Scarfutti v Eastern Long Is. Hosp.

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Scarfutti v Eastern Long Is. Hosp. 2013 NY Slip Op 32374(U) September 30, 2013 Sup Ct, Suffolk County Docket Number: 09-9272 Judge: Daniel Martin 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 County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. 09-9272 C-4L No. 12- 1 1790hfM SUPREME COURT - STATE OF NEW YORK I.A.S. PART 9 - SUFFOLK COLJNTY t' R E ; s E .y T : IIon MOTION DATE 2-0- I3 ADJ. DATE 4-23- I 3 Mot. Seq. # 001 - M D # 002 - MotD D,4NIEL MARTlN lusticc of the Supreme Court - X TIERNEY & TIERNEY Attorney for Plaintiff 409 Route 112, P.O. Box 905 Port Jefferson Station, New Yorlc 1 1776 I$ IN D I S c' A R F IJ TT I, Plaintiff, - FUMUSO, KELLY, DEVERNA, SNYDER SWART & FARRELL, LLP Attorney for Defendant E s e n Long Islaiicl atr 1 10 Marcus Boulevard, Suite 500 Hauppauze, New York 1 178s against - l<IZSTEKN 1,ONG ISLAND HOSPITAL and WILdI,IAiM KENNIE, M.D., Defendants. ~ BARTLETT, MCDONOiJGH, LY: MONAGI-IAN Attorney for Defendant William Reniiie, M.D. 170 Old Country Road, 4th Floor Mineola, New York 11 501 X OHDLTRED t1i;it the inotion (#001) by derendant William Reniiie, M.D., and the niotion (ftOO3) bj, cIcIciicILintListel n I ong Island Hospital hereby are consolidated for the purposes of this detct-minatioil; iiiici It I\ O R D E R E D that the motion by defendant William Reiinie, M.D., seeking summai-yjucigiiicnt dismissing plaintifl's complaint is denied; and it is further O K D E R E D t h i t the motion by defendant Eastern Long Island Hospital seeking sumniar) Iuclgiiient el1 siiii\siiig p l ' u i i t i r1-h coiiiplciint is determined as hereinafter stated. [* 2] P 1;i i ii t i ff S i n d i Sc a r fiit t i c oiiinienc ed this action against de fendant s E astern Lon g I s I an d Ho s 13 it a 1 ii nci \L~iIliaiiiReiinie. 41.13.. to recover dainages for injuries she allegedly sustained as a result of medical nialpractice. Bq Iiei- coniplaint. plaintiff alleges, among other things- that Dr. Rennie failed to timely iliapose and piuperly treat her right foot infection and that, as a result of such failure. she \\ as admitted into Ijecoiiic Ba), bledical Center on September 2 1. 2006, and through bills of particular \.e learn she alleges such i ailures led her to suiYer cellulitis. osteomyelitis of the right foot, neuritis of both fcet. and right and left foot neuromas. Plaintiff also alleges, among other things, that the nursing staff of Eastern L on y I s I;In d 14os p i t ;i 1 n eg 1i ge n t 1y per formed a physic a I e m ni i 11 i on o f her; n eg 1i ge 11 I y disc h arg ed her ti-om at t i t s emeyency rooni without conducting the proper diagnostic tests; failed to question the orders of Dr. I<.ennie:and Iiii led to inform her to return to the hospital for a re-evaluation when she phoned the follo\viny d a j , n.i t 11 coinpla in t s. On Septcniber 19, 2006, at approximately 9:30 a.m.. plaintiff presented to the eniergency department of Eastern Long Island Hospital ( ELIH ) with complaints of pain i n her right foot and swelling on the dorsal aspect of her foot. Plaintiff infornied the triage nurse that the pain In her right foot had begun the day before, that she had dropped a vacuum on Iier right foot approxiniately oiie week earlier. that she had sustained c h i g p - bites to her shins and feet approximately one month beforehand, and that she suffers from high blood pressure for which she takes Diovan. She was initially evaluated by Cherie I;ingerle. ;I triage niirse, who did not observe any signs ofredness or bruising on tlie dorsal aspect of plaintif fs right toot, and noted that her temperature was 97.5 degrees. Following her evaluation by the triage iiiirse. she was examined by Dr. William Rennie, who noted that plaintiff presented with complaints of pin on the dorsum of her right foot, but did not have any discoloration, open wounds, lacerations or bruises on her right foot. Dr. Rennie s examination of plaintiffs right foot revealed that the pain across the dorsum increased upon plantar flexion and was consistent with tendonitis or bursitis. Thereafter, Dr. 1i.ennie ordered an x-ray of plaintiffs right foot, which revealed slight soft tissue swelling at the dorsum of the right foot a t the metatarsals. Plaintiff was discharged from the emergency department after Dr. Rennie diagnosed her as suffering fi-om tendonitis and local bursitis, and applied a compression dressing. Dr. l<.ennioalso prolided plaintiff with special discharge instructions for management of her tendonitis and bursitis, ct.hich included retmiing to the emergency rooni if there were any signs of increased pain. s.Lvelling. discoloration: elevating and icing her right foot; continuing compression dressing; and following up \\Tit11 Iier medical doctor by the end ofthe week. The following