11-0] 135MM SUPREME COURT - STATE OF NEW YORK IAS. PART 9 - SUFFOLK COUNTY PRESENT: Hon. DANIEL M. MARTIN JustIce ortlle Supreme Court MOTION DATE 10-28-11 ADJ. DATE 3-13-12 Mot.Seq. #OOI-MD ---------------------------------------------------------------)( DANIEL M. M.AJ-IONY, as Administrator of the goods, chattels, and credits of DANIEL J. MAHONY, deceased, and DANIEL M. MAHONY, Individually, Plaintiffs, EDMOND C. CHAKMAKIAN, ESQ. Atiomey for Plaintiffs 200 Motor Parkway, Suite A3 Hauppauge, New York ] 1788 FUREY, KERLEY, WALSH, MATERA and CINQUEMANI, P.c. Attorney for Defendant 2 I 74 Jackson Avenue Seaford, New York I 1783 - against ZWANGER & PESIRJ RADIOLOGY GROUP, LLP, Defendant. ---------------------------------------------------------------)( UPUll the following p~lper~ numbered I to ---1.L read un lhi~ Illotion fur sumU1,uy judgment; Notice: of Motion! Onlcr to Sltuw CJUsC' ~l1Jdsllpporlillg p,lp0rs (OOl) l- lG ; Notice Cross Motion Jnd supporting papers _, AnswC'ring AtTidavi\s i.lilclSLlppUrlillg papcrs 17 -2'}, ; Replying i\ ffidavi(~ and supporting papers 24-28 ; Other _, (::liId ,Li"te I IIt n, ill", e0UIi$tI ililupPol1 ¢ ¢lid 0PP0$CcI to the liiOticlIl) it is, or ORDERED that 1110tion (00]) by the defendants, Zwanger & Peslri Radiology Group, LLP, pursuant to CPLR 32 I2 for summary judgment dismissing the complaint is denied. In this action, claims for ordinary negligence and for medical malpractice have been interposed arising oul of a fall suffered by the plaintiffs decedent, Daniel J. Mahony, 011July 15, 2009, at the premises of the defendant, Zwunger & Pesiri Radiology Group, LLP (Zwangcr & Pesiri). located at 1729 N0l1h Ocean Avenue, Medford, New York. The plaintiffs decedent, who used a walker to assist with ambulating, was at defendant's premises to have an MRI perf0TI11ed. It is alleged that the decedent's walker was pulled Into the magnetic field generated by the MRI machine, causing him to fall and sufTer serious physlcallllJury, lilcluding a cerebral vascular bleed. As a result of the injuries alleged to have been sustaincd by the decedeilt. he \-vasconfined thereaftcr to Brookhavcn Hospital, Stony Brook Ilospital, St. Charlcs Hospital, and the Nonhpon Veteran's Hospital from July 15,2009 until hiS death 011Septcmbcr 15,2009. On May 26,20] 0, letters of admInIstration wen: granted to Damel M. Mahoney by the Sun·ogate's Courl, Suffolk County, and the InsLantaction \-vasthereafter commenced agal11st Zwanger & PeslrJ [* 2] Ivlall(lllY v ZwanglT Indcx Nu. 10-25700 ZW<lngcr & Pesin now seeks s1I1Tlmal)'JudgJl1cl1t dlSrl1lSsmg the complaint on tile hases that il dHJ IlUt pro.\llll~llcly CilUSCtile decedcnt to suffer a stroke; the decedent had Illultiple risk Ltctors fix a Sll·okc; IhL~ type oi'strokc: suilcred by the decedent was due to a blond clot and nul due to .ltrauma; ,l1lilollgh Illslrucfed It) w:lil :lllhc lk~ur orthe f'v1RI1"00m,the decedent walked inlo the room with IllS walkL:r \\'hl<.. '11 [hell caused the walker to he dra\vn to the magndic I-jcld clLIsing him to Llll; and it had 110duly [0 W;Jrll [ilL'decedent Urdll up ell dnd obvilllls ClHldltltHl whlch 15 Ill)t Inherently dangerous_ The pruponcn t II f ,1 sunullary J uJg1l1ent 1l10tl()n must make a prllml LlC!e shO\v ing II r Clllillclllcnl to j udgmcill as a malleI' ()f ];IW, tcnderi ng sufliclent evidence to cl] 111 inate any 1ll,ltenal Issues lJ I' LICl Ij-om Ihe