Pierre-Canel v Eye Surgery & Aesthetics, P.C.

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Pierre-Canel v Eye Surgery & Aesthetics, P.C. 2018 NY Slip Op 31857(U) June 21, 2018 Supreme Court, Kings County Docket Number: 511200/2015 Judge: Gloria M. Dabiri Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*[FlLED: KINGS COUNTY CLERK 07/16/2018] 1] --.,""f',-.-.-"'C --~ ........ .. ~~--- NYSCEF DOC. NO. 129 --~. - - - - -- INDEX NO. 511200/2015 RECEIVED NYSCEF: 08/03/2018 --' At an IAS Tenn. Part 2 of the Supreme Court of the State -0f New York, held in and_ for the County- of Kings, at the Courthouse, at Civic Center, Brooklyn1 .New YQrk, on the_ 2-1 st :day of June, 2018 .. · PRJiSENT: HON. 0-LORIA-M. DABIRI, Jilstice. - - - - - - .:. _.,_ - - - - -.- - - - - . ; - - - - - - ""' - - - -· ·- - - -:X KEt'rELIE PIERRE..CANEL.: DECISJON AND ORDER --YndexNo. 51 l200/2.0l5 Plaintiff,. ' Mqt. Seq. No. 3 - againstEYE SURGERY &:AESTI-IETIC.:S:. NATALl~BORODOl<ER, h.1.D., P.C:., an_d . Defenaan:~. - - - - .- - - ~ -.-_ - - - - - - .- - - - - - - - ·- -- - - - - • - • - .-X EYE:S1,JRGE.RY & AESTHETICS, P.C. and NATALIE BORODOkER, M.D.; Third-Pam Plaintiffs, - agalnst- N.Y.C. HEALTH" AND}ibSPITALS·CORPORATION,, lCJNOSCOUNTYHOStJITAL CENTER, JrNLI Liu, M.D., AND TwISHA OZA~ M.D., Third-Party Defendants·. _-.. . - - - -- - '" - -- - - --- ---.-- - - - - - - - - - - - - - - - - -X Tbe"following papers numbered5D-75 read herein: NYSCEF ·nocuments Notjce of MotioMOrdi:er to, Show Cause/ Petition!Cross Motion artd; Affidavi~ (Affirmations) Annexed_-_ _ _ _ _ _ __ Opposing AffidaVits (Affirmations)-------·Reply Affidavits (Affirmations)_·_ _ _ _ _ _ __ Sur-Reply (Affirniation)-'--.___ _ _ _ _ _ _ __ -Other Papers- _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ l 1 of 18 94-114 121-122 123 [*[FlLED: KINGS COUNTY CLERK 07/16/2018] 2] INDEX NO. 511200/2015 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 08/03/2018 Upon tbe foregojng pape~: cJefendants/third-party plaintiffs Bye Surgery & . Aesthetics,.·P.C. and Natalie B'orodoker~ M.D. seek an order, pursuant to CPLR "3212, (1)."·gi-anting-summary judgment in their favor,_ (2) directing the County Clerk to enterjudgment in their favor, (3) amending the cap ti on t(} delete_ their names and (4) granting such other and further.telie.f...as the C.out1 may deem just ahd proper (MS #3). BACKGROUND, On September 2'5.: 2011, plaintiff pr~ented to Eye Surgery & Aesthetics, P. C. ('-'the P, C. "').as a new .patient, compli;iining .of scr(;ltching and tearing_ of her left ~ye \\f ith ye1low·discharge. She. discio·seq. that she had injured her ieft ·eye with her finger appro.xir:na~ely:&even inciude~ years prior, and was treated with eye dro_ps. Her medical history' inter alia,.: type 2 diabetes; hypertension)_ -anemia and allergies·. On .physical- examinatfon, ...Dr. B'orodoker·noted that plaintiff had a dis-coloration ofthe white ofher left-eye and a.·symbl¢pharqn 1, wit_h thick.scar_ tissue ·and pigment -She.recommen.de<l that plaintifrs sy'mblepharon be.temoved in stages and that a specimen be sent for a biopsy to ruJe:out cancer in. the left-eye. To allow tirne:for p1aintiff·to get her. diabetes. under control and ·obtain medical clearance from her primary care physician, .Sharnieen :Sultana, M,D., the removal and-biopsy werc;.s9heduled for0ctober4,_2013. However. ' - . ' the . pro~edure was cancelled bec~µse the plaintiff failed to timely obtain pre-operative .deara:nce. Following this cancellation,_ plaintiff was scheduied for a February 11 2014 ·1 Adhesion ofthe eyelid. to the· eyebaH. 