Tinoco v Albany Med. Ctr. Hosp.

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Tinoco v Albany Med. Ctr. Hosp. 2018 NY Slip Op 34361(U) October 16, 2018 Supreme Court, Albany County Docket Number: Index No. 906540-16 Judge: David A. Weinstein 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. FILED: ALBANY COUNTY CLERK 10/18/2018 01:20 PM NYSCEF DOC. NO. 45 INDEX NO. 906540-16 RECEIVED NYSCEF: 10/18/2018 STATE OF NEW YORK. SUPREME COURT COUNTY OF ALBANY SAMANTHA M. TINOCO, Plaintiff, -against- _ DECISION AND ORDER Index No.: 906540-16 RJI No.: 01-17-124167 ALBANY MEDICAL CENTER HOSPITAL and DAVID KIMBLE, M.D., Defendants. APPEARANCES:. Basch & Keegan, LLP Attorneys for Plaintiff By: John A. DeGasperis, Esq. . 307 Clinton Avenue P.O. Box 4235 Kingston, New York 12402 Maynard, O'Connor, Smith & Catalinotto, LLP Attorneys for Defendants Albany Medical Center and David Kimble, MD. By: Lia B. Mitchell, Esq. 6 Tower Place · Albany, New York 12203 David A. Weinstein, J.: Plaintiff Samantha Tinoco brn_ught this medical malpractice action seeking to recover for inju~ies she allege_dly suffered fo"ilowing a March 16, 2016 laparoscopic left ovarian cystectoiny performed by defendant Dayid Kimble,.M.D., while she was a patient in the care of defendant ' . Albany Medical Center Hospital ("AMC") (Mitchell Aff, Ex A). In her complaint, plaintiff asserts three causes of action:· (1) negligence; (2) medical malpractice; and (3) lack ofinformed 1 consent (id). Specifically, the complaint alleges that defend_ants were negligent in failing to act 1 [* 1] 1 of 13 FILED: ALBANY COUNTY CLERK 10/18/2018 01:20 PM NYSCEF DOC. NO. 45 INDEX NO. 906540-16 RECEIVED NYSCEF: 10/18/2018 I II . in a reasonably safe manner when treating and caring .for plaintiff; defendants engaged in malpractice by deviating from the accepted standards of medical care in performing the cystectomy; and defendants failed to secure her consent to treatment and failed to advise, disclose, inform and/or notify her of the risks, benefits and/or alternatives to the prescribed treatment (id.). Defendants now move for summary judgment dismissing all claims. Plaintiffs have submitted papers in opposition, including an expert affidavit. The parties' submissions reveal no factual dispute as to the general contours of the medical treatment that plaintiff received from defendants on March.16, 2016 and subsequent thereto (compare Kimble Aff ~~ 5-11 and Plaintiffs Expert Affidavit ["Pl Ex Aff''] 117-14; -see also Mitchell Aff~113-18 andDeGasperis Aff~14-12). The background set forth in those submissions is as follows: On March 10, 2016, plaintiff was admitted to AMC complaining of abdominal pain and distention, frequent urination, painful menstrual periods, and alternating constipation and diarrhea (Kimble Aff ~ 5; Pl Ex Aff 17). She was 17 years old at the time (DeGasperis Aff ~ 1):. Initially, plaintiff was seen by a gastroenterologist (Kimball Aff~ 5; Pl Ex Aff~ 7). -She underwent an ultra sound and computed tomography ("CT-scanJ of the abdomen, which revealed a large cystic mass originating in the pelvis, as well as a smaller daughter cyst within the cyst with a small solid component (Kimble Aff16; Pl Ex Aff 18). The cyst extended from the pelvis to the mid-abdomen and exerted·pressure on the right kidney and ureter-causing hydronephrosis (kidney swelling due to a build up of urine) and hydroureternephrosis (dilation of the ureter and part of the kidney) (Kimble Aff~ 6; Pl Ex Aff~ 8). Based on the imaging results, plaintiff was admitted to AMC, and consulted with Dr. Kimble on March 11, 2016. Following this consultation, a decision was made to~emove the cyst through laparoscopic sur$ery (Kimble Aff18). . On March 16,.2016, plaintiff was readmitted to AMC for the laparoscopic left ovarian cystectomy (Pl Ex Aff110; Kimble Aff110). Dr. Kimble performed this surgery with assistance from then fourth-year resident, Dr. Tara A. (Renna) Lynch (Pl Ex Aff~ 10; Kimble· .Aff~ 10). Plaintiff was discharged from AMC the same day following the surgery, only to be readmitted again to AMC three days later with