Rodriguez v Catapano

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Rodriguez v Catapano 2016 NY Slip Op 31867(U) August 19, 2016 Supreme Court, Suffolk County Docket Number: 38278-2010 Judge: William G. Ford 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] SI IORT FORM ORDER INDEX No. 38278-2010 CAL. No. 15-01360MM SUPREME G:OURT - STATE OF NEW YORK I.A.S. PART 38 - SUFFOLK COUNTY PRESENT: Hon. WILLIAM G. FORD Justice of the Supreme Court MOTION DATE MOTION DATE ADJ. DATE 12-17-15 (009) 12-9-15 (010) 4-20-16 Mot. Seq. #009 - MD #010 - MD -------------------------------------------------- ------------)( AMANDA RODRIGUEZ, Plaint ff, TED J. TANENBAUM, P.C. Attorney for Plaintiff 405 RXR Plaza Uniondale, New York 11556 - against MICHAEL CATAPANO, M.D., WAINSCOTT WALK-IN MEDIC PLLC, d/b/a WAINSCOTT WALK CLINIC, LARA A. DESANTI-SIS Individually and d/b/a BRIDGEHA FAMILY MEDICAL PRACTICE, SOUTHAMPTON HOSPITAL, and USTIN R. ZACK, M.D., SANTANGELO BENVENUTO & SLATTERY Attorney for Defendants Catapano & Wainscott 1800 Northern Blvd. Roslyn, New York I I 576 BARTLETT, McDONOUGH & MONAGHAN Attorney for Defendant Southampton Hosptial 320 Carleton Avenue, Suite 7500 Central Islip, New York 11722 Defen ants. -------------------------------------------------- ------------){ Upon the following papers numbered I t ...liQ__ read on these motions for summary judgment ; Notice of Motion/ Order to Show Cause and supporting papers 1-53 71- 128 · Notice of Cross Motion and supporting papers_; Answering ; Replying Affidavits and supporting papers 69-70; 145-146 ; Other_ Affidavits and supporting papers 54-68· 129-144 ;( · · · ) it is, ORDERED that the motion (seq. 0 9) ofdefendants Michael Catapano, M.D., and Wainscott WalkJn Medical Care, LLC, and the motion (se . 010) of defendant Southampton Hospital are consolidated for the purposes of this determination; and it s further ORDERED that the motion ofdefi ndants Michael Catapano, M.D., and Wainscott Walk-In Medical Care, LLC, for summary judgment dismis ing the complaint against them is DENIED; and it is further [* 2] Rodriguez v Catapano Index No. 10-38278 Page 2 ORDERED the motion of defen complaint against it is DENIED. t Southampton Hospital for summary judgment dismissing the Plaintiff commenced this action gainst defendants Michael Catapano, M.D., Wainscott Walk-In Medical Care, PLLC, Lara DeSanti-Sisk , M.D., Southampton Hospital, and Justin Zack, M.D., seeking damages for medical malpractice and for egligent hiring and supervision of medical staff. By her bill of particulars, plaintiffalleges, in part, that D . Catapano was negligent in failing to diagnose her ankle fracture. By stipulation, dated January 13, 2016, t e action was discontinued as against Dr. DeSanti-Siska. Defendants Michael Catapano and Wainscott Walk-In Medical Care, PLLC, now move for summary judgment dismissing the complaint agai~t them on the grounds that their treatment of plaintiff Amanda Rodriguez did not depart from accepted tdical practice, and that they were not a proximate cause of her injuries. In support of the motion, defend ts submit copies of the pleadings, the transcripts of the parties' deposition testimony, plaintiffs medical ecords and an affirmation by Dr. Philip Robbins. Plaintifftestified that she injured hyr left ankle while hanging a hammock and presented to Wainscott Walk-In Medical Care two days later, Apr 125, 2008. She testified that she was treated at Wainscott Walkln Medical Care by Dr. Catapano, who e amined her ankle and took an x-ray examination of it. Plaintiff testified that Dr. Catapano told her that sh . had a sprain and recommended that she wear an ankle brace and take Advil. She testified that over time h rankle pain became worse, and that on September 9, 2008 she sought treatment at Bridgehampton Fami y Medical Practice, where she was treated by Dr. Lara DesantiSiska. She testified that Dr. Siska examined her ankle and gave her a prescription for an x-ray examination, which was performed that same day at Southampton Hospital. Plaintiff testified that she presented to Dr. Siska's office on September 30, 2008, and that Dr. Siska told her th.e x-ray indicated she had an ankle sprain and recommended that she undergo physi al therapy and wear a heel lift. Plaintiff testified that she started physical therapy treatments but they were too painful, and that she returned to Dr. Siska on December 22, 2008. She testified that Dr. Siska recom ended that she have a magnetic resonance imaging test (MRI) performed, and that she prescribed Percos t for the pain. Plaintiff testified that she had the MRI