2 of 18 J ,. [*[FILED: KINGS COUNTY CLERK 07/16/2018] 3] INDEX NO. 511200/2015 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 08/03/2018 follow-up visit with Dr. Borodoker,_. However, plaintiff failed to keep the February 1, 2_014 appoinanent. Thepiaintiffretu~ed to Pr. Borodoke'r on June 19, 201.4,_c.otnpiaining_Qfitchy, ,. red.irritated artd tearing_ eyes With swelling. -Dt Botodoker rtoted that these symptoms were consistent wlth allergies. Dr. Borodoker again recommended removal of the symblepbaron with biopsy, ·after the plaintiff re;c_eJve_d Pl~intlff s_1,1~sfuHy o_b~ain_ed cl~arance pi;e~operative clearance. from her: hematologist, Dr. Gardith Jose~h, on August 18, 2014. This was confirmed by Dr. Sultana, her primary care _physician,. ~ ,1 on August 19, 2014. Plaintiff then returned to Dr. Botodoker on August29-, 2014 for-· a pre-pperatjve appointmen_t. Thepla:intiffpr~se.nted with the same complaints made_ather June appointment. The symblepharon removal a·nd biopsy.proce.dure were scheduled for September l9, .2014 at the Brooklyn-Eye.Surgel')' center; However~ plainttff-cance11ed the procedure. Dr. BorQ.doker1s surgical_· coordinatQr called the pl~intiffand asked. her to return to.the . office on September 22, 2014 for a follow.:..up visit. Plaintiff did not show for ,this foUow,.up appointment, -and_ it ·was rescheduled ·for October 10~ 2014-. Pl~intiff cancelled that appointmertt, which was rescheduied for October 18·, 2014. On October: 18 the plaintiff presen~d with complaints of a three- to slX;-week history of.increased swelling of herJ~ft eye. Dr. Borodoker's diagnosis was cellulitis, ·., with chiila:zian2-like -struotUres and he prescribed an-antibiotic. Plaintiff refutned to.Dr. ·, 2 A lump in the ·µpper:or towe_r eyelid-which could be infectious_ or inflammatory. 3 of 18 ............... ..... INDEX NO. 511200/2015 ;.-...........,...·....-~- [*[FILED: KINGS COUNTY CLERK 07/16/2018] 4] . NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 08/03/2018 B:orodoker on October 22, 2014 for foJlow~up and reported 'that she felt so:l'ne im,prov~ment. At ~hat visit, Dr. :aQr.o.dok~r. 4r{iined fluid .from plaintiff's left eye and di$charged her with irtstructtons to ·Continue using the antibiotic and· to ·return in two days:. Plaintiff returned on October 24, 2014, with complaints of persistent eye swelling despite. her continued use of eye drops and ·antibiotics" Dr. Borodoker observed. ¢.at.plaintiff's co,ndition w~ worsening,; drained pus from her left eye~ and referred her to N~w York Eye & Ear·Infirmary (1'the lnfirmary'') for urgent treatm1mt and evaluation. Plaintiff.did not go immediately to the Infirmary·as jnstructed. On October ;27, 2014, Dr. Borodoker telephoned the plaintiff an4 learned. that she .h~d .n.ot gone to the Infirmary's Emergency Room. Dr. B9rodoker iilfortned the plaintiff, "1 both the ·Oc_tober 27~ 2014 telephone· conversation and during a .second telephone conversation on or about Ocfober28, 2.014, -that ·her condition was ·serious. and that she· urgently need.ed t(eiitment. Wh~n deppsed, the plaintiff testified tha~.Dr. Botodo~erha:d advised her.thather·conditioh could be Hfe~threatenihg .. Dr. Botodoker did. not see the plaintiff again. On Ocfober 28, 2014 1 the plaintiff was seen at the emergency room at Kings County Hospital (°KCH"), .q.ompJaini.Jig of swening in her left .eye. The treating p~ysician diagnosed her with 9rbital cellulitis 1 and obtained an ophthalmology consultation. ·The ophthairnologist, Dr~ Eitam Burstein, observed swelling in the plaintiffs left upper and.lower eye lids~ a.subcutane.ou.s. mass and an. active .dischar~e. Dr. ·aurstein planned to drain the·abscess, but.the plaintiff rei\1$ed the procedure, 4 of 18 She -~ [*[FILED~ KINGS COUNTY CLERK 07/16/2018] 5] _._._.. - ~..,..:f.-(- - . . . . . · NYSCEF DOC. NO. 129 INDEX NO. 511200/2015 RECEIVED NYSCEF: 08/03/2018 was instead given a. prescription for antibiotics and instructed to return to the :Kings Count)' l!ospital ophthalmol{Jgy ¢l_iniQ.the following day. On her October 29, 2014 ·ophth_alrnofogy visit.. Dr; Burstein :again noted swe1ling,_ a subcutaneous mass in her eyelid and diacharge. Biopsies .revealed a squamous papilloma~3 On a November 5, 2014 fo1low~up appo1ntment, Dr; Burstein noted serious inflammation .and schedqled plaintiff for_ an operation to remove the eyelid mass._on November 12., 2014. Plaihtiff <Jid not receive pr({·operative cle~rance until Novemb_er 6, 2014. However, when she ptesenteci to KCH on No.vembet 12~ 2014, -she ®mplained of chest pain1 the e~e operation was'. cancelled and she was referred to the enu~igency room. The phliritiff was discharged following an EKG whieh revealed· normal results. ·she did-not return ,o.KCH. Wheu deposed·,_ plaintiff.conceded that a KCH