C~LSC_ granl summary Judgment it must clearly appear that no material and lnabh: ISSUCof To l~lctlS presented (Friends ojAnill/als v Associated 1"111' Mfrs., 4() NY2d I(J()5, 4 I() NYS2d 790 [1979J; Sillma/l l' Twelltieth Cel1t1l1:r-Fox: ilm Corporutio/l, 3 NY2d 395, 165 NYS2d 498 [I 957J)_ The F Illovallt has the lnitia1 burden 0 r pl·OVltlg entitlement to summary judgment (Willegrad v N. Y.U. Medical Cell1er, ()4 NY2d 851, 487 NYS2d 31 () [1985J). FUllure to make such a showll1g requIres dcnial oi"tilc motion. regardless of the sufficiency or the opposing papers (Winegrad v N. Y. U. Medical C"lIfer, S/lj)j"(/). Oncl.': such proof has heen offcnxl, the burden then sl,irts to the opposing party, \vho, in order to defeat the moti on fix SUJ1l111 J udgmcnl, lllust proJTer evi lienee 111 ary adml ss 1h Ie form. _~HldIn usl "show 1~lctssufficient to require a trial of any issue of bct" (CPLR 3212[bJ; Zuckerma11 I' Ci(v Of New York, 40 NY2d 557, 427 NYS2d 505 [1 nO]). Thc opposing party must assemble, lay barc and rcwal his prool'in order to estahlish tJ,at the matters set forth 111 pleadings are real and capable of being his est8b1lshed (CaSTro l' Liberty Bus Co., 79 AD2d 1014,435 NYS2d 340 [2ei Dept 1981 J). The requisite elemcnts of'p]"l)ofin a l11cdicalmalpractice action are (I) a dcvlatlon or depanme from accepted practice, and (2) evidence that such departurc was a proximate cause Oflll.lUry or damage (/-Ioltoll I'Spruill Broo/. ilIallor Nursing Home, 253 AD2d 852, 678 NYS2d 503 Pd DC:pl 1998J, i1jJjJ tlelllcd IJ2 NY2d 818, CiS5 NYS2d 420). To prove a prima facie case 01' Illcdicalmalpractice, a plaintdT Illusl cst:lblish that defendant's negligence was a substantial f~lctor in produclllg the al1eged inJury (sec, Dat/iarian I' Felix Contracting Corp., 51 NY2d 308, 434 NYS2d 106 [J 980L Prete I' RaflaDemetrious, 221 AD2d 674, 638 NYS2d 700 [2d Depl 1996J). Except as to maHers withlll the ordinary expet"lencc and knowledge of laymen, expert medical 0Pl1llOll is necessary to prove a deviation or departure from accepted st,llldards 0 f m cd Ica I care and Ihat such departure \v,lS a proxi m,lle cause 01'1he plaimilrs IIlJlIi'y (sec. Fiore l' (falallg, M NY2d l)()9. 481) NYS2cl47 [1985J, Lyons I' McCauley, 252 i\D2d 51o, 51 7, ()75 NYS2d 375 [2d Dcpl ]998J, U!Jp dellicd 92 NY2d 814, 681 NYS2d 47.5, Bloom l' City (~lNell' York, 202 /\D2d4(j5, 4()5, ()ot) NYS2d 45 ["2d Dept 1994J). In support urtile Instant dpplicltioll, the deJCndant 11assubmiltelL lllter alia, all attorney's a fli nnat] 011,COI)1s n r [he Slimill nns and COI11P nt, defendant's answer and various discovery dCllland s, e lal alld pl(jinllfl~s veri lied blll oC p<lrllcul,lrs; thc transcript 0 f the exam illation before trial of Daniel M. l\ilahollY daled January 20, 2011. \Vllh proo1" 01' servIce upon counsel pursuanl to CPLR 3116; the transcripts orthe cxarnmations bcCore tri:d ol'Shara CH11l1ZZ0datcd Apnl 4, 20J 1, and Clrlos Rlver~l ddlcd ,Apni 4, 201 1; a copy of',1llll1cidellt report; uncertllled copIes oClhe Brookhaven Hospital record <llld South Shore Neurology; and the afTirmatlons of Richard N. Si ivergIeld, M.D and J Inward ReIser, MD [* 3] ['vbhony v Zwanger Index No. 1()-1570l) Page -'1 Dr Silvcrglcld and Dr. RelsE'r have affirmed that thcy reviewed the deCi.xknt's lllcdlcal records Crulll BIW)khavell IVlelllorwl Hospllal Medical CCllter. Stony Brook Umversity Mechcal Center. ~l1ldSt