on January 31, 2009, and that Dr. Siska told her the MRI examination indicated she had severe avascular necrosis (AVN). Dr. Siska referred her to Dr. Fede , an orthopedic surgeon, who began treating the AVN condition. Dr. Michael Catapano testified t at he is board certified in internal medicine and emergency medicine, and that he was working at Wai scott Walk-In Clinic on June 24, 2006, when plaintiff presented with a left-ankle injury. He testified that he examined the ankle and recommended that an x-ray test be conducted, but plaintiff did not wish to ha e one at that time. He testified that he prescribed Vicodin for the pain and Anaprox, an anti-inflammatory edication, and recommended that she return in a week to have an x-ray examination if she was sti II in pai . Dr. Catapano testified that he did not treat plaintiff again unti I April 25, 2008, when she presented with another left-ankle injury she allegedly sustained when she feJl while she was hanging a hammock. He tes ified an examination of her left ankle revealed she had full range of motion and was neurovascularly intact. He testified that he took two x-rays of the left ankle, which did not indicate a fracture of the talus bone or any other abnormalities. Dr. Catapano testified he assessed the ankle as being sprained, and recommende that plaintiff take Advil and use an ACE wrap and an air cast. [* 3] Rodriguez v Catapano Index No. 10-38278 Page 3 He testified that he normally recommends to patients to return in one week if they are not feeling better, and that plaintiff did not return. I Dr. Lara Desanti-Siska testified t at plaintiff presented to the office of Bridgehampton Family Medicine on September 9, 2008 with coryplaints of pain in her left ankle from an injury she bad in April 2008. She testified that she examined pla ntiffs left ankle, and that it was swollen. Dr. Siska testified that she referred plaintiff to Southampton ospital to have an x-ray test, and that she prescribed antiinflammatories and physical therapy treat ent. She testified that she received an x-ray report prepared by Dr. Justin Zack, a radiologist at Southam ton Hospital, which indicated that the ankle was normal. She testified that plaintiff presented again wit complaints of pain to her left ankle on December 22, 2008, and she ordered a Magnetic Resonance Imagel(MRI), which indicated that plaintiff had A VN and she referred her to Dr. Feder. Dr. Justin Zack testifie.d he is a r diologist and works for North Fork Radiology, which provides radiology services to Southampton Hospit{ll. He testified thathe reads various imaging studies and prepares reports through dictation which are then trtmscribed, put into written form, and are reviewed and signed by him electronically. Dr. Zack states that e reviewed three x-ray images of plaintiff's left ankle taken on September 9, 2008 from East Hampton C inic, and that he prepared a report. Dr. Zack testified that East Hampton Clinic is an outpatient imaging ffice that performs x-ray tests for patients on an outpatient basis at Southampton Hospital. He states that en he initially reviewed the pictures and prepared the report, he did not observe any abnormalities of the bones in plaintiffs left ankle, but upon a recent review he observed increased density in the talus. It is well settled that a party movi g for summary judgment must make a prima facie showing of entitlement to judgment as a matter of la tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hosp., 68 N 2d 320, 508 NYS2d 923 [1986]; Friends ofAnimals v Associated Fur Mfrs., 46 NY2d 1065, 10 7, 416 NYS2d 790 [ 1979]). The failure of the moving party to make a prima facie showing requires the enial of the motion regardless of the sufficiency of the opposing papers (see WinegradvNew York Univ. ed. Ctr. , 64 NY2d 851, 487 NYS2d 316 [1985]). The burden then shifts to the party opposing the mo ·on which must produce evidentiary proof in admissible form sufficient to require a trial of the material i sues of fact (Zuckerman v City ofNew York, 49 NY2d 557, 427 NYS2d 595 [1980]. The court's function s to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibili ; therefore, in determining the motion for summary judgment, the facts alleged by the opposing party an all inferences that may be drawn are to be accepted as true (see Roth v Barreto, 289 AD2d 557, 735 NY 2d 197 [2001); O'Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [1987]). To impose liability upon a phys· ian for medical malpractice, a plaintiff must prove that the physician deviated or departed from accep ed community standards of practice, and