aftet-nooii, plaintiff phoned the hospital anci spoke \\.it11 a nurse, \vho allegedly informed her that, since she had a sprain, tlie pain would get worse hefore it becamc better, and that she should return to the hospital if her foot continued to bother her. On September 2 1, 2006, plaintiff presented to the Peconic Bay Medical Center with complaints of chillb a n d riylit h o t swelling with redness, which had become worse the night prior to this prescntation. .4ftei- a n ewiiination (ofpIaintiff*s right foot, it was determined that she was suffering fi.oiii dorsal sn,clling and erythema, and blood work revealed an elevated white blood count. Thereaftcr, plaintif f \\;is xlmittcd to Ikconic Bay Medical Center under the care of Dr. George Ruggerio with a ciiayiosis o f acute cellulitis of the right foot, and intravenous ( IV ) Clindamycin w s begun. how eve^-. the su,clling in plainti ftTs right foot became worse, extending from the dorsum of her right l oot to mid\\.:th u p her right Icy. 0 1 1 September 23. 2006, p1aintif~ developeda foot abscess. Following tlic positive culttii-c t or h t a p l i mreLis bacteria, she \\;as placed on a course of Cipro that was actministered via IV. The triplc boiie scan t h a t I\.;IS performed failed to rule out osteomyelitis secondary to pain, and, therealter, an oiitpationt magnetic rcsonance imaging ( MRI ) examination with contrast was ordered to rule out osteomyelitis. ;is nell a s to determine the length of treatment. On September 27, 2006, plaintiff w a s discliargeti ti.oni J cconic Bay Medical Center with a diagnosis of right foot abscess, right foot cellulitis, a n d ;i gait disorder secondary to right foot pain. Plaintiff was ordered to scheduled a follow up with Dr. [* 3] Page Y o . i f?.iisgcii o \\ i t h i n foul days from lier discharge. On September 29, 2006, an outpatlent MRI euinlnLltlon 1x1 mccl on p1,iintiff s right foot revealed an abnormal niarrom signal consistent with osteomyel~t~s foi 4 io1 lo\\ up VlRI cumination on November 2. 2006 indicated no ebideiice of osteoiiiyelitis 01 Infcctlon at rh,it timc Tlieiccittei. plaintiffconinit.iiced this medical malpiactice action 1)r. Rciinie no\\. iiio\.es for summary judgment on the basis that he did not deviate for the acccptahle standard o f iiiedical care when he treated plaintiff during her visit to tlie emergency roo111at E L l H on Scptenibei- I O . 2006. and that his treatment of her right foot did not proximately cause her alleged iiijuries. I n support of [lie motion, Dr. Reiinie submits copies of the pleadings, the parties deposition transcripts. plaintiftwsmedical records relating to the injuries at issue, and tlie affirniatioii of his expert, Dr. Gregory Mar;ii.in. ~41~0, moves for summary judgment on the bases that the care and treatment rendered by ELI13 its nursing staff did not deviate from good and accepted standards of medical and nursing care, and that the care i-endercd did not proxiinately caiise plaintiff s alleged injuries. ELIH further asserts that it is n o t i.ic:irioiisly liable for the alleged negligent treatment rendered by Dr. Reiinie and in any event Dr. Rennie di n o t coiiiiiiit malpractice. ELIH relies on the same evidence submitted by Dr. Reiinie 011 his motion for sLiiiimai-yjiidgment. ELIH also submits a certified copy of plaintiff s medical records, tlie affidavit of its expert, Dr. Anthony Mustalish, the affidavit of Patricia Pispisa, and the contract between ELIH and Paragon Eniergcncy Medicine, P.C. Plaintiff opposes Dr. Rennie s motion on the ground that there are material triable issues of fact as to whetlier lie deviated from good and acceptable medical practice when he treated lier on September 19, 2006. and whether such deviation was the proximate cause of her iiijiiries. Plaintiff opposes ELIH s motion. arguing that there are material triable issues of fact as to whether it is vicariously liable for Dr. Ikiinie s alleged negligence during his treatment of her in its emergency department on September 19, ?O(h. n opposition to the motions, plaintiff submits copies of the pleadings, her own affidavit, the parties I deposition transcripts. certified copies of her medical records regarding her alleged injuries, and a redacted and Linsigned copy of her expert s affidavit. In addition, plaintiff submits an uiiredacted copy of her expert s at iiclavit for in camera review. On a motion for suiiiniary judgment in a medical malpractice action, a defendant doctor has the burden of establisliin~tlie absence of any departure froni good and accepted medical practice, or that the p l c i i i i t i f f \ \ a s not injiired by such departure (see Swezey w Moiitcigiie Rehab & Paiiz Mgt., P.C., 59 AD3d 43 1 . S 7 2 NI S2d 1 OC) [2d Dept 20091, 11, denied 18 NY3d 880, 939 NYS2d 293 [2012]; Geriiiciiiie v Yu, 3 9 , i1)-3d O S 5 , 854 \YS2d 