a suspected bladder perforation. Following examination, a stent was placed in her right ureter (Kimble Aff~ 11). On March 20, 2018, 2 [* 2] 2 of 13 INDEX NO. 906540-16 FILED: ALBANY COUNTY CLERK 10/18/2018 01:20 PM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/18/2018 . plaintiff underwent a laparoscopic robotic repair of her bladder, which was performed by an .AMC urologist, Dr. Badar Munier Mian, M.D. (Pl Ex Aff114; Kimble Aff11 l). Plaintiff contends that the March 16, 2016 laparoscopic left ovarian cystectomy caused • her to suffer injury to her ureter and a punctured bladder, as a result of negligence and medical malpractice on the part of defendants AMC and Dr. Kimble (DeGasperis Aff112,17; Pl Ex Aff 121; see also Mitchell Aff, Exs D-E). In support of defendants' summary judgment motion, they submit the affirmation of · counsel; the affidavit of David Kimble, M.D. seeking to offer an expert opinion; the deposition transcript of Dr. Kimble ("Kimble Tr"); the deposition transcript of plaintiff ("plaintiff Tr"); the deposition transcript of non-party Valeria Tinoco, plaintiffs mother ("V. Tinoco Tr"); the . Lynch, M.D. ("Lynch. Tr"); the Affidavit of of non-party Tara A. (Renna) deposition transcript . . . ~ . Dr. Badar Munir Mian; the AMC records of plaintiffs March 16, 2016 admission, as well as her AMC Ob/Gyn records; and portions of plaintiffs medical records from November 3, 2016, November 21, 2016 and March 27, 2017 (see Mitchell Aff, Exs F-Q). These submissions indicate that on March 10, 2016, the date of plaintiffs first examination, her mother signed a "Consent for Procedure Form" (Mitchell Aff, Ex M at 19). Although Valeria Tinoco testified at her deposition that this form covered a di~impaction procedure performed that day (V. Tinoco Tr 17-18), the form itself states that it authorizes, inter alia, a "laparoscopic cystectomy" and "possible exploratory laparotomy." (id.). Dr. Kimble's affidavit states that he· is a New York licensed physician, board certified by the American Board of Obstetrics and Gynecology and employed by AMC (Kimble Aff12). He evaluated plaintiff on March 11, 2016 and determined that she should undergo surgery to drain and remove the cyst (id. 18). He avers that he presented plaintiff and her mother with two options for the surgery, a laparotomy (an open procedure)which would leave a substantial scar and require longer recovery time, or a minimally invasive laparoscopic surgery (id.). . . . Dr. Kimble avers that he informed plaintiff of the risks for both procedures, which would include "bleeding, infection, injury to surrounding organs such as the bladder and ureters, injury to vascular structures; recurrence of the cysts, and in the case of a laparoscopic procedure, the possible need to convert to an open procedure" (id.; see also Kimble Tr 27-29). He also asserts that he advised plaintiff and her mother that the laparoscopic procedure would have to be 3 [* 3] 3 of 13 INDEX NO. 906540-16 FILED: ALBANY COUNTY CLERK 10/18/2018 01:20 PM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/18/2018 . converted to an open procedure if the cyst could not safely be removed laparoscopically or if any malignancy was found (Kimble Aff,r 8). According to Dr. Kimble, there was no evidence that the cyst was malignant and he recommended the laparoscopic procedure (Kimble Tr 26). He states that he spent approximately 45 to 60 minutes with plaintiff and her mother discussing the two procedures, and they eventually agreed with his recommended approach (Kimble Affif 8). In Dr. Kimble's opinion, he provided plaintiff and her mother with ample information rega~ding risks, benefits and alternatives to the laparoscopic procedure so they could make a knowing and informed decision _ on how to proceed with the removal of the cyst (Kimble Affif 8; Kimble Tr 24). Dr. Kimble avers that on March 16, 2016, the morning of the surgery, he met with plaintiff and her mother to again discuss the surgery and address any further questions and concerns they might have (Kimble Aff ,r 9)'. He asserts that both plaintiff and her mother