Perez v Lewis
Annotate this Case
Download PDF
Perez v Lewis 2013 NY Slip Op 32069(U) August 26, 2013 Supreme Court, Suffolk County Docket Number: 05-26205 Judge: Jerry Garguilo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx and Westchester County Clerks' offices. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 05-26205 CAL NO. 13-00364MM SUPREME COURT - STATE OF NEW YORK I.A.S. PART 47 - SUFFOLK COUNTY PRESENT: Hon. JERRY GARGUILO Justice of the Supreme Court MOTION DATE 5-23-13 (#002) MOTION DATE 7-24-1 3 (#003) 7-24- 13 ADJ. DATE Mot. Seq. # 002 - MD Mot Seq. ## 003 - XMG X THOMAS PEREZ, P1ai nt i ff, - STEVEN R. BLYER, ESQ. Attorney for Plaintiff 300 Marcus Avenue, Suite 2E5 Lake Success, New York 11042 against - RICHARD LEWIS, M.D., Defendant. FELDMAN & KIEFFER, ESQS. Attorney for Defendant 1 10 Pearl Street, Suite 400 Buffalo, New York 14202 Upon the following papers numbered I to= read on this motion for summary jud.gnient; and cross motion to supplement the bill of particulars; No[-ice of Motion/ Order to Show Cause and supporting papers (002) 1 - 10 ; Notice of Cross Motion and supporting papers (003) 1 1-26 ; Answering Affidavits and supporting papers -; Replying Affidavits and supporting papers 27-28; Other 29-30 ; ( ) it3 is, ORDERED that motion (002) by defendant Richard Lewis, M.D. for an order pursuant to CPLR 32 12 granting summary judgment dismissing plaintiffs complaint is denied; and it is further ORDERED that cross motion (003) by the plaintiff Thomas Perez for an order pursuant to CPLR 3032 f or leave to serve an amended/supplemental bill of particulars is granted and the proposed amended verified bill of particulars is deemed served nunc pro tunc. In this medical malpractice action, Thomas Perez alleges that defendant, Richard Lewis, M.D., negligently departed irom good and accepted standards of medical care and treatment when he performed kidney transplant surgery on the plaintiffon or about May 9, 2003 at Stony Brook University Hospital. It is alleged that the defendant perforated, lacerated, or cut the bowelhtestine, causing the plaintiff to sustain injury and undergo additional surgical repair. It is further alleged that the defendant failed to discover and diagnose the trauma to the bowel during surgery, failed to properly monitor him after surgery, and delayed treatment of the iti-jury causing further damage. [* 2] Perez v Lewis Index No. 05-26205 Page No. 2 Defendant Dr. Lewis seeks summary judgment dismissing the complaint on the basis the care and treatment he delivered to the plaintiff was within the standard of care, and was not a proximate cause of the injuries claimed by the plaintiff. I he 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 eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends ofAnimals vAssociated FurMfrs., 46 NY2d 1065, 416 NYS2d 790 [1979]; Sillman v Twentietlz Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N Y. U. Medical Center, 64 NY2d 85 1. 487 NYS2d 3 16 [ 19851). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N Y. U. Medical Center, supra). Once such proof has been offered. the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ...and must show facts sufficient to require a trial of f any issue offact (CI LR 3212[b]; Zuckerman v City o New York, 49 NY2d 557,427 NYS2d 595 [ 19801). The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form (Joseph P. Day Realty Corp. v Aeroxon Prods., 148 AD2d 499,538 NYS2d 843 [2d Dept 19791) and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus CO.,79 AD2d 1014,435 NYS2d 340 [2d Dept 19811). In support of 1his motion, defendant Lewis has submitted, inter alia, an attorney s affirmation; the affidavit of Richard L,ewis, M.D.; copies of the summons and complaint, defendant s answer, and plaintiffs verified bill of particulars; and an uncertified copy of the Stony Brook University Hospital record which fails to comport with CPLR 32 12 and 45 18 and is not in admissible form. Expert testimony is limited to facts in evidence (see GI~SO Allen v Uli, 82 AD3d 1025, 91 9 NYS2d 179 [2d Dept 20 1 11; Marzuillo v Isom, 277 AI12d 362,716 NYS2d 98 [2d Dept 20001; Stringile v Rothman, 142 AD2d 637,530 NYS2d 838 [2d Dept 19881; O Slzea v Srrrro, 106 AD2d 435,482 NYS2d 529 [2d Dept 19841; Hornbrook v Peak Resorts, Inc. 194 Misc2d 273. 754 NYS2d 132 [Sup Ct, Tomkins County 20021). The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage (Holton v Sprain Brook Manor Nursing Home, 253 AD2d 852, 678 NYS2d 503[2d 19981, app denied 92 NY2d 8 1 8, 6 8 5 N Y S2d 420 [ 19991). To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant s negligence was a substantial factor in producing the alleged injury (see Derdiarian v Feli-u Contracting Corp., 5 1 NY2d 308, 434 NYS2d 166 [ 19801; Prete v Rajla-Demetrious, 22 1 AD2d 674. 