physician had advi:;;ed her that she could have cancer. . -On December 12~ 2014, the piaintiff visited her primary: -care physician, D.r. Sultana~ who .noted that plaintiff was suffering ft-0m left eye_ pain_ and swel lin~ that .eye irorgety ·was oil hold because of plaintiff's elevated blood.sugar, and· that the plaintiffwas non-compliant with .h¢r niedic~tions. Dr, Sul tan a referred 'the .plaintiff to Dr.Jerry Weinberg, art ophthalmologist,- -Who saw plaintiff on December 23~,2.014 and referred h~r to ·or. Brian Herschom, ·who saw her on Decemher 11,_ 2014~ Dr. Hersohom .ob.se.rVed_ massive: enlargement of plaintiff's left eyelid wifu .. closure, andtestrictive movement:S -of-he.t exttaocular mu8cles. His impression was ·a malignant A benign- tum·or (Mec1Scape1 https://emedicine.me(i5cape.com/article/ll92(>1~..0".'erview [J~i.visited May 21,2018]). 3 --' s 5 of 18 -----.'WP':'""~- [*[FILED: KINGS COUNTY CLERK 07/16/2018] 6] NYSCEF DOC. NO. 129 INDEX NO. 511200/2015 RECEIVED NYSCEF: 08/03/2018 ,~ tumor of plaintiffs left orbital bone~ ~-..----~- He_ i:e~ommended a CT scan, which was performed on Jartucµ;y 13, 2015 ancl revealed q.n· aggre$sivc fonn of lymphoma· 0;I14 advanced conjunctival rrtelanotna. The plaintiffnext visited Dr. Herschom on January 16~ -2015 1 at which time-he infarmed ·her that she had cancer and that her Ieft eye had ta be ·removed to prevent the cancer from spreading to her other eye. His plan ·was to perform the ·operation on February 9, 20_15. However, on January 26, 20 1S, the plainti ffpi:esented to Dt. Sultana for a pre-operative clearance and could not receive· clearance due to her elevated.blood sugar levels~ The plaintiff had a follow-up a-ppointm~t with Dr·. Hetsohorn on March 16, 2015 but missed the.·.appaintm·ent. After several foilow-up calls from Dr. Hetschom~s office, she returned for a: fallow-up visit on April 28., -2015. At thattime Dt; Herschorn noted a. history of eye cancer in plaintiff's left.eye, as diagnosed four months earlier, a,nd perfotrQe.d another ~iopsy. On May 1, 2015, Dr. Herschom advised the plaintiff of the:pathology results and referred. her to a physici(l]l at Memorial -Sloan Kettering Cancer Center· ("Sloan Ketterin~') for- further· treatment; which he co-managed. PJaintiffwas admitted to Sloan Kettering. from May'26, 1015 through June 5, 201.5, during wlµch tim.e she uhd~ent surgery tQ 1'.Cmove. her left eye an~ surrounding _structures. Pathology testing nftfre removed·specimens disclosed that the plaiittiffhad -art- invasiVe, moderately diffetentfated, squamous- cell ·carcinoma· an sing from her left orbit and-mea,suring_ five c~ntimeters. in.its greatest dimension. the malignant tumor ~I had invaded her skin,_ subcU:taneous soft tissue, skeletal musCle a,nd periorbita1 soft ., 6 of 18 [*[FILED: KINGS COUNTY CLERK 07/16/2018] 7] INDEX NO. 511200/2015 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 08/03/2018 tissue. There was eiiidence ofsquamous ce11 cancer in two.of the eight-removed lymph nodes,_ .. I as well ·as evi~e.nce· ofme~(atic ~qµam.ous cell cy.tqip.oma in one o;f th~ thre.e intraparotid iymph nodes. Thereafter, plaintiffunderwentradiatian and chemo.therapy at Sloan Kett.edng Me;dical Center. n;e· plaii1.tiffc·01mnenced this action on September 11, 2015 alleging medical malpractice and lack of informed GOnsep.t~ Her BllJ. of P.l\rt.iculars alleges, ·inter aUa~ that the defendants were neg1igentiri failing to d_iagnos.e pla:intiff-s ocular cancer. The defendant$ joined issue on September 29,. 20 l 5. On February 3, :2017, the defendants, tiled ·a third-party ~ompJaint seeking indemnification and contribution by the N.Y,C. Health and Ho$pitals Corporatiop, .Kings. County Ho~pi tal Center, Jinl i Liu, M .D ·~.and '' ) THE PAR'J'IES, CONTENTlONS Motwn of Dr. Bor.odoker. q~d Eye Surgery & Aesthetic$, P.C. In support of their motion, the :defendantS· ·rely upon the· affirmation of Dr. Norina.n. Medow, a Board Certified ophthalmologist D_r. Medow ayers that. he revic;;w~ the Bills of P~rticulars, the. parties' deposition testimony and the piaintiff'~ medical records. H¢ opj'n~ th~ between September 25~ j on. e.ach of the· pati.ent'·s visits with Dr. Borodoker 2013 and' Octpb.er 24, .2014, Dr. Sorodoker performed appropriate·examiilatiuns and property recommended the'removafofthe symblepharon ·at1d biopsy, ·uµ:_der 4n~thes.ii!. pem;ling pre-operative clearance. Accordingly, he '~ 7. 