730 [2d Dept 20081; Slialrid v New York CiQ ffealtli & Hosps. Cory., 37 AD3d XOO. 1350 NJ S2d 5 I C ) [2d Dept 20081). A physician may establish that he or she did not depart or deviate fr-on1 x c c p t e d nicdical practice 111 his or her treatment of the patient. and that lie or slic was not the 131 oiimatc C;ILISC of t h e plaintiffs nijuries through the subinission of iiiedical records and competent e\pci t ,ifticla\ i t s ( \ C Y . C cr.ch.o v New Yurk CiqJffenltlz & Hosps. Cory., 74 AD3d 1005, 903 NYS2d 152 [ d Dept 2 0 10 I. Dezrtscli 1 Chciglassicin, 7 I AD3d 7 18, 896 NYS2d 43 1 [2d Dept 20 101; Pluto v Curieratire, 54 4L)id 741. S h 3 YYSL ci 726 [2d Dept 20081). Howcver, a doctor is not a guarantor o f a correct diagnosii 21 \Liccc\\t iil ticatmcnt. n o r I \ a doctor liable for a mere error i n litdginent if he or she has considel-ed tlie pitieiit \ bcst i i i t c i c s t after careful evaluation (,ee Nestorowiclz v Ricotta, 97 NY2d 393, 740 NYS2d 6OX [2002]. OQISIJWState of New York, 66 NY2d 636, 495 NYS2d 359 [ 19851; Beriicirtlv Block, 176 A I ) ? t i 843. 575 VJ\I S?d 506 [2d Dept 199 1 I). If the defendant doctor sustains this burden, 111ordei to clefeat wiiiiii;iry judgiiicnt, a plaintiff must submit ii physician s affidavit of merit attesting to a departure ti om ,rcceptcd pixcticc and containing thc attestiiig doctor s opinion that thc defendant doctor s oinisiion r or tlcpartui es \E crc ;I competent producing cause of the iiijiiry (Dmmrcidzki v Gleii Cove ob/Gjw ..lssoc.. 242 ~ \ I ) 2 c l2x2. 2X2>060 NYS2d 739 [2d Dept 19971; we Stiikas v Streiter, 83 AD3d 18, 918 NYS2d 176 [2d ( 1 1 11 [* 4] I k p t 701 11. ,lrAi/i Resrrick. 68 AD3d 692. 890 NYS2d 95 [2d Dept 200c>]; Reboco v !F derf. AD3d 41 457.83s hl J2d I2 1 ( 2 d Dept 20071: Jolinstm 1 Qiieeiis-Long Is. Group, 23 AD3d 535. 806 NYS2d 0!4 [.Id Llept 7005 I. Dellacoue v Dorf 5 AD3d 625, 774 NYS2d 776 [2d Dept 20051). General allegatlons o f mxiic,il inalpxcticc. increly conclusory i n nature and unsupported by competent el idelice establtshing tlie c \ w i t i d clrmeiit\ ol the claim, are insufficient to defeat a motion for ~iinimary judgment ( $ ( v Doluii v Hd/wrri. 1 !\D3cl 1 1 17. 902 NYS2d 585 [2d Dept 20 IO]; Arkirz 1 Resnick, s q i / n : Holhrooh v CTrriterl Hasp. ,Wed. C tr:. 248 AD2d 3 5 8 , 669 NYS2d 63 1 [2d Dept 19981). 11 Hasccl tipoi1 the adduced evidence, Dr. Rennie has established his entitlement to judgment 21s 21 matter of law on the issue of liability by proffering the parties deposition testimonies. and by submitting tlic at fida\.it of 111..Gregory Mazarin, in which that doctor opined that the care and treatment rendel-ed to plaintiff did not deviate or depart from good and acceptable standards of medical care. (see Muni:, v Moiriit s iiicri Hosp. of Qiieeris,9 1 AD3d 6 12 [2d Dept 20 121; Beluk-Red v Bollengier, 74 AD3d 1 1 10, 903 YYS2d 5 0 8 [2d Dept 20 IO]; Ellis v Eng, 70 AD3d 887, 895 NYS2d 462 [2d Dept 20 IO]; Acljete-y v New York CiCv Hetrltli & Hosps. Cor?., 63 AD3d 865, 88 1 NYS2d 472 [2d Dept 20091; Tilorto v , J d d i , 62 AD3d 784,878 NYS2d 457 [2d Dept 20091). Dr. Mazarin, who is board certified in emergency medicine, si:ates that the treatment rendered to plaintiff by Dr. Rennie on September 19, 2006 was, at all times, well within good and acceptable standards of medical care. Dr. Mazarin explains that, in an emergency department. i t i s customary for a patient to first be triaged and then seen by the emergency department physician. Dr. Mamrin states that plaintiff, during the time of triage, was found to be afebrile, since her teniperature \\ as 07.5 degrees, and that her claim that this particular temperature was on the high side for her h a s no basis in medicine, because a temperature of 97.5 is considered to be without fever. h loreovcr. Di-. Mam-in states that Dr. Rennie appropriately obtained plaintifYs past medical and surgical histories, inf ormation soii her presenting complaints, and performed a physical examination of her feet, including H sensory aiid motor exam. DI-.Mnzarin further states that the assertion that blood work should have been ordered based upon plaintiff-s presenting syniptonis is without merit, because plaintiff was afebrile on examination; her right tbot \\ as not red or erythematous; there were no inflammatory changes noted on her right foot: there was 110 evidence of streaking; and the chigger bites reported by plaintiff, on examination, were well healed; and plaintift-s skin temperature was not found to be abnormally warm upon examination by Dr. Reiinie. Dr. Lf a ,m i I I I statcs t h a t a t the time of pfaintif fs presentation to ELIH and Dr. Rennie s examination of her, . A - there w a s 110 evidence of an infection. Additionally, Dr. Mazarin explains that, siiice tliei-e was no clinical cL.idence oi an inkction. there was no