Chilrks Hospital. howcver, the records !I-OlllStony Bruok UniversiTY Medical Ccntcr, :md St. Chades Il()spit~li have 110tbeen SUhl1l111Cd itli the moving papers. Dr. Reiser addltlOllally arlifillcd that he w revlL-'wcd the lkcedellt's l11edieal records I)'om the Long Island Swtc Veterans HUllle, ,IS \vcll <ISthe f)cparlillclli urVdcr;lIl's Amut's MCllJcaI Center In Northport, wilich records have no! been SllhllllltL-~d either The uIlccrtilled copies of the decedent's medical records al'e Ilotlll admissible Illrll1 as required pursu:tl1L IU CPLR 311'2 (Friends (~/AllilJlals jJ /hsociated Fur Mji-s ,supra). Expert testirnol\Y is lil111teJ to facts III eVidence (.I'CC, also. /lIIelll' UII, 82 ADJd 1025,019 NYS2d 17l) j)d Dcpt 2()111~ i'J.lar7.lIil/o I' /SOIll, 277 AD2d J(l2, 716 NYS2d 98 [2d Dept 20001 Strillgile I' ROThmal/, 142 AU2d (lJ7, 5':10 NYS2d ?;J8 [2d Dept 1988], O'Shea v Sarro, 1O(i AD2d 435, 482 NYS2d 529 [2d Dept I\!S4]; /lOri/brook I' Peak Resorts, lnc, 194 Mlsc2d 27J, 754 NYS2d lJ21.Sup Ct, 'folllkms County2()(j2]). It IS determined that evell irthe medical records submItted were 111 admisslbk l(xl1l, and ,!lIthe supporting mctlical records had been provided, That the defendant has not demonstrated pnma 1;II:ic cntltklllcilt to summary judgment as there are J;lctual issues which preclude the same. Richard N Sllvergleid, M.D., defendant's cxpert, afTinns that he is licensed to practice mcdlcme \ll New York and 15 board certified in diagnostic radiology with a certificate in ncurorndlology, In conllection with thc preparation of his affirmation, he stated that he conducted a thorough radlOloglcal reVl\~Woft11c file and rJdio1ogical studies. He reviewed the CT similes of the head taken .July 17, 200!), July IS, 20()l), ,md July 22, 2()09~ a C1' angIogram of the ncck and carotid artenes from July 21. 200t), ~l can)tid ultrasound ('i"omJuly 18, 200'); aCT of the spine fi'om July 22, 2009; and a chest x-ray oLluly 17, lOO\!, li'om Brookhaven Mcmonal Hospitall'vIedlcal Center He review'ed the studIes and accompanying reports I'or ,I CT anglOgram orthe he(]d and neck oLJuly 24, 2009; a CT oCthe head Ihml .July 28, lOOt), a CT angIOgram oCthe head l1'om July 29, 2009; vanous chest x-rays Irom July 24, 2009 . .July 29, 2009. July JO, 2009, September J, 2009, and September 7, 2009 Crom Stony Brook Unlv'Crslty Mcdlcal Center He reViewed the studies and accompanying reports (llr a chest x-ray Cram August 17, 20()(); a bilateral carotid ultrasound Jl'om August 25, 2009; and :.lIluItrasound oCthe hi lateral legs wIth dopplcr from August 25, 2009 liwll St. Charles Hospital Fl'Oll1his revlcw orthe studlCS, Dr. Silvergleld :.dTirms with (j reasonable degree oCmcdic,lI ccrt;llilty tl1;lt the slmke sullered by D:,lIliel J. Mahony was not caused by the lidl sustained ,It Zwanger Jlesiri R,\diology Group on July 15,2009, beC<luse hiS stroke \lv'asnot traumatic 111 naturc. He cnillinucs, tlut cOlltr,\ry tu tht:: pl:'lintilr's allegations, the dccedent dnl not suffer j)·om a cerebral vascular bleed, ;Illd then: IS 110eVIdence ora vascular bleed on allY oCthe I·adiology studies ITVIC\ved, including those rrolll Brookll,lvell t"vlcmoridl Hospital Center, where Mr. Mahony was dlagllosed alld treated for hIS stroKe. He further adds tl\at thcre was nl) eVIdence ortraunl,ltie Injury to the head, or allY ufthe vessels withlll the hC~ld,cont':lIl](.X!on any ufthe