7 of 18 --INDEX NO. 511200/2015 [*[FILED: KINGS COUNTY CLERK 07/16/2018] 8] NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 08/03/2018 ·oaric'ludes that the ~e provided by Dt,_ Borod()ker and the P..C. w~s w.itb,in acc·epted . ' \ :.~ndards of medk:al practice ~d was no~ the proximate cause of plaintiff's injuries. . aased upon his review of plaintifrs medical records, Dr. Medow addre·sses certain n:iedica! tr~tm~nt plaintiff received prior to.her tre_atnnmt·with Dr•. B.orodoker . .As -early as March of 2009, Dr. Adolphus Artosike, an optometrist, recorded that ·plaintiff had a pigment on her left low~r eyelid and complained of blurry vision in that eye; On August 3~ 2009,, February 22,. 2010, .artd April :·26,. 2010,: Dr. Anosike noted pigment and an ulceration in plaintiffs left lower lid. He referred plaintiff to Dr. .M~cha¢l E~eriha~,. wh9 rec~mmen~d on $everal 6cca.si.ons 4 th1;1t ~ bi9psy be perfotmed. However, the plaintiff declined to uhdergo ¢I)e. -treating with bt. Ehrenhaus When the ·plaintiffstopped she-returned to Dr. Anosike who also- recommended a biopsy. However, the plaintiff continued to refuse one and was seen ag.ain by Dr; Ano'sik,~ ·on December 23, 2012, and April ~2, 2013, but continued to ·refuse. surgery ora biopsy. Dr. Mcdow optnes. that Or. Borodoker's treatment was rtot a prdximate cause of the·plaintiff'.s.Jnjuries because the.plaintiffs condition.could.have been diagnosed and .., treated as early as 2010 if she had followed the a4viee of the physic_ians who treated her prior to Dr. Borqdoker·. Her'failur~ .to follow their advice allowed her eye cancer to grow and metastasize. 4 The exact dates of Dr. Ehrenhaus;s treatment are Unknown because his records were allegedly d(:stroyed .in,.a fire. H;owever~.plaintifrs c)eposifron.t.t;stimony is consistent with Or..Anosike;s ..records-reflecting the treatment rendered by Dr. EhrenhaU$. 8 8 of 18 ---. ..-....- - __ ..... [*[FILED: KINGS COUNTY CLERK 07/16/2018] 9] .... a q e< •w.- • · INDEX NO. 511200/2015 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 08/03/2018 Dr: Medow1\irtber opines that dqring plaintitrs;first visit to Or. Borodoker -on S~ptember 2:S, 2PJ 3. Dr. Borodok~r appropriately teconunen~ed -that the ·symblephartm requited· removal in stages and·would be sent for bfopsy1 pending a pte- -operative clearance-from _plaintiff's primary care.physician. However j throu~ no fault of Dr. B.qr-odoker; plaintiff did not obtain clef\rance. Dr. Medow opines that the standard of care requ_ired pre-operative ~learance prior. to the __surgery ~ntemplated·.by Dr. Botodoker,_ due-'to the plaintiff's e~istirtg- conditions. which inctuded ·dh1.bete$; higfJ blood pressure and, anemia, and because the procedure would require anesthesia. Dr. Medow also notes- tha~ after ttie -plaintiff failed to obtafo clearance, Dr. ·. Borodoker's office appropriateiy -schedtded a February J, 2014 foJlow-up aPJ'omtment. However,_ the· plairttiff failed to appear. Foliowing plaintiff'-s June. 19, ·2014, and August 29, 2014 app.ointments, Dr. Borodoker attempted to._ proceed with -a ·biopsy <m September .19, 2014, .but the plaintiff failed- to appear for the· procedure and cnissed h'er follow-up appo_introent sched,uled for Septemb_er 22, 2014. The plaintiff did ·return In-October of2014, and dld not·go·~9 the Infinnary for emergency treatment on October 24, 2014 as:directedby Dr. Borodoker, Dr. Medow opfoes that the delaysjn diagnosis.which_ occurred after the plaintiff left Dr. Borodoker,s e;are were noLattdbutapJe to an_y departures by-Dr. Borodoker. He notes, for example, lhat ai though the .plaintiff was advised by the KCH physicians, on 'October 28, 2014, that she may have can·cer1 the biopsy..scheduled for 'November ... _12,. 2014: was canceJlectdu.e to the plaintiff's oth·er medical conditions .. 