that such departure was a proximate cause of the plaintiffs injuri s (Senatore v Epstein, 128 AD3d 794, 9 NYS3d 362 [2d Dept 2015); Poter v Adams, 104 AD3d 925, 61 NYS2d 556 [2d Dept 2013]; Gillespie v New York Hosp. Quee11s, 96 AD3d 901 , 947 NYS2d 148 [2 Dept 2012]). To establish a prima facie showing of entitlement to summary judgment, a defendant physici n must establish through medical records and competent expert [* 4] Rodriguez v Catapano Index No. I 0-38278 Page 4 affidavits that the defendant did not devia e or depart from accepted medical practice in his or her treatment of the patient or that any departure was ot a proximate cause of plaintiffs injuries (see Lau v Wan, 93 AD3d 763, 940 NYS2d 662 [2d Dept 2012]; Castro v New York City Health & Hosps. Corp., 74 AD3d l 005, 903 NYS2d 152 [2d Dept 2002]). Furthermore, to satisfy its burden on a motion for summary judgment, defendant must address and re.but specific allegations of malpractice set forth in the plaintiffs bill of particulars (see Wall v Flus/ting osp. Med. Ctr., 78 AD3d l 043, 912 NYS2d 77 [2d Dept 2010]; Grant v Hudson Val. Hosp. Ctr., 55 AD3 874, 866 NYS2d 726 [2d Dept 2008]; Terranova v Finklea, 45 AD3d 572, 845 NYS2d 389 [2d Dept 20 7]). The affirmation of Dr. Philip Rob ins, a board certified orthopedist, is submitted. In his affirmation , Dr. Robbins states that he is familiar wit the evaluation, diagnosis and treatment of patients with A VN. He states that he has reviewed the medic records, the bill of particulars, and the transcripts of deposition testimony of plaintiff, Dr. Siska, Dr. Zack !md Dr. Catapano. Dr. Robbins describes AVN as a death of bone tissue caused by a lack of blood supply. e states that the cause of interrupted blood flow is unknown in approximately 25 per cent ofthe people w h AVN, and that it is referred to as idiopathic AVN. Dr. Robbins states that severe trauma such as ankle fra tures or dislocations can cause interrupted blood flow which can cause AVN. He states that excessive corti asteroid use and excessive alcohol use also are a cause of AVN. Dr. Robbins opines, with a reasonable de ee of medical certainty, that plaintiffs AVN is idiopathic. He states that he reviewed the x-ray pictures f plaintiffs ankle taken by Dr. Catapano on April 25, 2008 and avers that they are "technically good x-ray ,"which do not reveal any abnormalities of the talus bone or any bony fractures. He states that Dr. Cata ano's physical examination did not reveal any signs of any abnormality or a fracture, and opines, wi a reasonable degree of medical certainty, that Dr. Catapano's treatment was in accord with accepted me ical practice. Dr. Robbins states that the findings from the x-ray pictures taken in February 2009, which re ealed, among other things, a mild collapse ofthe talar dome, were not present on the x-ray picture taken n April 25, 2008. Furthermore, Dr. Robbins opines, with a reasonable degree of medical certainty, that Dr. Catapano's treatment was not a proximate cause of plaintiffs injuries. He states that even if an earlier diagnosis of A VN had been made, it would not have altered the outcome, as there are no good reatments for A VN. He opines that the condition typically runs its course resulting in articular surface co lapse. The submissions of Dr. Catapano nd Wainscott Walk-In Medical Care demonstrate, prima facie, that the treatment rendered to plaintiff o April 25, 2008 was in accord with good and accepted practice and was not a proximate cause of plainti s injuries. Having established, prima facie, their entitlement to judgment as a matter of law, by tendering sufficient evidence to eliminate any material issues of fact from the case (Alvarez v Prospect Hosp., 68 Y2d 320, 508 NYS2d 923), defendants shifted the burden to plaintiff to proffer evidence in admissible orm raising a triable issue of fact (see Zuckerman v City ofNew York, 49 NY2d 557, 427 NYS2d 595). I opposition to the motion, plaintiff submits, among other things, an affirmation by Dr. Javier Beltran, a radi logist, and an affirmation by Dr. Sheldon Simon, an orthopedist. Dr. Beltran states that he reviewed the x- y images taken by Dr. Catapano and opines, with a reasonable degree of medical certainty, that Dr. Cata ano departed from accepted medical practice by failing to take a third x-ray test of plaintiffs left anklet obtain an oblique/mortise view of the ankle. He opines that the lateral talar dome is obstructed in both x-r ys by the overlapping lateral malleoJus and, that, without a third view of the ankle, an accurate diagnosis could not be made. Dr. Beltran believes that