indication for blood tests, and that blood tests, in particular ii wliitc blood count. i s not ;i reliable marker for cellulitis In addition. llt-. Mazarin opines that Dr. Rennie s diagnosis oftendonitis and bursitis \\ as. within ;I iusonable dcgrce o f medical certainty, the appropriate diagnosis based upon plaintiffs presenting c~oiiip1;iitiki. history and Dr. Rennie s examination. Dr. Mazarin states that the treatment of tendonitis her aiid bursitis consists of protective wraps to the affected area and the application of ice. and that Ilr. I?. c n ii i e s ;I p 13 I i c ;i t i o 11of a compress i o i i dress i ng and hi s d i sc liarge inst i-uct i on s were approp iat e a t i cl . . iiiedically iiitlicatcd based upon plaintiff-s history and examination. Dr. Mazarin opines that DI-.Rennic did n o t hi1 to m:tl<e ;I differential diagnosis. nor did he negligently discharge plaintiff from the ELII-1 s ciiierycnc). rooni. as is evidenced by tlie very specific discharge iiisti-uctioiis that he gave to plaiiitit f prior to hci- clischai-sc. 111-, Mazarin states that Dr. Rennie specifically instructed plaintift to look for any signs 01 iiii2ction tliat might dcvelop, iticirtding signs and symptoms for cellulitis. [* 5] On thc. isr~ic of causation, Dr. Mazariii states that it is unclear as to whether plaintift-s subsequent ;ind right \hot neuromas \vue causally related to the iiifectioiiicellulitis that she suffe~-ed. that. and althou!$i a n eai-licr MR1 study r e ~ ~ a l she suffered from osteomyelitis, a repeat klR1 study revealed that ed the osteomyelitis had resolved. Such opinions certainly do not emphatically demonstrate a failure t o link thc nialpractix to the alleged injuries and in fact may suggest that there is some link. A statement that a particular i n j u g , (osteomylitis) had resolved over a period of time. however short. says nothing about c,.iusation. Furthei- it would appear that the selection of the word unclear with regard to the plaintift s foot neuromas does little to inform this court o f a lack of cause and effect. Finally, Dr. Mal \\ ithin ;i reasonable degree of medical certainty, that the care and treatment provided to plaintiff by DI-. f2.ennie ;I[ ELIH on September 19, 2006 was wIt1iin accepted medical staiidards of care, and that no actio11 o r inaction by Dr. Ikiiiiie proximately caused or contributed to plaintiff s subsequent iiijiiries. The latter. 0 1 1 causation. scciiis to contradict his specific opinions and can be said to be nothing more than ;in 11 n s 11 po rted yen e 1-21I i z at i o n . p It:ft I n opposition to Dr. Rennie s prima facie showing, at least on the issue of malpractice, plaintift has raised a triable issue offact as to whether Dr. Rennie departed from good and accepted medical practice. (.~:c~~ Barrrtt 11 Hudson Vuf. Curtliovnsciifar Assoc., P.C., 91 AD3d 691, 936 NYS2d 304 [2d Dept 20121; L~~slrur v Stuteir Is. Med. Group, 88 AD3d 785,930 NYS2d 649 [2d Dept 20 1 I]; Reti v Gdkiglier, 3 1 AD3d 7 3 1, 8 18 NYS2d 490 [2d Dept 20061). Plaintiff primarily relies upon the affirmation of her expert, \vho is licensed to practice osteopathic medicine in the State of New York. In his affirmation, the expert states that. within a reasonable degree of medical certainty, tlie care and treatment rendered to plaintiff by DI-. Rennie on September 19, 2006 at ELIH was not within tlie confines of good and acceptable medical c;xe. a n d that the departures proximately caused or contributed to plaintiffs injuries. The expert states that DI-. Rennie should have performed blood work on plaintiff during her September 19 visit, because he felt \variiiness i n her right foot aiid plaintiff told him that she did not have any swelling or pain after dropping a vaciiiiiii cleaner on her foot. He further considered her representations that she did have redness approximately 3 inches in diameter when she saw Dr. Rennie. According to the expert. Dr. Rennie s ci-os:, out in plaintift s emergency room records indicates that he was hesitant in stating whether her right foot \vas abnornially warm. a fact left unexplained by Dr. Rennie. In addition, the expert states that the signi ticant niiniber of tlie well healed chigger bites which were still itching should have put Dr. Rennie on notice that the swelling may have been caused by an infection, aiid that lie should not have concluded that i t \vas :I spi-aiii wilhout perforining a more in-depth differential diagnosis. Furthermore, the expert slates that. if Ilr. Rennie considered that plaintiff had an infection in his differential diagnosis, lie sliotild ha\,e oidercd a blood test. Moreover, the expert states that any elevation above 10.8 in a person s white blood count is ;i determining factor of a possible infection,(iinlil<ethe cliaracterizatioii of Dr. ihlazariii. and tliat i1 plaintift s blood count was 12.5 two days after visiting the emergency room of ELIH, then any statement that plaintifi s white blood count would have been normal when she visited ELIH is speculation. ;iiid iiot based upon medical literature. However, the expert states that, if Dr. Rennie ordered blood work ai.id i t revcaled that plaintiff s white blood count was noi.mal then Dr. Rennie s dischargc instructions \\ oiild h a \ t been pi-opcr as a precaution. because absent a fall or twisting of the foot, a sprain would not 0c c I I I-. 