9 of 18 [*[FILED: KINGS COUNTY CLERK 07/16/2018] 10] NYSCEF DOC. NO. 129 5 • ~~~ ·-- INDEX NO. 511200/2015 RECEIVED NYSCEF: 08/03/2018 ·~ --. Based upon the plaintifrs history ofi:efusing to foltow the_,recommendations -of Doctors An9sikeJ Ehren_haus, 13orod~ker and Herschoril, her missed ~ppointments and -failures to· obtain :pre-operative clearance, Dr. 'ME!dow concludes that the :delays in ,di~gnQsis and treatm~nt were not attributable ·to negligence on the part of Dr.·Boro4oker. Alternatively, Dr. Medow opines that the delays in diagnosis during Pt. .B'orodQker's." tre~tment _did ·not cause plairitifrs_ injuries- pecause had:the plaintiff undergone a-biopsy When it was first recomrnended by Dr. Bc;>rodoker 1n September of ~. t, iou:i the cancer was, already-so· advanced that removal ofpla_irtti(r:s left eye would :still hav~ l;?een n~sary. 'T/1e·:PlttiJ!.tifF~ .) Oppo.sUion In opposition the plainUff relies upon the redacted affrrmation 5 of a Board. Certified ophthalmologist. The -plaintiffs e~pe'tt opines that- Dr. Borodoker's care· ' d~p~ut~d_ .tram accepted standards of medical practice; resulting-in a delayed diagnosis. of the cancer in the plaintiff's left eye; The expert contends. that Dr. Borodoker noted only a minimal:.risk of malign~ncy when she ·first. treated the plaintiff, and diagnosed her as suffering from a sytnblepharon. The expert asserts that Dr. Horodoker's diagnosis. of a -symblepharon and her suspicion of an infectious cause. of piaiotiff s symptoms wer~ incc;:msiste.q.t with her simultaneous order of a biopsy. The expert theotiame 0 f plaintiff's expert is redacted,, plaintiffoffered -to provide the court with the. u.nre.dacted original.for in camera inspection,. and the· defendants made no objection to the redaction in their reply papers (see Turtv:Birk, 118 AD3d 979, ·980 [2d Dept' 2014.)). _s_ Although 10 10 of 18 '-:-"'F .- [*[FILED: KINGS COUNTY CLERK 07/16/2018] 11] NYSCEF DOC. NO. 129 opirt~ INDEX NO. 511200/2015 RECEIVED NYSCEF: 08/03/2018 Dr. Borodol<er that . should have. ref~rred th~ pl~jntiff for a follpw-up examination, The expert asserts· that Dr. Borodoker'_s_ office ditl not make adequate attempts to sched_ule. ~ perform~d ..a bi'!~sy. In particu_l~.r-., the.exp_e_rt 0:pines. that Dr.. Borodoker could have b.iopsy without B: pr~oper~tive clearance,_ as this is O·fi<m done and is an acceptable medical practice. The expert contends that the. defendants had an ob ligation - ~ to make every effort possible to establish-contact with-the p1aintitf and to proceed with a biopsy,.even ifa pre-operative deara.nce could notbe obtained. 11ie plaint~ff s expert not~s that at plaintiff's folh;iw-.up visits. of June .19, 2014~ August 29, 2014, October 18, diagnosed 2014~ her· with sytnblepb:aton. and October -22, 2014, ·nr. Borodoker again He ·contends that the -tissue· obtained by Pr. ·Bor:odoker when she drained. plaintifrs eye, should have been ·submitted ·for pathological exarninat\oil.~ and _opines that $UCh an examination, likely, would have ~erted Dr, Borodoker to the We.el ihood of roal.ign_an.c}r. pjaintifr·s.expert alScl opin'e5 that Dr. Borodoker underestimated.the 'S'er'iousness_ of the plai.n.tiffs ·~onditi:on and failed_ to convey to the_ plaintiff a suffo;ient ~-ense of utg~ncy-.. Instead, plaintiff's expert conteJ1ds, the defendants are inappropriately trying. to shift· blame onto the plaintiff for the delay-in diagnosis'. Plaintifr s ~xpert con dudes that there was a ·significant delay .1n diagnosis- befqre -(!.ny biopsy was. performed, and· that if the plaintiff's condition had been diagnosed earlier.: het cancer would have been loc,alized ~a the conJqnctival surface and, _could b4ve, been treated with local excision with a<_ijurtctive eryotherapy or with lpcal ctiemotherap_y. Th,e expert notes that such 11 11 of 18 ....:. [*[FILED: KINGS COUNTY CLERK 07/16/2018] 12] ?" 44 0 !'111·--...-~ ·--:•"" NYSCEF DOC. NO. 129 -·--,_.,.· INDEX NO. 511200/2015 RECEIVED NYSCEF: 08/03/2018 '-' ~trn~t would have ~eft .eje.and th~ Dr. prevented some of p'laintiff s injuries, Including the loss ·of het- djsfigurement of_her face. Cavusoglu·'~ Reply In· reply, defortdartts· note that Or. ·M.edovf thoroughly revie_W,ed Dr. B orodo}(er~ s office notes· concern1ng plaintiff and based upon his ·review Dr. Medow a:ffirtns that each oftbose yisitS feU within the acc~pte.d standards ofinedical .care. The·defendants argue that Dr. Suitana's .medical records further indiC~te that surgery could not be performed because the· plaintiff could not obtain pr.e-opetative· 'Clearance. 