the fracture and [* 5] Rodriguez v Catapano Index No. I 0-38278 Page 5 necrosis existed in April 2008 and were ot diagnosed due to the quality of the x-ray films and the lack of a third view through an x-ray test of the 1blique view. Dr. Sheldon Simon states that h is a board certified orthopedic surgeon and is familiar with diagnosing and treating A VN of the talus. Dr. Simon opines, with a reasonable degree of medical certainty, that Dr. Catapano' s diagnosis and treatme t of plaintiff departed from accepted medical practice. He states that the two x-rays taken by Dr. Catapan were of poor quality and were insufficient to permit a fair and reasonable diagnosis of plaintiffs condi ti n. Dr. Simon opines that if plaintiffs condition was diagnosed in April 2008, her treatment could have b gan sooner and she would not have needed the several surgeries she endured. The affirmations of plaintiffs exP,erts are sufficient to raise triable issues of fact as to whether Dr. Catapano breached the duty of care owe to plaintiff by departing from acceptable medical practice and whether such departure was a cause of plai tiffs injuries. In a medical malpractice action, conflicting expert opinions require denial of a summary jud ent motion (Leto v Feld, 131AD3d590, 15 NYS3d 208 [2d Dept 2015]). Such issues of credibility ar properly determined by the trier of fact (Wexelbaum v Jean , 80 AD3d 756, 915 NYS2d 161 [2d Dept 2011]). Accordingly, the motion of Dr. Catapano and Wainscott Walk-In Medical Care for summary judg ent in their favor is denied. Defendant Southampton Hospita grounds that it cannot be vicariously liabl are not employees of the hospital, that it w from acceptable medical practice in its tre In support of the motion, the hospital s deposition testimony, plaintiffs medical a copy of the agreement made between S moves for summary dismissing the complaint against it on the for the conduct of Dr. Catapano, Dr. Siska or Dr. Zack, as they snot negligent in hiring Dr. Zack, and that its staff did not depart tment of plaintiff and was not a proximate cause of her injuries. bmits copies of the pleadings, the transcripts of the parties' cords, an expert affidavit, an affidavit by Sharon DiSunno, and uthampton Hospital and Southampton Radiology. A hospital owes a duty ofreasonall e care to its patients in hiring and supervising its employees and generally complies with such duty where here is evidence that it conformed to the acceptable standard of care customarily used by general hospitals see Salvia v. St. Catherine ofSienna Med. Ctr., 84 AD3d l 053, 923 NYS2d 856 [2d Dept 2011 ]). "The re uisite elements of proof in a medical malpractice are a deviation or departure from accepted community st <lards of practice, and evidence that such deviation or departure was a proximate cause of injury or damag "(Paone v Lattarulo, 123 AD3d 683, 683, 997 NYS2d 694 [2d Dept 2014]). Therefore, to establish m di cal malpractice by a hospital through its employees, expert medical testimony must be offered to dem nstrate that a staff physician, resident, intern, nurse, technician, or other professional employee violated s me accepted standard of good professional practice (see Bailey v Brookdale Univ. Hosp. & Med. Ctr., 9 AD3d 545, 949 NYS 2d 714 [2d Dept 2012]). Hospitals are vicariously liable for he acts of their employees and may be vicariously liable for the malpractice of a physician, nurse, or oth health care professional that it employs under the doctrine of respondeat superior (see Hill v St Clare's osp. , 67 NY2d 72, 499 NYS2d 904 [1986]; Bing v Tlmnig, 2 NY2d 656, 163 NYS2d 3 [1957]; Seiden v Sonstein, 127 AD3d 1158, 7 NYS3d 565 [2d Dept 2015]). Generally, a hospital is not vicariously lia le for the malpractice of a physician who is not employed by the [* 6] Rodriguez v Catapano Index No. 10-38278 Page 6 hospital. However, "an exception to the eneral rule exists where a patient comes to the emergency room seeking treatment from the hospital and n~t from a particular physician of the patient' s choosing" (Smolian v Port Auth. of N. Y. & N.J. , 128 AD3d 96, 801, 9 NYS3d 329, 334 [2d Dept 2015]). Under a theory of apparent or ostensible agency, a hospital ay be vicariously liable for the malpractice of a physician, who is not an employee of the hospital, if a p tient reasonably believes that the physicians treating him or her were provided by the hospital or acted o behalf of the hospital (Hilsdorf v Tsioulias, 132 AD3d 727, 17 NYS3d 655 (2d Dept 2015]; Loaiza v L 107 AD3d 951 , 968 NYS2d 548 [2d Dept 2013]). ln , To establish a prima facie showin ofentitlement