again agreed with the planned laparoscopic procedure (id.). Plaintiffs mother then signed a second consent fonil authorizing the surgery (Mitchell Aff, Ex. M at 148). At their depositions, neither plaintiff nor her mother recalled what they discussed with Dr. Kimble or the other physicians that they met with prior to the surgery as to the specific risks involved with a laparoscopic procedure (Plaintiff Tr 29-37; V. Tinoco Tr 15-23). ~Plaintiff testified that her surgical preference :was for the laparoscopic surgery because she understood . that it would result in the smallest incision (Plaintiff Tr 35). The surgery lasted approximately three hours, with Dr. Kimble being assisted by Dr. Lynch (Kimble Aff ,r 10). During the procedure, a catheter was inserted to drain plaintiffs bladder (id.). Following the administration of general anesthesia, Dr. Kimble performed a hands-on physical examination of plaintiffs abdomen. He felt the cyst extending out to the bottom of plaintiffs rib and estimated it to be about 40 centimeters in size (Kimble Tr 48-51). A spinal needle was then inserted into the abdomen and a syringe was used to drain fluid from the cyst and cause it to decompress (id.; Kimble Aff ,r 10). During the insertion of the needle, Dr. 1 Kimble was not able to see into the abdomen and no laparoscopic cameras or l?orts were being utilized at that time (Kimble Tr 51-52). After two liters of fluid had been drained from the cyst, it had decompressed enough to perform the laparoscopic portion of the surgery (Kimble Af~ ,r - 10; Kimble Tr 53). Once the camera and tools were inserted into the abdomen, further drainage 4 [* 4] 4 of 13 INDEX NO. 906540-16 FILED: ALBANY COUNTY CLERK 10/18/2018 01:20 PM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/18/2018 occurred, and then Dr. Kimble and Dr. Lynch were able to remove the cyst and preserve plaintiffs ovary1 (Kimble Aff110). According to Dr. Kimble, before the laparoscopy was completed he surveyed the contents of the_pelvis and abdomen and did not see any sign of damage or injury to either of th~ ureters or ~he bladder (id). He asserts that, during the laparoscopic procedure, none of the equipment came ,into contact with the bladder (Kimble Tr 81 ). The AMC medical records submitted in support of defendant's motion contain an Operative Report from Dr. Mian, in which he describes the procedure he performed on_ plaintiff on March 19,-2016 (Mit~hell Aff, Ex Mat 333-335). The Report stated in relevant part: "a retrograde pyelogram was obtained, which did show a transition-point in the rightureter and there may have been extravasation; 2 however this was unclear. However, it was dear that the ·ureter was more dilated above this transition with mild hydronephrosis" (id. 334). The report also explains that the surgical team performed "a systemic inspection of the bladder ... and were able to see a 1-1.5 cm circumferential defect in the posterior wall bladder -with necr~tic edges. Similar sized defect was seen in the anterior wall of the bladder'' (id). In · Dr. Mian's opinion, "it appeared that as if this was a port type versus robotic instrument versus Veress needle that went through-and-through the bladder. It appeared that an anterior hole was extraperitoneal and the posterior hole was definitely intraperitoneal" (id). Dr. Mian repaired the bladder the next day on March 20, 2016 (id.; see also Mitchell Aff, Ex Mat 330-332). Dr. Kimble explains that his review of plaintiffs medical records revealed that, following the laparoscopic surgery, she had "a small defect in: the base of the bladder and a very . f small one at the very top of the bladder" (id. 83). He denies, however, that ii could definitively although he acknowledged that Dr. Mian's be established that these defects were perforations, . ~ post-operative note express~d an opinion that a defect was found in the anterior wall of the - . bladder that appeared as if it was caused by a port or robotic instrument or needle (id. at 83-85). 