7 lie iffii m,itioii of plaintiff s expert, which concludcs that plaintiff s injuries weie proximately c i~ised 111 lierinic s failu~e pcrforni blood work, and to projxrly and timely diagnose her m i t h an by to iiitcction \\ hcn \he prcsentcd to ELIH s emergency department on Septeinber 19, 2006, may not be specitic n i t h ieg,ii-d to ~ ~ i i i ~ ~ iand i i t i o may be too generalued to raise a triable I S S L K of hct on the issiie of causation ioecj l l v w e : I Prospect Hosp., 68 NY2d 320, 5 0 8 NYS2d 923 [ 19861; Forrett v Tierne-y.y. AD3d 707. 91 036 NI S2d 2 0 5 [2d Lkpt 20121; Sinriiioirs v Brooklyn f f ( ~ ~ p . 74 AD3d 1 173, 903 NYS2d 521 [3d Ctr., [* 6] L kpt 20 101: C L ~ I v IWilliains, 32 AD3d 88 I , 822 NYS2d 548 [2d Dept 20061) Ho\\wer, the need forI J~ >iicIi appropriate information is only required if the causation had been put into issue by Dr. Rennie. The 7 I>epartmentlias taken the position that ... to defeat suniniary judgment. the ~ionrnoving party need 011 I \ m i x ii triable issue offact with respect to the element of the cause of action or theory of nonliability that is he hiib-ject oi the moving party s prima facie showing. (see Stzikis 1 . Streiter. 83 h.D.3d 18. [2d Dept. 20 1 I J ) At issue then is Lvhether Dr. Rennie has met his burden regarding causation by opining that some o f the injuries niay o r may not have been caused by Dr. Rennie s malpractice and that some of the iii-juries alleged had r.csol\.ed themselves. As the court has already suggested, it believes lie did not. As that is the case, plainti ti iiecd not submit evidence rebutting same and the court need not consider the adeqiiacy of 5 1 Ill C . ; I t should be noted that in reply to the plaintiff s opposition, Dr. Rennie argues that plaintiff s experr suggested tlixt il blootl work were conducted by Dr. Rennie and the results were negative, his later actions v:ith respect to discharge were appropriate. Dr. Rennie then argues that such a position is totally inconsistent with plaintifi s claim of causation. To quote Dr. Rennie s counsel in his aff irmation at paragraph 8, [w~]ithout knowledge as to what the while (sic) blood count was on September 19, 2006 which is conceded by Dr. Ruggiero as unknown, then there can be no way that Dr. Ruggiero can provide an opinion to :I reasoliable degree of niedical certainty that the failure by DR. RENNIE to order blood work \vas a proximate cause of plaintiffs injuries. . Although the statement in question may be subject to a different inteiyretatioii, it would appear that if it is interpreted as counsel does here, it would impose a very difticult burden for plaintiff in proof. However as Dr. Reiinie has failed in his burden of placing the question of causation before the court, that issue must await trial. I n fact. in this failure to diagnose case wherein the failure led to a 2 day delay in treatment. it is difficult for the court to understand how so little is said about causation in all the parties papers. These type of cases. ~ i s ~ i d involving the failure to diagnose cancer and sometimes involving the failure to ly conduct the proper test to determine same, present themselves to the court with the question on causation of did the delay in diagnosis lead to a worse result? In the normal course the delay is for some months or en years and ;I niedical expert can say with a reasonable degree of medical certainty that such a delay, in those c;iiicer cases, had the effect of lessening the patient s chances of survival. Here plaintiff leaves us \\,.it11 no information from her expert on that issue as to the impact of the delay on the alleged injuries but slated abo\.c t h a t matter- w i l l await trial. Accoi dingI>, [>I-. Rennie s motion for summary judgment dismissing the complaint against him denled EILII-I also does not establish its entitlement to judgment as a matter of law dismissing plaintit t.s with regard to certain theories of liability and damages it in Fact does meet that burden. coniplaint a l t h o u ~ h 1 LI 1-1 maintains that plaintiff suggests two theories of liability and cannot sustain either. I t contends that : that the hospital, through its employees, was negligent and also that ELII-I is responsiblc plaititiff allc~es h i . the a c t 5 o f 111-.Rennie. 