rad\Olog\cal stlldies revic\vccL which studies woulu have shmvll evidelll.:e oftr,IL!I11a iCsuch illJurir:s r:xish:d. There were no skull Ij'actures and no eVidence of any hemorrhage ill ,ltlV ol'the studies whIch could hc Indicltivc oCtraunw to the brain. Dr Sdvcrglcid cOlltinues th,1t al I3rookh,\ven Hospital, Mr Mahoney \vas di,lgnuscd wIth ,\ Ieftsided rWIl-hclllorrhaglc pontine stroke, 'Nhich \s a stroke in the pOllS, located anteriorly ill the br:tin stem I-Ie slates thal he agrees With this Ilndlllg, and lllcl1cates that tillS tyVe of stroke is usually CISsoclatcd \Vllh [* 4] M;tlwny v Zwangc'r Indc.\ No. 10-25709 Page 4 hypci"lcnsloJ], ;llld that isolatl.'cL 110n-hClllOlThaglc pontine strokes arc gencr811y Il()t traumatic Hl naturc. lie CotlllllllCS that strokes in gcncraL arc r;lrely caused by trauma, and that WIllie unCOllllllon, they call potcnti:dly OCCLlr, c:cause trauma can cause a clot to f(1l111 b either \vithlll or outside oCthe lmlin, dllli the clot ell I press ~lg;lI11stsurrounding tissue and vessels. This extrlllsie compression of vessels due lO hemorrhage or blood clot can diminish blood Ilow to the brain causing a stroke. Altern;ltively, trauma call Cdllse a subarachnoid bleeding, \vhich can be associated with spasm aCfecting blood vessels at the base ul'tlle hr ¢. lln. He contlilues t11<ltrauma can also cause a dIrect injury to a vessel with III the hrain t Whde all of these tn.lulllatic Injuries can cause stroke in patient, he did llot sec any of the ahove traumatic Jindings in the radiology studIes of Mr Mahony's braill, and there is no SUb"lr<.\chJll)ld hemorrhage or injury to the blood vessels supplying the br;lln, \vhich would have been seen 111 studies the reviewed. Dr. Silvergleid additionally states that he saw evidence ofsignifici:lnl atherosclerotic disease \vllh plaque 10rmatlOll. which IS a risk factor for strokes, and that he saw an old, nght, posterior cerebral inl~lrct He opmcs that the stroke suffered by Mr. Mahony was not caused by trauma from a fall, and there is no evidence in the radiologIcal studies which can support that Mr. Mahony suffered a severc, acute, traumaliC cerebral vascular bleed. Howard B. R81ser, M.D.,. defendant's expert, affirms that he lS licensed to practice medicine ill New' York State and is board celiified in neurology. In connection with his alTirmatlon, he reVIewed records fi'01l1South Shore Neurology Assoewtcs, Brookhaven Memorial Hospital Medical Center, Stony Brook University Mccl1cal Cenler, St Charles Hospilal, Long ]sland State Veterans Home, and the Dcpartment of Veteran's Affa1rs Medical Center in Northport. It is Dr. Reiser's opinion \vlth11l a reasonable degree of medical certainty that the slroke suffered by Daniel .I Mahony was not caused by (rauma to hIS head. Dr Reiser further opines that the stroke suffered by Mr. Mahony was likely an embolus caused by atrial fibrillation in a patient who \\'as off anticoagulants, which embolus lodged within the small vessels SUPplYlllg the pons, causing the right Sided symptoms_ He continues that the plaintiJ'f's ckcedcnt had many risk factors for stroke, including atrial flbrilJatioll, extensive <Ithcrosclerotic plaque, and hypertension. In preparation for EMG/nerve conciuction studies, it was recommended that the decec1ent stop his COllll1adin about 4-5 days pnor to lhc stu(iles, When the decedenl was ;lc1mlttec1to Brookhavell Memorial Hospital