1 Following plaintiff's March 16, 2016 procedure, and subsequent bladder and ureter repair surgery, on November 21, 2016 she_ underwent what Dr. Kimble understood to be a second laparoscopic operation with Dr. Elliott Birnbaum to -remove another ovarian cyst, which may have been a recurrence of the cyst that had been removed by Dr. Kimble or a new cyst that had developed (Kimbie Aff112). On March 27, 2017, plaintiff had to undergo a third · . ovarian cystectomy, which was an open procedure (laparotomy) with Dr. Birnbaum (id). 2 Extravasion is defined by the Collins English dictionary as "the escape of blood or lymph from their proper vessels into surrounding tissues" (see https://www.collinsdictionary:com/us/dictionary/english/extravasation). 5 [* 5] 5 of 13 INDEX NO. 906540-16 FILED: ALBANY COUNTY CLERK 10/18/2018 01:20 PM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/18/2018 Dr. Kimble opines that neither his ports nor needles were anywhere near the bladder, which is just below the pelvic bone (id at 85; 92-93). He states that he does "[not] know how in the world [plain~iff] sustained a small one centimeter defect in the posterior wall of the bladder" (id 82). With regard to the March 16, 2016 laparoscopic procedure, Dr. Kimble denies that there was.any identifiable injury to the plaintiffs.bladder at the time of the surgery, as his inspection revealed "absolutely no evidence of any damage or injury to the bladder at that time" (Kimble Aff~ 13). Even assuming that his surgical procedure may have injured the bladder, Dr. Kimble contends that such an injury is not indicative of a d~parture from the accepted standards of care the standard of care for a (id). According to Dr. Kimble, who states that he is fully familiar with . ~ board certified gynecologist performing ovarian mucinous cyst removal surgery, "it is well recognized in the field of gynecology that there can be injuries to adjacent organs such as-the bladder and that such injuries can and do occur in the absence of any negligence or wrongdoing" (id.). Dr. Kimble is also of the opinion that plaintiff did not suffer a right uretal injury from his surgical procedures because, he claims, there is no evidence of this injury (Kimble Aff114). He explains that the need for a stent in the ureter was due to a benign condition that existed prior to the March 16, 2016 surgery, and points to the March 10, 2016 imaging that revealed hydronephrosis and dilation of the ureter as evidence of the pre~existing condition (id.). It is Dr. Kimble's position that Dr. Mian's post-operative note stating that the presence of an extravasation in the right ureter was "ui:iclear" demonstrates that one cannot, to any degree of medical certainty, state that such an injury occurred during the surgery (id). In the event there were proof of harm to plaintiffs right ureter, Dr. Kimble opines that such an injury is not indicative of any departure from accepted medical standards of care (id.). While plaintiff claims that the March 16, 2016 laparoscopic surgery was contraindicated and that the standard of care required a laparotomy to be performed, Dr. Kimble contests the accuracy of these assertions, arguing that the laparoscopic procedure was consistent with the standard of care and its use was a reasonable exercise of medical judgment (Kimble Aff1 21). Specifically, he expresses the view that the cyst did not present a malignancy concern, nor was-it is so large as to require an open surgical procedure to reduce the risk of surgical complications (id 1128-29). 6 [* 6] 6 of 13 INDEX NO. 906540-16 FILED: ALBANY COUNTY CLERK 10/18/2018 01:20 PM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/18/2018 In response to plaintiffs claim that there was not adequate visualization of the large ovarian cyst and that the "blind" drainage ofthe cyst was improper, Dr, Kimble contends_ that he was able to adequately palpate the abdomen to ensure the needles would be placed directly into the cyst (id 123). He also asserts that this technique "is a common, safe and accepted method for draining a cyst; and in no way represented a departure from the standard of care" (id.). He further explains that "the standard of care did not