1o the cktent that plaintiff alleges that ELIH IS liable, through i t i employees, for its own negligent ,icts. I LIH has estahlished, prima fiicle, that its nursing staff did not depait from the applicable standards o i niedi~al nLirsing care i n rendering treatment to plaintiff during her September 19 \. isit to its emergency and depu tmcnt md, i n m y event. that the emergency treatment received by plaintiff from its nursing staff was not ct pioxini,itc C ~ I I I o f her alleged illjuries ( w e Trrrtnglia v Northeir D r i c h e ~ ~ ~C Hasp.. 84 AD3d 1061, 025 J \r S3d iI4 [ 2d Dcpt 2 0 1 11- Shcrliirl v New York City Heultlr & Hospitaf.s Corp., 47 AD3d 800, 8 5 0 [* 7] ?, \ S2d 5 10 [2cl Lkpt ,20081; Feritcutde: v E/ei/ltltil,25 AD3d 752, 809 NYS2d 513 [2d Dept 2(106]: E ricsori Pcrllrsclii. 23 ,4D3d 608, 806 NYS2d 667 [2d Dept 20051). It is fLindamenta1 that the primary Jut!, of ;I hospital s nursing staff is to follow the physicians orders, and that a hospital. generally. will be protectccf ti om tort liability if its staff follows the orders ( Totlt Coirzinrrizi4~ Hosp. ut CIm Cuvr. 33 N\r7?d 5 5 . 705. 292 WYS2d 440 [ 19681: s ~ Sletlzieivski v Cioffi. 137 ADZd 186, 538 NYS3d 9 13 [3d 7 e l k p t 19881). hot e \ w y negligent act o f a nurse [is] considered medical malpractice, but a negligent act 01 oniission bj. ;I iiurse that constitutes medical treatment or bears a substantial relationship to the rendition of nicdical treatnient by ;I licensed physician constitutes malpractice (Bfeifer Boclrzcir. 65 NY2d 65, 72. 480 v N\r S?d 8 8 5 [ 19851: S O C S iegd v Goldfarb, 66AD3d 873, 889 NYS2d 45[2d Dept 20091). This conclusion is no diflkrent \\.it11 respect to the emergency room nurse, fiinctioning in that role as an integral part of tlie i~roccsh rendering treatment to a patient (Bleiler v Bodrzcrr, siipl-a at 72, 489 NYSZd 885). of ELI 1-1.s expert, 111..Mustalish, who is board certified in emergency medicine, states in his affidavit that. \\:itliin ;I iusonable degree of iiiedical certainty, the care provided to plaintiff by ELIH s emergency ckpartinent staff. and 1,y Dr. Rennie, was in accordance with good and accepted standards of medical and nursing care. I l r . Mustalish further states that the care provided to plaintiff on September 19. 2006 did not proximately cause or contribute to tlie injuries she allegedly sustained. Dr. Mustalish opines that the nursing staff of ELIH tiniely and appropriately performed a triage assessment of plaintiff, including obtaining her vital signs, pertinent complaints, prior medical and surgical histories, and appropriately documented such information in the hospital chart. He states that the nursing staff appropriately follo~ved Dr. Keiinie s orders. a i d timely and appropriately arranged for an x-ray of plaintiffs right foot. Dr. Mustalish explains t1ia.t nurses do not have tlie authority to order any diagnostic tests, such as blood tests, or mtibiotics, nor do they have the authority to discharge a patient for which a physician s order is indicated. Aaxrding to Dr. Mustalish, nurses do not have the authority or expertise to diagnose or tender an impression about a patient s medical condition or to decide whether specific treatment is indicated for a particular patient. He also states that nurses are not authorized or trained to supervise or instruct a physician s treatment .and diagnosis except in the most egregious of circumstances, and that there is no e.b.idence of egregious misconduct in this case. Therefore, Dr. Mustalish opines, there was no medical basis upon \vhich the nursing staff at ELIH should have questioned Dr. Rennie regarding his care, treatment and diagnosis of plaintiff. Furthermore, Dr. Mustalisli states that it was within good and accepted medical and nursing practice tor the nurse, who answered plaintiff s call on September 20, 2006. based upon plaintiff iiif(ii-iiiiiigthe iiLii-se that she had a sprain in her right foot, to inform her to continue to follow the discharge plaintiff did not relay any new signs or symptoms, and did not complain about a f c v w iiistrtictioiis, beca~ise or chills. I n fact. plaintiff informed the nurse that her temperature was 98 degrees, which is considercd iil,,riiial and iiot iiidicative of an infection. 11 17 ¬ 1-11 I fill-ther demonstrated that its nursing staff followed the orders of Dr. Rennie, t h a t Dr. Reiinie , oi-ders \\ ere n o t conti-aindicated by normal practice, and that its nursing staff did not commit a n y iiiclepcndent ;rets of negligence (see Bellclfiore v Ricottrt, 83 AD3d 632, 920 NYS2d 373 [2d Dept 201 1 J: SCIIIIIT:Slrr.ml/tur, 66 AD3d 666, 886 NYS2d 484 [2d Dept 20091; Mrrrtine: v L a Portci, S O AD3d 070. v X i 7 \J S?cI 194 [ 2d Dcpt 2008]; Cook v Reistier, 295 AD2d 466, 744 NYS2d 426 [2d Dept Z002]). I : I L I H also argiies that it is not responsible for the actions of Dr. Rennic and further that his trcatnicnt \\:is appropriate and with the standard of care. It argues that there is no basis to hold ELItI \.icai-iously liable fhr Dr. Reiinie s alleged negligent acts unless its staff committed independent acts of ii1:yligcncc or thc attcnding physician s order were contraindicated by iiorinal practice (see Corlettci v F ischer. 