638 NYS2d 700 [2d 19961). Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the plaintiff s injury (see Fiore v Galang, 64 h Y2d 909, 489 NYS2d 47 [ 19851; Lyons v McCauley, 252 AD2d 5 16, 5 17, 675 NYS2d 375 (2d Dept 19981. iipp dcnied 92 NY2d 8 14, 681 NYS2d 475[1998]: Bloom v City o New York, 202 AD2d f 365.465,609 NYS2d 45 [2d Dept 19941). To rebut a prima facie showing of entitlement to an order granting summary judgment by the defendant, the plaintiff must demonstrate the existence of a triable issue of fact by submitting an expert s [* 3] P e r u v Lewis Index No. 05-26205 Page No. 3 affidavit of merit attesting to a deviation or departure from accepted practice, and containing an opinion that the defendant s acts or omission:; were a competent-producing cause of the injuries of the plaintiff (see Lifshitz v Beth Ismelkfed. Ctr->Kings Highway Div., 7 AD3d 759, 776 NYS2d 907 [2d Dept 20041; Dontaradzki v G k n Cove OB/GYNAssocs., 242 AD2d 282, 660 NYS2d 739 [2d Dept 19971). Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury (Bengston v Wrrng, 4 1 AD3d 625, 839 NYS2d IS9 [2d Dept 20071). I n his expert affidavit, Richard Lewis, M.D. has set forth his education and training as well as the materials and records which he reviewed. He is licensed to practice medicine in New York State and is board certified in internal medicine, nephrology, and urology. Dr. Lewis opined within a reasonable degree of medical certainty that the care and treatment he rendered to Thomas Perez in 2003 met the applicable standard of care. He continued that at no point did he enter the peritoneum or cause injury to the peritoneum as the kidney transplant was performed in the extraperitoneal space. Dr. Lewis stated that had the peritoneum been damaged during his surgery, he would have observed the injury and it would likely have resulted in intraperitoneal fluid moving into the extra peritoneal space into which the kidney was engrafted, which would have facilitated recognition of a tear in the peritoneum, which could have been repaired immediately. Dr. Lewis also opines that he closely monitored the plaintiff and provided appropriate instructions to the hospital staff to monitor his progress after the surgery of May 9, 2003, and that he did not delay in treating the bowel perforation. Dr. Lewis avers that at no time did he damage the peritoneum or the bowel, yet he offers no explanation for the cause of the plaintiffs perforated peritoneum and bowel. He continued that on May 12, 2003, bacteria grew from the fluid culture previously taken on May 11, 2003, however, he does not indicate the type of bacteria grown in the culture or its possible source. On May 15, 2003, the plaintiff became acutelj i l l with drainage from his operative site. His clinical presentation was consistent with that of a perforated colon which required immediate surgical intervention. Dr. Lewis stated that surgery was performed by Dr. Brebbia who noted that the right colon, including the cecum, had herniated through a peritoneal defect into the area ofthe extra peritoneal transplant, and that there was a perforation in the colon requiring a segmental resection ofthe colon and a diverting colostomy. Dr. Lewis further stated that he now believes that the peritoneal defect and the perforated, herniated colon were not present during the ssirgerj oJ Maj 9, 2003 and that they were not caused by his surgery. Dr. Lewis stated that although the plaintiff alleges a theory ofrcs @sa loquitur, he does not believe he was negligent in his care and treatment and that the plaintift s injuries were likely related to the postoperative peritoneal dialysis. However, he does not state the basis for this conclusory opinion. It is noted in reviewing Dr. Lewis operative note of May 9, 2003, that he stated that a combination of sharp and blunt dissection was used to separate the peritoneum from its attachment to the wall and floor of the right iliac fossa. He does not discuss this dissection of the peritoneum in his report or state that there \vas no damage caused to the peritoneum during this dissection. He does not indicate that any time prior to closure that he inspected the peritoneum, particular in the area of dissection, for rents or tears, or any damage, leaving this court to speculate as to the same. [* 4] Perez v Lewis Index No. 05-26205 PageNo 4 The plaintiff has submitted a conflicting report from his expert who is licensed in New York State. He set forth his education and work experience and the records and materials which he reviewed. It is the plaintiffs expert s opinion that 1)r. Lewis departed from the standard of care during the