Spiller v Winthrop Univ. Hosp.

[*1] Spiller v Winthrop Univ. Hosp. 2018 NY Slip Op 28038 Decided on February 2, 2018 Supreme Court, Nassau County Brandveen, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on February 2, 2018
Supreme Court, Nassau County

Mava Spiller, as Executrix of the Estate of LORETTA CONROY and MAVA SPILLER, as Executrix of the Estate of JAMES CONROY, Plaintiff,

against

Winthrop University Hospital, ELLLIOT ROW, M.D., BAGHDADASSARIAN BAGDIG, M.D., DR. LORI KATINAS, DR. TIMOTHY LOPEZ, NORTH SHORE UNIVERSITY HOSPITAL CENTER FOR EXTENDED CARE AND REHABILITATION, NORTH SHORE UNIVERSITY HOSPITAL STERN FAMILY CENTER FOR EXTENDED CARE AND REHABILITATION, NORTH SHORE-LIJ STERN FAMILY CENTER FOR REHABILITATION and NORTH SHORE-LONG ISLAND JEWISH HEALTH SYSTEMS, INC., Defendant.



602415/12



PLAINTIFF by

Ronemus & Vilensky

112 Madison Avenue, 2nd Floor

New York, N.Y. 10016

212-779-7070

DEFENDANTS WINTHROP UNIVERSITY HOSPITAL AND ELLIOT ROW, M.D. by

KERLEY, WALSH, MATERA & CINQUEMANI

2177 Jackson Avenue

Seaford, N.Y. 11783

516-409-6200

DEFENDANT BAGHDASARIAN BAGDID, M.D. by

FUREY, FUREY, LEVERAGE, MANZZIONE, WILLIAMS & DARLINGTON, P.C.

600 FRONT STREET HEMPSTEAD, N.Y.11550

516-538-2500

DEFENDANTS NORTH SHORE UNIVERSITY HOSPITAL CENTER FOR EXTENDED CARE AND REHABILITATION, NORTH SHORE UNIVERSITY HOSPITAL STERN FAMILY CENTER FOR EXTENDED CARE AND REHABILITATION, AND NORTH SHORE-LONG ISLAND JEWISH HEALTH SYSTEMS, INC. by

MARTIN CLEARWATER AND BELL

90 Merrick Avenue, Suite 401,

EAST MEADOW, NY 11554

516-222-8500
Antonio I. Brandveen, J.

The following papers having been read on this motion:

Notice of Motion, Affidavits, & Exhibits 1, 2, 3

Answering Affidavits

Replying Affidavits

Briefs: Plaintiff's / Petitioner's

Defendant's / Respondent's

Upon the foregoing papers, the motion (sequence number 002) by defendants North Shore University Hospital Center for Extended Care and Rehabilitation et al ("North Shore"), the motion (sequence 003) by defendants Winthrop University Hospital and Elliot Row, M.D., and the motion (sequence number 004) by defendant Baghdassarian Bagdig, M.D. for an order pursuant to CPLR 3212, dismissing the complaint against the defendants and granting summary judgment in their favor, are consolidated for disposition and decided as follows:

This is an action to recover damages for the personal injuries sustained by decedent Loretta Conroy as a result of the purported medical malpractice committed by the defendants for their collective and individual failure to properly and timely diagnose and treat the decedent. The departures from good and accepted medical practice claimed by the plaintiff were set in motion when the decedent tripped at home over her husband's oxygen tube and was brought to defendant Winthrop University Hospital on July 31, 2012, complaining of left hip pain. The decedent was admitted on August 1 and diagnosed with abrasions, ecchymosis, and a left hip dislocation; a closed reduction of the decedent's left leg was subsequently performed by defendant Dr. Row, and her lower left leg was placed in an immobilizer. Plaintiff claims that the decedent was given morphine for the extreme pain she felt, and that prior to her discharge on August 4th to defendant North Shore Stern Family Center for Extended Care and Rehabilitation ("Stern"), decedent's skin was not protected in the immobilizer, and that no skin treatments for that area were ordered, administered or performed. Upon admission to Stern, the decedent [*2]allegedly had blisters on the back of the left knee; the immobilizer was purportedly not removed or adjusted or padding placed on the skin. On August 6, the decedent suffered from left lower extremeity burning, edema and open blisters on the calf, and after her condition worsened, she was transferred to the emergency department of defendant North Shore University Hospital and admitted into the hospital with left leg cellulitis, where she remained until August 22 when she was discharged back to Stern. The discharge summary stated that the decedent's brace was "ill fitting and caused skin breakdown and she developed a cellutis of the lower extremity." The decedent was discharged from Stern on October 16.