11or example, Dr. Sultan~ in an April 9, 2014 report, notes that the plaintiff would. be scheduled fo1 left eye surgery om;e he( blood-sugar levels were controlled. After Dr. Borodoker's treatment ende~, there were further delays in diagnosis and treatme.nt because. the plaintiff·could not proceed. with surgery at KCH in November 2014, and could.not obtain. clearance for surgery by . . . Dr. Herschorn in December 2014. Dr~ Sultana, fa a D~~ember 12, . 2014 note, documented .a finding·that plaintiffs surgery was 'on hold ·because. of.her el~a~ed hlqod-sU:gat levels, Dr. Sultana's records also include· a. January 19, 2015 ietter documentinK that the plaintiff was .scheqµled for a left eye i-: biopsy ·and surgery at the Ir1finrtaty in February 20.15, b"Ut needed pre--ope·rative. C,le~ance to pmceed. /\January 26, 20l5 note reflects that plain,tiffi~ surgery was. again on hold heca'1se of her ekv.at~d. b.lood~sug.ar levels. Thus, defendants 'Conclude,. the ·opinion of plaint.ifrs expert is cpnclu~qry in evidenc.e that pre.operative clearance Was that he or she ignores the medical. mandatocy and "that the delays in the 12 12 of 18 \, T [*[FILED: KINGS COUNTY CLERK 07/16/2018] 13] I NYSCEF DOC. NO. 129 ·- - r7' IND~X NO. 511200/2015 RECEIVED NYSCEF: 08/03/2018 diagnosis and treatment of plaintifrs cancer were attributable-to plaintiff's ongoing 4i.ffic~lties \1(ith qbtaining cle~ance. DISCUSSION TC) make a prima fade- showing of entitlement to summary judgment in a medical malpractice case, a defendant must establish through medical records and a. cpmpeteniexpert~:5 affidavit.that·the defendant didJlot de:viate or:: depart from accepted 0 medical practice in-the _treatmentofthe plairttiff, or·tharth~ defendant's:· conduct was not the proximate cause of the plaintiffs injuty (see Castro v New York City Health & Hosps. Corp., 74AD3d.1005, 100.6'(2d Dept201'0]; Deutschv-Chaglassian, 71 AD3d 718, 719 [2d Pept201QJ; Platq v Guneratne, S4 AD3d 741, 742· [2d Dept.2008]; Jones v Ricciqtdel/i, 40 AD3d 935 [2d Dept 2007]). To satisfy this burden, the defendant must present expert opinion testimony that is supported by facts irt the record and addresses the. e·sseniial allegations in the hill of particulars .(see .Mathias v Capuano) I . ~ 153 AD3'd 698, 699 (2d.Dept 20 l'.7]; Ward v Engel! 33.AD3d 790, 791 [2d Dept 2006]). Cqnolusory state_mertts which .do riot _'address· th~ allegations in the pleadings ar~ insufficient to estaolish entitfement to surrunary judgment (see Garbowski v Ht1dso/i Val. Hosp. ··• .I Ctr.-, 85 AD3d 724, 726 [:id Dept 2011]). A physician owes a duty of' reasonable care ~o his Qr her patients and will generally be_ insulated from liability where there l~ evidence that h~ or-She ·conformed t.o the ac~_eptable standard of_ care and practice (see Barrett v 1Judsof1. Valley Cardio,vasc.u/ar. A~soc~, P.. C.,, ? 1 AD.34 691~ 6.92 :·1 •· .13 13 of 18 [*[FILED: KINGS COUNTY CLERK 07/16/2018] 14] N~SCEF boc. NO. 129 .. _.,..". ..,.}-" -· -~· INDEX NO. 511200/2015 RECEIVED NYSCEF: 08/03/2018 ~:_ ··-- - [2d Dept 2012]; Geffeer v North Shore Univ; Hosp._, 57 AD3d 839, 841.;842 [2d. Dept 2008]). f1Jl. opposition_, a plaintiff then tntist subrn1t rriateria-i or evidentiary facts to.rebut the defondanfs _prima facie showing that [the defend8nt] was not negligent'in tn~ating the plainti_ff' or that the defe_ndanC$ conQ,uct. w:as not a proximate cause of the _··~ piaintiff'"s mjµry (Dolan v Halpern, 73 AD3d · _1117, 11 l8-11 l9 [2d Dept 2010) ~ {i'nternal quotation marks omittedl) .. '"[Pjlaintiff'ne·ea on_ly raise a triable is$ue of fact ·,' regarding.-the element or elements ·on -which the defendant has; made its priina_ facie ~liowing" (McCarthy v Nqrthern Westchester Hosp.• 139 AD3d 825,_·826-827 [2d Dept .20l6J [internal qudtation marks omitt~d]). 