on July 17, :200l), his INR range \-vas at;1 subtherapeutic levcl lor a patient anticoagulated lor atnal fibrillation. Dr. Reiser opmes that thIS subthcrajk'utic anl1co~lgul,ltion level would hJve increased the decedcnt's chances of clot development, and III addJtioll to illS hYPcTtells10ll and atherosclerotic disease, would havc dral1latically increased the pl'Obabi lity of an Ischelll it stroke. Dr. Reiser contlllLles lhatthe CT scan taken on .July 17, 2()Ol) at Brookhaven I lospilal did not show allY evidence oCan illiracr"lllial bleed, nor did it silo\-v any Indication ol'al1 infarction 011the leI! side ol'the brain~ however,;lll old, right, postel"lor cerebrallnl':lrction 'vV;lS noted, wllll~h had llot prevented Mr. Mahony fi'om living a normal, ,Ictive life, The CT scan oCJuly 10, lOOt), Ckm0l1S1ratcd the presence Or~l 2:2 em acute inl:1ret Illvolving the left side oCtile pons. I Ie continues thm an ,1cute lnl~lrCl is death uCthe br,lln t1sslle due to sudden Insurficlcllt blood supply whIch gener;llly occurs hcclllse ora clot lodging int·he vessel. He indicates th;lt none orthe reports ol'thc r,ldlological studies cOllllucted ()ll tIle (lcccden t rc Ccrence an y cvi dCI1CC f trauilla, nor do they contui 11~11l tr<LUI11 IinelIngs 0 Y ¢.tic 1 Wh:ltsoevcr [* 5] i\bhony v ZW:IJ1);l.:r Indc.\ No. 10-25701) B:lscd upol1thc l"i.ll"c);oing.the moving papers n1lsc 1~lctu:llissues conccllling whether or 110tIhe decedent slIst:\Illcd a trauma 10 his head when he fell when his llldal walker became mobilized by the MRI machine. causing it to becomc attached to Ihe machine. While Carlos Rivera and Shara Canmzzo testilied that there was no trauma to the decedent's head, the plaintilThas testified thaI there was a trauma to the decedent"s head. as cvidL'llccd by the red mark all his father's forehead aner he fdl and struck his head. Thus. the issue cOllceming whether or not there was a trauma to the decedent's head prcdudes sllmnwry judgment. Additionally, the defendant's experts have opined that trauma can causL' a clo! to COllll.and an area of clot and ischemia was evidenced in lhe CT scans referenced. The plaitltiiThas opposed the instanll11otiol1 for summary judgment with an aHolllfy's anillll:ltion; aflidavits of the plaintiff, and his employee, Paul Bizzoco; an uncertifieJ copy of safely manual for Magnctolll Espress Systcm, the affidavit ofplallltiffs expert; and plaintiCfs memorandulll or bw. The safety l11:.Jnll:.Jl submitted by the plaimifris uncertilied and is not in admissible fonn. Moreover, it has not heen established that this is the lllanual ror the MRI machine Involved 1Il the within ll1eidcnt. It is det~nllincd that Dr. Ciullo has raised a factual issue which precludes summary Judgmcnt on the issue oCproximate causc. She has opined that when head trauma is sustained, it can cause a blood clot to fonn in or around the brain, causing pressure on sLllTounding tissues and vessels, causing a dir11lnutlon ol"blood now to the brain. She added that a stroke may also occur in patients '>"hen trauma causes subarachnoid bleeding, and when there is a direct trauma to a vessel within the brain. 