The principles of law which this Court must apply to the motions at bar for summary judgment in favor of a defendant in a medical malpractice action remain the oft-cited burden shifting analysis most recently reiterated by the Court of Appeals in Pullman v. Silverman, 28 NY3d 1060, at 1062:

"It is well settled that 'the 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 demonstrate the absence of any material issues of fact' (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make such prima facie 'showing requires denial of the motion, regardless of the sufficiency of the opposing papers'(Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]). Establishing entitlement to summary judgment as a matter of law requires the defendant to 'rebut with factual proof plaintiff's claim of malpractice' (Alvarez, 68 NY2d at 325). '[B]are conclusory assertions... with no factual relationship to the alleged injury' are insufficient to 'establish that the cause of action has no merit so as to entitle defendant to ummary judgment' (Winegrad, 64 NY2d at 853)"(Pullman v. Silverman, 28 NY3d 1060, 1062).

In his concurring opinion in Pullman, Judge Fahey noted that there is a "split" among the Departments of the Appellate Divisions over "the standard governing the shifting of burden in a medical malpractice summary judgment motion" (Pullman v. Silverman, 28 NY3d 1060, 1063 [concurring op, Fahey]) that was not resolved by the majority in Pullman. The jurisprudence in the First, Third and Fourth Departments is exemplified by the First Department's decision in Pullman: "[a] defendant in a medical malpractice action establishes prima facie entitlement to summary judgment when he establishes that in treating plaintiff he did not depart from good and accepted medical practice or that such departure did not proximately cause plaintiff's injuries. Once a defendant doctor meets that burden, plaintiff must rebut by showing with medical evidence that defendant departed from accepted medical practice and that such departure was a proximate cause of the injuries alleged [citation omitted][emphasis added]" (Pullman v. Silverman, 125 AD3d 562). In contrast to the burden placed on the plaintiff in those Departments to prove both a departure and that the departure was a proximate cause of the plaintiff's injury, the Second Department has held "since 2011 that if 'a defendant physician, in support of a motion for summary judgment, demonstrates only that he or she did not depart from the relevant standard of care, there is no requirement that the plaintiff address the element of proximate cause in addition to the element of departure' (Stukas v. Streiter, 83 AD3d 18, 24-25 [citations omitted][emphasis added]" (Pullman v. Silverman, 28 NY3d 1060, 1063 [concurring op, Fahey]). Thus, "only if the defendant meets the prima facie burden of proof as to the lack of deviation from the standard of care orthe absence of proximate cause, or both, does the burden shift to the plaintiff to raise a triable issue of fact in opposition [citations omitted][emphasis added]. As discussed in Stukas v. Streiter, 'there is no good reason to require the opposing party to rebut or address any element or theory other than that raised by the moving party' (Stukas v. [*3]Streiter, 83 AD3d at 26)" (Bongiovanni v. Cavagnuolo, 138 AD3d 12, 17).

Regardless of whether the Court of Appeals' standard or the Second Department's less burdensome standard is applied to the motions at bar, this Court finds that each of the moving defendants failed to make a prima facie showing of entitlement to judgment as a matter of law by failing to tender sufficient evidence eliminating material issues of fact (see, Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; see also Pullman v. Silverman, 28 NY3d 1060,1063; Ortiz v. Chendrasekhar, 154 AD3d 867, 869; Barlev v. Bethpage Physical Therapy Assoc., P.C., 122 AD3d 784).The defendant' expert's ultimate assertions are speculative (e.g., Dr. Tyler -"[t]he etiology of the blistering of [the decendent's] skin is speculative at best," and Dr. Axelrod -"[t]here are many causes of blistering"), and cannot be given probative weight in support of their motions (see, Diaz v. New York Downtown Hosp., 99 NY2d 542, 544). Even assuming arguendo that the moving defendants established prima facie their entitlement to judgment in their favor as a matter of law, the plaintiff raised inter alia a triable issue of fact, through her expert's sworn opinion, as to whether the defendant's departed from good and acceptable medical practice by failing to properly treat the decedent during the time within which the decedent was in their care, and if so, whether such departure was a proximate cause of plaintiff's injuries (see, Reustle v. Petraco, 155 AD3d 658, 660; Gray v. Wykoff Hgts. Med Ctr., 155 AD3d 616, 618). Moreover, "conflicting expert opinions raise credibility issues which are to be resolved by the factfinder" or factfinders (see, Stucchio v. Bikvan, 155 AD3d 666, 667).

Accordingly, the three motions by the defendants for an order granting summary judgment in their favor are denied.

The parties shall proceed to trial as scheduled on February 15, 2018.

The foregoing constitutes the decision and order of this Court.

So ordered.

Dated: February 2, 2018

E N T E R:

______________________________

J. S. C.