0 Furthermore, - general allegations of medical malpractice that are conciusory and unsupported by comp~tent evidence tt:mding to establish the essential el~ments ·of n\edical malpractice are -insufficient to defeat a: ... defendnnCs.motion for $Ummary dismissal" (Melendezv Parkchester-Med. Se~s.. P ..C.; 16 AD3d 927, 927 [.htDept.2.010]). It i-s well settled that summary judgP,eilt may not -be awarded in a medical rpalpractice action where ·the _parties offer· conflictirig expert opiriions~ which present a credibility q"µestio:r:i.·r~quiring ·a Jury's resolution (see e.g. Loaiza v- Lam, .107 AD3d 951,_ -953 [2d Dept . 2Ql'3]; Dandrea v. Her~, .. A:D3.d 3·32, .333 [2d .Dept 2005]) .. 43 However, opinion evidence must be bas.ed-011 facts in the· record or personally known. t() the witness.- ... . An expertceannot reach his-'[or her] concIUsion 'by assuming .ma,teri~l facts :llOt .syppoited hy evidenc~· (A'br~ 1J Bute~ 138 AD3d 179·; 1. 9S-l9() [2d D~t. ' ~- ~ ' 2016) [internal quoti:i,tion triatks ahd. citati(}ns omitted], Iv denied2S NY3d 910 '[2016]). ..." I 14 of 18 --........... . ..:..........._ ·--~---- [*[F.ILED: KINGS COUNTY CLERK 07/16/2018] 15] INDEX NO. 511200/2015 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 08/03/2018 An expert ,affidavit tha:t Ts conc1usory or ~peculative is insufficient to .,raise a. triable. issue of fact-where the expert fails to· s·et forth any basis for hi'.) or her opinion and fails to. address the specific assertions made by tho defendant's -expert (see~ e~g., R-Ners v Birnbaum, lOZ AD3d 26, 45 [2d Dept 2012); see generafly Senatore v Epstein, 128· AD3_d 794,'795 [2d.Dept2015]; Bendelv Rajpq/, 101AD3d662, 663 [2dDept 20li]). He~, the-defendants have e_stablish"d their entitJement to_jqdgm~nt through the. ' expert opinion of- Dr. Medow who,_ reiying upon plaintifr·s_ medical records, demonstrates that neither· Dr. Boro.doker nor the P.C. departed from good and.accepted medi.e:al pr~ctice-in the4' treat1net].t of plaintiff (see general/y.Brtnkle;yv Nassau Health. Care~ '1'20 AD3d I2 87, 12-89 [2d Dept 2014h La/wra v Auteri, 9TAD3d- 799 [2d Dept 2012))~ Specifically1 Mcdow opines that Dr. Borodoker appropriately ft'COinmended that the plaintiff's symblepharon be removed in stages and be sen_t for a biopsy. Dt. Medow opines that the Standard-of care required,pre-operative clearance prior to.-Dt. Borodoker'_s contemplated surgery because of the, plaintif'.f'-s diabetes, high blood pressure and anemia. However, as Dr.- Medow .·notes, thr0ugh· no. 'fault pf Dr. Boro.d.ol<ey,, the-. plaintiff failed to obtain medical ·ciearairce. The pl.i!intiff,, In opposition, fails to .rebµt the· defendants' prima /acie: showing. The opinions of plaintifrS· expert are conclusory and unsupported by competent evidence ·tending-to establish the essential elements of m.edica1 ~f.l,lpractice and are, therefore, insu:ffident to defeat defendants' motion fat summary judgment (s:ee. generally Melendq, 76 ADJd. at 297; Fi/t:ccia v Mass~pequa _Gen. Hosp.,_ 99 AD2d; 796 [2d Dept 1984), affdfor reaso~ stated be/ow 6l.NY2d 639 [1984.]}. Plaintlff·s 1.$ 15 of 18 '.i; ,_ • -~----...-,...,;.,.......-·•. [*[FILED: KINGS COUNTY CLERK 07/16/2018] 16] NYSCEF DOC. NO. 129 INDEX NO. 511200/2015 RECEIVED NYSCEF: 08/03/2018 exp_ert fails to identify ariy facts--in .the record, or any- other basis fot his opinion that accepted standards of care Woµ,ld have allowed Drr Bo:rodoker to perfonn a bi~psy on the pl aintift notwithstanding plaintlff' s e1evated. blood-sugar- levels and her inabiiity to secure pre.,operative clearance (see generally Burns \'Goyal,- 145 AD3d 952, 95-S [4d Dept 2016], lv.granted 145 AD3d 952 [2017]; Abrams, 138 AD3d at 195-196; -·~ Senatore_, 128 AD3d at .795;_ Rivers, 102 AD3d at 45; Bendel, 101 AD3d at 663). Moreover, the:record, including plaintiffs medical records and the parties' deposition .·.. testimony, establish that Doctors_ Anosike, Ehrenhaus and Borodoker each made numerous atte1J1pts to- sche.dule amJ-p_erfont\ a biopsy o_n the: plainti.ft and that each physician ·made numei'o_us attempts to contact the plaintiff when she failed to follow up or-appear for her scheduled-appointments. "In addition, whenplaintiffbegatltotteat with Dr. Borodok;er, she,repeatediy failed to obtain a pre-operative clearance so that ·a ' -1 biopsy could be performed. · uAI though physi~i. ans owe_ a general quty of care to_ their patients, that dµty may be limited to those medical functions· undertaken by the physician llild relied on by the -patient. Tue question of Y{hether a physician owes a duty to the plaintiff is a question for the court, and is not an appropriate subject for expert opinion" (Donnelly v Parikh, 150 AD3d g20, 822.