11is noted thm delcmlant's expert. Dr. Silvergleid, also opincd that trauma can cause a direct injury to a vessel within tht: bn\in, ,)nd that traumatic injuries can cause a stroke ill patient, although hc did not see evidence of the same in the slUdies. Here, it has not been established in the moving papers whether or not the plalllti ITsufrered a head trauma \-vhich proximately caused a clot, or ,lrea or pressure on J blood vessel, to form ill the blood vessel in tile decedent's brain, which proximately caused him to suffer a stroke. Thus. slImm:Jryjudgment is precluded. Based upon the foregoi ng, that branch of defendant's applicatIon dismissi ng (ile: C<luse0 I' action ror medical malpractice is denied. Wh1Ch seeks sUlllmary judgment Turl1lng to tllG calise or(\ction r()r negligence, the dC!clld:lnt asserts that It had no duty to warn the decedent 01',\11opcn and obvious condition which was not mhcrelllly dangerous. However, the delCndant h,lS not est,lbltshed pri1l1~1 hcie entitlement to summary judgment dismissing the cause or actIon premised upon the alleged negligence. A I<ll1downer has a duty to mamtain ltS premises III a reasonably safe manner; howcveL a landowner has no duty to protect or wam agalllst an open and obvious comhtion, which, as a matter of law. is !lot inherently dangerous (Gagliardi l' Wal11lartStore, luc. 52 AD3d 777, 860 NYS2J 207l1d Dept 1008]; Salomon l' PrainilO, 53 AD3d 803, 86\ NYS2d 718 Pd Dcpt 20(81). An mhercntly dangerous article is one fi'auglll with danger !Ylllg mthe character and content of the ;:1l1icJe.albeit the disastrous consequences arc caused Imlllctl1ately by an external roree (Marlille: l' Kaufman-Kalil' Neal,y Co. Illc. 74 M isc2J 341. 343 NYS2d 383 [Sup. Ct. Trial Tellll. Uronx County 1073])_ [* 6] !Vlahony v Zwangcr lllde\; No_ I U-2570() Where ,I condition is open ami obvious and not tnherently dangerous. then: is 110duty to pr01l'ct or l() warn ~lg~llnstrhe open and obvious comlitioll (Hamburg \' 34 East 6 Street Corp., :~() 0 NY Slip I 0]1 32S40l.1 [Sup. Ct New York COUllty 2010J). Although the Issue of whether <lhazarc! IS open and OIWlOUSis generully CJC1 spcCllic :1I1c!hus a question lar ajury, a COLIrtmay deterll1111Cthat a risk was t UpU1 and obvIous as a matter or law whcn (he establIshed l~lCIscompel that conclusion, and Illay do so on the baSIS of clear and undisputed evidence (/Jall/lmrg \' 34 East 67''' Street COl'jJ., supra). Although, \Vhdher ,111 assertc.'d hazard is open und obvIOus cannot he divorced ll'om the surrounding circumstances, a condillon that is ordinarily apparent to a person making reasonable use orhls senses may be ITnden:d a trap Il)I"the ullwary where the condition is obscured ur the plaintlil's attention IS oth(Twlse distr~lclcd (!ltll/tbmX II 34 East 67'11Street Corp., supra). r In or-der to establish pnma Llcie enl1llemcl1tto judgment as a matter orlaw in a premIses liabilJty case, a defendant must demonstrate that It dId not create the alleged dekct or have actual or constructive notIce of it (FreYlJlan v Duane Reade, II/c., 24 Misdd 1211A, 800 NYS2d 369 [Sup. CL Kings County 211119J). The-.defendant has not subllllltcd any evidentiary proof to demonstrate that the magnetic IlckL the attendant component of the MRI machine, was open ,me! obvious, readily apparent and not inherently dangerous, that it h,1d no duty to \\lam of the condition, or that it did not cause or create the alleged condition. The deJcndant argues that using one's ordinary senses, tlle MRI machine IS an open and obvious piece ofcliagnost-ic medical equIpment However, whJ!e the MRI machine is readily apparent ,md vIsible, the magnetic field cannot be