to summary judgment, a defendant hospital must establish through medical records and c mpetent expert affidavits that the defendant did not deviate or depart from accepted medical practice in he defendant's treatment of the patient or that any departure was not a proximate cause of plaintiffs inj ies (see Lau v Wan, 93 AD3d 763, 940 NYS2d 662 [2d Dept 2012] ; Castro vNew York City Health & osps. Corp., 74 AD3d 1005, 903 NYS2d 152 [2dDept2002]). Furthermore, to satisfy its burden on a m tion for summary judgment, a defendant must address and rebut the specific allegations of malpractice se forth in the plaintiffs bill of particulars (see Wall v Flushing Hosp. Med. Ctr., 78 AD3d 1043, 912 N S2d 77 [2d Dept 2010]; Gra11t v Hudso11 Val. Hosp. Ctr., 55 AD3d 874, 866 NYS2d 726 [2d Dept 200 ]; Terranova v Finklea, 45 A03d 572, 845 NYS2d 389 [2d Dept 2007]). The affirmation of James Naidi h, M.D., a board certified radiologist is submitted. In his affirmation, Dr. Naid ich enumerates the r cords he relied on to form his opinion, including the x-ray films taken on September 9, 2008. Dr. Naidich states that Dr. Siska ordered two x-ray pictures of plaintiffs left ankle, and that plaintiff arrived at the rad ology department located in Southampton Hospital where three x-ray images of her left ankle were take by a technician. Dr. Naidich reviewed the x-ray pictures of plaintiffs ankle, and opines that the qua! of the images are excellent, and that the radiology technician obtained three views of plaintiffs ankJe i accordance with the "best radiological practice." He states that no one at the radiology facility provided an information concerning the results ofthe x-ray examination and the results were interpreted and reported b Dr. Zack who never met with plaintiff. Dr. Naidich opines, with a reasonable degree ofmedical certainty, t at the services rendered to plaintiff by the hospital were in accord with accepted medical practice and were ot a proximate cause of plaintiffs injuries. Sharon DiSunno, Vice President o the Quality Assurance Program for Southampton Hospital, states in her affidavit that Southampton Hospi 1 does not employ radiologists to interpret diagnostic studies performed at the hospital. She states at Southampton Hospital has a contract with Southampton Radiology, P.C., which provides such ser rices through their employees, including Dr. Zack, and that the contract was in effect in September 2008. iSunno states that patients are billed by Southampton Radiology and are informed of this through signs posed in the radiology suite at East Hampton Clinic. She states that the hospital only bills patients for the tee ical services provided. The complaint alleges that the alle ed acts of negligence by Southampton Hospital occurred on September 9, 2008. Plaintiff alleges, amo g other things, that the hospital staff was negligent in its care and treatment of her, and that it was neglige in failing to order further diagnostic testing and in failing to monitor her condition. The complaint fu her alleges that Dr. Zack is an employee of the hospital and, [* 7] Rodriguez v Catapano Index No. 10-38278 Page 7 therefore, the hospital is vicariously liabl for his conduct. The complaint also contains a cause of action against Southampton Hospital for neglig nt hiring and supervision. The evidence submitted by Southampton Hospital establishes prima facie its entitlement to judgment as a matter oflaw, as it demonstrates that Dr. Zack was not an employee of the hospital, and the record is devoid of any evidence of independent act ofnegligence by the technician who took the x-ray examinations. In opposition to the hospital's motion, plaintiff submits, among other things, her own affidavit and the radiology report. The report is in thef'ame of Southampton Hospital with its address of 240 Meeting House Lane and it is electronically signe by Dr. Zack. In plaintiffs affidavit, she states that she made an appointment with Southampton Hospital o have the x-ray tests performed and presented to Southampton Hospital to have them taken. Plaintiff's s bmissions raise triable issues of fact with respect to the issue of apparent or ostensible authority which ma impose liability on the hospital for the conduct of Dr. Zack (See Sullivan v Sirop, 74 AD3d 1326, 905 NYS2d 240 [2d Dept 201 O]). Accordingly, the motion of Southampton Hospital for summary judg ent dismissing the complaint against it is DENIED. Dated: August 19, 20 16 Riverhead, New York r:t.0lli1~ HON. WILLIAM G. FORD, JSC FINAL DISPO ITION X NON-FfNAL DISPOSITION

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