10 I .4L)3d O:!C), 956 NYS2d 163 [2d Dept 20 121: Selri v Kcrtz, 7 8 AD3d 68 I 9 1 I NYS2d I I2 [2d Dept 20 IO]1. ~ [* 8] Aftili,ition of doctor n ith a hospital or other medical facilit) . not amounting to employment. I \ 1 insuffjcicnt 10 impute the doctor s negligent conduct to the hospital 01 the medical facilltj (Keitel v Krit:. 54 A113cl 3s . 3 9 0 . 860 NYS2d 195 [2d Dept 20081. citrrig HiN v St. Clare s Hosy.. 67 NY3d. 72. 70,4c)c) Y \ S 2 d 004 [ 1 OXO]: irlso Totli v Bloslzinsky, 39 AD3d 848, 850. 835 NYS2d 301 [2d Dept 1007 1. C ewy II i/liu/ii$. AD3d 88 1. 882 NYS2d 548 [2d Dcpt 20061) ELIH has submitted a copy of its 32 conti ,ict \\ it11 Paragon Emergency Medicine, P.C. ( Paragon ), wherein said contract states. 19 l aragon is engaged as the exclusive provider of professional medical ser\.ices in emergency medicine, consisting of the services of physicians, physician s assistants and nurse practitioners trained in emergency treatment of pati~iits.Paragoil shall provide medical services ... required under this .. A g re erne n t on 1 y through physic i a m , physic i an s assistants aiid n m e practitioners who are shareholders of, eiiiployed by or under contract with I%ragon. Paragon and physicians, physician s assistants and iiurse practitioners shall not be employees of ELIH, aiid Paragon shall prohibit physicians, physician s assistants and nurse practitioners from holding theniselves out as employees of ELIH in any way. The submission of the contract between ELIH and Paragon denionstrates that when Dr. Rennie treated plaintiff he was not an employee of ELIH. (see Siillivnii vSirop, 74 AD3d 1326, 905 NYS2d 240 [2d Dept 280101; Kiltg v &litclzell, 3 1 AD3d 958, 819 NYS2d 169 [3d Dept 20061). Additionally, the affidavit of Patricia Pispisa, Vice ]?resident of Patient Care Services at ELIH, who is familiar with tlie members of the medical stat at ELIH and tlie nature of each member s relationship to the hospital, states that Dr. Reiinic u x not an employee of ELIH on September 19, 2006 or at any other time. It states that Dr. Rennie is a ii-iemberand employee of Paragon, and that Paragon was the exclusive provider of professional medical st:i.viccs in the emergency department. Pispisa asserts in her affidavit that ELIH did not control or direct tl-ic professional medical services rendered to plaintiff by Dr. Rennie on September 19, 2006 In the cmergency department, nor did it assign Dr. Rennie to render such professional services. Pispisa explains tlwt E L I H did not reimburse Dr. Reiinie for his professional services, nor did it grant Dr. Rennie the right and privileges that have been established for employees of ELIH. Furthermore, she indicates that Dr. Rennie. accot-ding to ELII-I s contract with Paragon, is a shareholder, employee or independent contractor \vi t h Paragon. ,4ddiiionally. Di-. Mustalisli states that Dr. Rennie s treatment of plaintiff was within good and acccptable skiiidnrds of medical care, that he ordered the appropriate tests, and that he properly discharged plainti fl. li.om thc cmergency department of ELIH on Septeniber 19, 2006. Dr. Mustalisli states that tlicre \\.:is iio indication froin plaintiff s history, coiiiplaints, or physical examination of a n infection in her right foot and. thus. thcrc MX no need to prescribe an antibiotic, obtain blood work or perform additional d i a p o s t i c testing o f plaintiff. He explains that plaintiff, upon examination, did not exhibit any e\idencc of crythema ( I-cclness),streaking, fever, or increased heart rate, which are the typical signs and syiiiptoms of ccllulitis. 111-.Mustalisli states that as plaintiff did not manifest any signs or symptoms ofcellulitis when 51-IC pi-csentcd to the cmergency department at ELIH, it was appropriate for Dr. Rennie to discharge hei1.1-oiii ilic ciiici-gency dcpartnient. and that Dr. Rennie s discharge instructions were specific and in ;ic.coid;iiicc \\,it11 p o d and acceptable medical care. Dr. Mustalish further states that \\.hen plaintiff piexmtcd to I cconic Hay Medical Center s emergency clepartment on Scptcmbcr 2 1, 2006, her clinical L o 1 ci i ti on h nd d r;i ni at i c: a I 1y c h an Sed since 1 e r present at i on at E L I H s em ergen cy de part men t on S ept em be 1 1 I O . 