visualIzed or apprecIated with the use of one's ordl nary senses. Thus, it is concluded that it is not open and obvious. Sh<lr,l Call1ll/Zo testified that as part ofhcrtraimng to become an MRltechlllcwn, she was lI1s(ructed conccrnll1g the safe Lise of the macllll1c, Including warning the patient Ilotto \-vear or bring ,my type ofmctal111l0 the MRI rOOlll. She testified that she asked the decedent whether he had a heanng aid or other metal, and he replied that he did not. However, she noted that he had a walker Although she (old the decedent and his son to \vail as she entered more fully 11110 room to prepare for the exam, the the plaintifltesti!ted that they were not instructed to \valt, and there was no mention that the walker posed a s<1lcty Issue. Addllionally, there were no markings on the noOl" or anywhere in the room \vaming ,lllYOlle with a walker or lnctal cqulpmentllotto proceed While Shara C,nHlI/_zo and Carlos Rivera both testi lied that they were tr~lil1ed with regard to s,-llCly, It has not been del1lonstnltcd tilat those saCcty prinCIples were complied \\11thas the decedent was pertl'lllted to bring his walker 1I1tOan area which posed danger il-om thc inVIsible magnc,tic licld. The dclclllbnl has not demonstrated that it was not negligent In f~lillllg to prevent thc walker li'om hClng brought imo the MRI mom by the decedent, causing his \valler to be propelled to the machine. Here, hy the dcfcnd<lll1's own submISSIons, It has heen demonstrated that the MRlmachlrlc <'1J1dts attendant I 111~lgl1etie field, which is turned on at all times, rcqull-cll speCIal precautions due to the inherent danger ClSSOCI<.lll'd With the magnetic fleld, und Its ahi!Jty to cause serious injury or death from propelling objects. Neither has the defendant demonstrated that the MRlm<.lchine and its allentlan( nl<lgnetie llcld ;Ire not lI1hcn.:nLly dangerous. The defendant had actual and construclive notice orthe dangerous potcnli<.1iol'Lhc magnetIc ficld for which there were safety precautions to prevent lllJury. Conilicting [* 7] Mahony v ZW:lngcr lilLIe" No.1 0-257()l) Page 7 testillHlny cllilcernillg wllc1her or not the decedent was lI1structed to wait <Jlldenter no fun her into tIll.: rOOI11. recludes sUlllmary judgment 111 the defendant's favor. p While an MRI is all accepted medica! servIce provided by a medical professIOnal under a dUlY!O perform in a manller consistent with legal and professional responsibilities. the facls in this case compel the cOlldllsionlh~lt the MRI machine with its attendani magnetic licld. was not openly obvious and that it IS inherently dangerous (see. Robinsoll t' Jewish f/ospiw/ aud Medica/ Cellfer of Brookly", :2 75 AD:2d J(12, 712 NYS2d 585 [2d Dept 2010]). The defendant's evidentiary sllbnllssions established the need 10 exercise safety precautions to effectuate a safe environment 1'01' the plainti rr and others during the administration or <In !vl R I exalll_ The defendant had a duty to properly warn the plaintllT of the danger and to prevent the use of the walker in the vicinity of tile machine where the plainti fTand others would be put in lhmger from the metal object.. I3asetlllpon the foregoing, that branch of defendant's first causc of action for negligence is denied. application A / FINAL DlSPOSITlON which seeks dismissal of the ~ / JS::/ \ __ x_ N5lN-FiNAL DlSI'OSI~)N

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