surgery of May 9, 2003. He continued that while a nick or rent or damage to the peritoneum is a risk of the surgery the plaintiff underwent, the departure from the standard of care is that Dr. Lewis did not observe, recognize, repair. or attempt to repair the damage to the peritoneum while the plaintiff was still on the operating room table. The plaintiff s expert stated that it is obvious that the peritoneum was damaged and not repaired based upon the postoperative lab work which showed fecal bacteria in the peritoneal fluid, and as set forth in the preoperative report of Dr. 13rebbia just prior to the second surgery. He continued that based upon the deposition testimony of Dr. Lewis, and further confirmed by the lab work done on the plaintiff from May 1 1 through May 15, 2003, it was obvious that the infection and bacteria demonstrated by the 1.abs indicated fecal matter in the blood, which could only have come from damage to the bowel caused by the damage to the peritoneum. The plaintiff s expert cominued that when Dr. Brebbia performed the subsequent surgery on the plaintiff, he noted a 6 cm hole in the peritoneum through which the colon descended and became herniated and ischemic, allowing bacteria to enter the blood stream. He affirmed that such hole in the peritoneum could only ha\ e occurred as a result of a cut, or injury, or damage to the peritoneum during the first transplant which Dr. Lewis failed to repair. The plaintiffs expert further stated that the damage to the peritoneum is also consistent with the hospital note by the infectious disease physician on Ma,y 13, 2003, wherein Dr. Lewis acknowledged that he nicked the peritoneum, which fact was also related to Mrs. Perez imniediately following the .surgery of May 15, 201 3. Plaintiffs expert further stated that the 6 cm hole in the peritoneun? is consistent with such a statement. The plaintiff s expert stated that Dr. Lewis further departed from the standard of care in his failure to order any diagnostic tests, such as an ultrasound, MRI, CAT scan, after the initial diagnosis of an infection was noted on May 1 1, 2003. The plaintiffs expert stated that there is no explanation offered by Dr. Lewis on what caused the 6 cm hole in the peritoneum. He concluded by stating that the ileostomy and subsequent reversal are causally related to the damage to the peritoneum. Based upon the foregoing, it is determined that the conflicting expert opinions with regard to departures from the good and accepted standards of medical care and treatment, and proximate cause of the plaintiff-s claimed injuries, including a perforated peritoneum, perforated bowel, and subsequent surgery, preclude summary judgment from being granted. Accordingly, motion (002) by defendant Dr. Lewis for summary judgment dismissing the complaint is denied. I The plaintiff has submitted an unredacted expert affirmation pursuant to (Mclrarto v Mercy Hospital, 241 AD2d 48,670 NYS2d 570 [2d Dept 19981) with a copy of the expert s curriculum vitae, which this cx~urthas reviewed and found to be identical to the affirmation contained in plaintiffs opposing papers, and which affirmation and curriculum vitae have been returned t o counsel for the plaintiff. [* 5] Perez v Lewis hides No. 05-26205 PageNo. 5 Turning to motion (003), the plaintiff seeks leave to serve a supplemental/amended bill of particulars in which he is seeking to add an additional response to paragraph Number 4 of the bill of particulars dated February 23, 2007. Such additional response sets forth that defendant Richard Lewis, M.D. was hrther negligent and departed from the standard of care in that during the kidney transplant surgery he nicked, cut, damaged the peritoneum; failed to repair the damage done to the peritoneum during the surgery, and failed to visualize or discover the damage to the peritoneum before the surgery was completed. It hirther adds that the damage to the peritoneum was a direct cause of the injuries set forth in the bill of particulars Motions for leave to amend bills of particular are to be liberally granted in the absence of prejudice (Sirnino vSt. Mmy s Hospital oj Brooklyn, 107 AD2d 800, 484 NYS2d 634 [2d Dept 19851). The plaintiff, by counsel, has clearly set forth the reason for the delay in seeking the amendment. No prejudice to the defendant can be demonstrated as both Dr. Lewis and plaintiffs expert addressed the very issues, sought to be pleaded in the proposed amended bill of particulars, in their respective affidavit and affirmation. Accordingly, motion (003) is granted and the proposed amended verified bill of particulars is deemed served nunc pro tunc. Dated: - - FINAL, DISPOSITION X NO
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