2006. r\/lor-co\.ci-. l>r. Mustalish states that plaintiff s right foot cellulitis and osteomyelitis did not ciiiisc [* 9] 1icr alleged iiciii.itis or neuromas. since neuromas occur spontaneously and have no relation to c l a i m t h a t shc 13i\.oi-cdone foot over the other. . . ._ plalntltt s 111 opposition to FLIH s prima facie showing 011 the issue of ELIH being negllgent 111 Its o\\ 11I Ight. a triable issue of tact. Indeed, plaiiitilTs expert s affiriiiation i;liled to lllege m y t i q x i i t u 1 c t i oil1 the qplicable medical standard of care by ELIIH s nursing staff that \\ oiild ha\ e pi oiiin,ttel> ccitised or contributed to any of plaintiff s alleged iiijuries (see Fliitiiigiitr Catskill Regioiicil Mcd. Ctr.. 0 5 4113d 5b3>884 NYS2d 13 1 [2d Dept 20091) Plaintiff failed to present any pioofto Iefutc the opinion o 1- LII 1 s cipei ts that its nursing staff did iiot commit any independent icts of negligence, 01f t o identit! in iction oi oiiiission coniniitted by any identitied employee of ELIH whlch caused plalntlff\ I I - I L I I (J\ C Y G [ I ~ ~ I I W v Brookrlde Hosp. Med. Ctr., 73 AD3d 1 124, 901 NYS2d 680 [2d Ikpt 30101, R i x o 1 Strrtcir /\. C t i i i : Hosj)., 29 AD3d 668, 815 NYS2d 162 [2d Dept 20061, Cliristopliersorr v Qureirs-Lotig /!. V l d . Groirp, P.C.. 17 AD3d 393, 792 NYS2d 608 [2d Dept 2005]). pl,iintitf lailed to i,iise 19 Hou,e~.ei-. \vith respect to tlie claim that ELIH may be vicariously liable for the actions of Dr. Reniiie, plaintit f correctly points out that there is an exception to the general rule regarding independent contractors when ;i person is treated in an emergency room of a defendant hospital. Hospitals may be held \.icariously 1 iable for the acts of independent physicians where the patient entered the hospital through an cnicrgency rooin and sought treatment from the hospital and not a particular physician (see Salvatore v Wiiitlirop Uiiiv. !Wed Ctr., 36 AD3d 887, 888 [2007];Moiiostoriv Mcirplzy, 34 AD3d 882, 883-884 [ 2006l; Johnson v Jamaica Hosp. Med. Ctr., 21 AD3d 881, 883 [2005];Torrisv Satnaritan Husp., supra at Yti7;Citroir v .Vortlierw Dutclzess Hosp., 198 AD2d 618, 620 [ 19931,lv denied 83 NY2d 753 [ 1994l;see also klcDoriuld 1 Ambassador Constr. Co., 273 AD2d 108, 109 [2000];Abidzam Dulit, 2 5 5 AD2d 345 v 11 998 ] ; R p t rv New York City Health & Hosys. Cory., 220 AD2d 734, 736 [ 19951). . Although geiierally ii hospital may not be held liable for the malpractice of a physician who is not an employee of tlie hospital (see, e . ~ .SIer1:iewski v Ciofli, 137 AD2d 186, 188- 189), a hospital inay be held vicariously liable for tlie . acts of independent physicians if the patient enters the hospital through tlie emergency room and seeks tixiatnicnt ti-om the hospital, not from a particular physician( Citron v Nortlierri Dutcliess Hosp. 198 A.D.2d 01 S. 00-3 N.\r .S.2d 639N.Y.A.D.,1993,citing Rldiiba v Benedictine Hosp., 52 AD2d 450, 453; Noble v I ortcr. 1 SS A112d 1066; Agiistiri v Beth Israel Hosp., 185 AD2d 203, 205-206; Soltis v State o j N e w York, 172 AD2d 9 19). I n th[e] line of cases [dealing with emergency room settings] \we have held that a hospital may be held vicariously liable for the acts of independent physicians if the patient enters the hospital through the emergency room and seeks treatment from the hospital, iiot from a particular physician (Kiiig Mitcliell 3 1 A.D.3d 958, 8 19 N.Y.S.2d 169NY,2006, citing Citroii v Nortlierii D,rrtclie.s.sHosp., 198 AD2d 6 18, 620 [ 19931,lv denied83 NY2d 753 [ 19941). Here, plaintiff alleges that she entei-ed the hospital through the emergency room seeking treatnient from the hospital and not from Di-. Iiciinic aiid t h u s adeq~iatcly raises an issue of fact in that regard. 17 M itli i u p c c t to the position of ELIH regarding the care and trcatmeiit rendered by Dr. R e n n i e to tlic plaintifl.:is i t applied to the standard of care rendered, as stated previously. the court finds t h a t the phiiitifl. has aclccluately opposed the motion and the statements made previously with regard to Dr. liciinic s niotion on the. issue of liability are adopted here. tlone\ ei the court tinds that. with respect to the I S S L I of causation as i t applies to the claim of ~ iiciii i t i i ,mcl iiciii o n i C t ~ , plaintiff has not adequately raiscd an issue of fact so as to defeat EL11 1 s tlic iiw t i o i i t h a t ,ucIi cianilages were not ca~isally related to thc alleged malpractice [* 10] \ L'L'o id i 11 1>, . : 1 ;iste i-11 Long Is 1and Ho s p ita 1' s nio t io n fo r s ti inmar y j udg men t d i s 111i s s i 11 p 1a i 11 i f f s y y t i v i i i p l a i t i t ayainst it is granted to the extent that any claims regarding liability based oil the a c t i o n s of i'iiiplo>'ccs of ELII-1 we dismissed as are any claims for damages arising from neuritis or ~ I L ' L I I ~ O I Iplainti t't ~X i h :illc'yeii t o Ira\ c' sustained. I t is othenvise denied. A A s o orcic'l~eti. > i J.S.C,' i * I * ~ FINAL DISPOSITION y' s i NON-FINAL D d O S l ' I ION

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