[2.c;l pept20 l7] [iritemal quotation,marles, ~i.~tions,_anQ. alterations: omitted]; seealsoBurtmanv Btown, 91AD3d156, 162;.163 [IstPept20q]). Further. a doctor "is ''entitled to reiy on the treatment rendered to [the patient] ... by specialists bc;:tter equipped to handle [the patient's] condition" (PerervEdwards, 107 AD3d 56S, 566 [1~' Pept 2013]~ -zv denied22 NY3d 862 [201.4]; see also Yasin vManhattan Eye_, .lW ,, I ~. - 16 of 18 ' , '"i _J .... _ [*[FILED_: KINGS COUNTY CLERK 07/16/2018] 17] NYSCEF DOC. NO. 129 _..,...INDEX NO. 511200/2015 RECEIVED NYSCEF: 08/03/2018 Ear & Throat.Hosp., 254 AD2d . .281 •.. z·s2·.[24 D.e;pt 1998]). Here, defendants advised plaintiff that she needed to have a biopsy perfonned, . .refe'rred her to her primary care. physician to seek pre-operative .clearance, and, when she presented· with worsening symptoms on October 24,.20-14,:·teferred her to. the Infirmary on an emergentbasis for further evaluation. Thus, the .defenclants. acted within -acceptecf 'standards of medical care in ~ferting_the plaintiffto specialists.{see Middletonv Fuks, 69 AD3d 689t 690 [2d Dept 20iO]; Peters v Goidner, 50 AD3d 350, 350..:351 [I st Dept 2008}, /v denied.11 NY3d . 710 [2008]';.Musiaro v ClarkstownMed..Ass.oc., P.C., 2 ADJd-698, . 698-699 [2d Del?t ~ollowiug. 2003]). the referral tp the Infirmary, defendants' responsibility to the. plaintiff ended as her care had been transferred to another physician (see· Parriila v· Butceliato, "95 AD3d 1091, 1093 [2d Dept 2012]; Arias v Flushin_g Hosp. Med' Ctr, 300 AD2d 6 i 0•. 611 [2d Dept 2002] ).. Defendants. had no further, independent duty to. a&sess ~e tz:~atm.ent rendered· fu. plaintiff by sti~seql,lent physie:ians (see generally Bw-tinan,. 91 AD3d at t-64: Dombroski v Samaritan- Hosp., 47 AD3d 80, 85 [3d Dept 200.7)). Addit!onafly, ,plaintifrs medical records and her d1:position testimony establish that ~he was timely ancl ade_quateJy i~fonned consistently refused to have one performed of the nec¢ssity of a biopsy, but. (~ee . _., Cintron v Montejiore Med. Ctr;,_ 9.2 AD:ld .540 [1st Dept 2012], .Iv denied· 19 NY3 d 813 [20 12] ;. Mebrik~Mirzakhah.' v Tavdy, .84 AD3d 1039, 1040 [2d Dept 2011)~ Pt:lulch v Rudick,. 201.l NY Slip Op 3· l 9.67[U], :t: 16' [Sup Ct, NY County 2011 ]) ~ In decUning the. recommendations of h_er -:i 17 17 of 18 [*[FILED: KINGS COUNTY CLERK 07/16/2018] 18] • wssc a ws•. ~ r NYSCEF DOC. NO. 129 -""- INDEX NO. 511200/2015 RECEIVED NYSCEF: 08/03/2018 doctors 1 plaintiffaccepted·a sµbsumtial part o_fthe· risk of proceedingwith9ut prompt treatment (see Charell v Gonzalez, 251 AD2d 72~_ 73 Ust- Dept 19.98], lv.qeni¢d-.92 NY2d-·816 [1.998]). The·.third-p~ co1npfaint of Dr. Boro.(ioker and the P.C. against N.Y.C.-Health- and Hospitals Corporation, Kings Co~t1tY Hospital Center, Jinli Liu, M.D. 1 and Twisha ,. • ., O~_, M.D.,. only seeks. indemnification and con~bution from the third-party defendants-and, thus, is strictly derivative of plaintiff's claims against Dr. Borodoker and the P.C. Thµs, as D.r; Borodo'ker and the P.C. are . entitled to 'Summary judgment,. ~eir ~laims agai.n.st the· third-party ~f~!Jdants. mll$t likewis_e b.e dismissed. Accordingly~ it-is: ORDERED, that the motion of Eye Surgery_& Aestheties,__ P.C-., and Natalie· Bo.rodoker, M.D. is granwd and the complaint' of plaintiff Kettelie Pierre•Canel is 4ismiss.ed; 1.;. and it is further ORDERED, that the third·party complaint ofEye·.$urgery & j\e~thetics, P.c;, and Natalie Borodoker1 M·.D. against N.Y;C. Health and Hospitals Corporation, Ki.rigs Cc.:nmty Hqspital C~nter,. Jinli"Liu, M.D.~ and Twisha_ Oza_-, M.D. is dismissed as moot. E__N . --·· FI LED~ ' .-.,;'l;\i.JL f)AB\R\HON. GL-"-'·~'''L - · · -·· ~ ·~,,..-. ~ . JUL 16 2018 «IMGS COUNTY CLEKK'S OFFICE 18 18 of 18 l .

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