require that the cystic mass be removed in a . . single piece, and it was ~ntirely appropriate to remove the mass in several pieces" (id.). During hei' deposition, Dr. Lynch acknowledged that the method used to decompress the plaintiff's cyst could b~ referred to as a "blind" decompression, meaning it.is not don~ via qirect . \ visualization or additional imaging {Lynch Tr 36). Dr. Lynch testified that it is her understanding that plaintiff sustained an injury to her bladder during the March 1·6, 2016 l~paroscopic surgery and that the injury went from the front <:>fthe bladder to the.back (id. at 54.55). Dr. Lynch was unsure what dwing the.surgery caused the bladder injury; however, she agreed ~at it is possibl~ that one or more pieces of medical equipment, such as a needle, may · have been the cause (id.). Dr. Lynch further testified that she believes that plaintiffs . . was"likely caused by the injuries ·that 2016-surgery 16, March the readmission to AMC following plaintiff sustained during·the surgery that she and Dr. Kimble performed (id. at 56). In opposition to defendants' motio~, plaintiff submits an affirmation of counsel as well as a physician's affirmation seeking to offer expert opinion on plaintiffs behalf. 3 Plaintiffs expert is -licensed in New York and board certified in gynecologic oncology and in obstetrics and gynecology by the American Board of Obstetrics and Gynecology, with full membership in the Soci~ty of Gynecologic Oncologists (Pl Ex Aff14). He has served as a . clinical instructor at New York University School of Medicine, State University ofNewYork's Health Science Center at B!ooklytt; ·and Jefferson :Medical College in Philadelphia (id. 11 L-3).· · The doctor attests that he routinely performs open radical surgical procedures for a range of gynecology malignancies as well as advanced lap~oscopic and robotic surgeries includfog cancer staging and radical hysterectomy (id. 1 5). As noted, plaintiffs expert states, based on his review of the AMC medical, that his ,, professional opiniort is that Dr. Kimble deviated from good and accepted standards of care in three ways, all of which were cited~ plaintiffs bill of particulars (Mitchell Aff, E~s D-E). _ 3· The ·name of the affiant has been redacted. 7 [* 7] 7 of 13 INDEX NO. 906540-16 FILED: ALBANY COUNTY CLERK 10/18/2018 01:20 PM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/18/2018 The first such deviation was in Dr:Kimball's "[1] ... performing a "blind" percutaneous aspiration _of Plaintiff's left ovarian cyst without adequate visualization ... " (Pl Ex Aff ,r 15). Plaintiffs expert contends that th~ "blind" aspiration of-the cyst made it impossible for the surgeon ''to know whether the adjacent anatomy was safely out of harm's w~y" (id. ,r 16). Dr. Kimble's palpation ·of the abdomen, according to this view, would have provided only a limited · sense of the tumor's position within the abdominal cavity and it& overall-~ize, shape and dimension (id.). ·Second, the expert opines that Pr. Kimble deviated from the standard of care by "removing the tumor, which by all objective standards was extraordinarily large, via a I laparoscopic procedure instead of a laparotomy ... " (id. ,r 15). Accordingto plaintiff's physician, due to the large size of the cyst.:.. at.a preoperative measurement of 40 centimeters - a treating doctor's ability to determine what is sitting behind O! adjacent the targeted mass is significantly obscured and the best approach would be a laparotomy- removing the cyst intact, not in pieces (id.). By choosing to J>erform the operation laparoscopically,'plaintiff's expert states that Dr. Kimball caused plaint1ff to sustain injuries to her bladder and right ureter during the "blind" drainage of the cyst (id. ,r 21 ). Third, the expert states that Dr. Kimball committed malpractice by '~not removing the tumor intact" due to th~~ chance of malignancy, even though the ·risk may have been low (id. ,r,r 15, 18). Thus, Dr. Kimble ~eviated from the standard of care when he elected to drain the tumor. To the extent that the drainage was ·an acceptable risk,plaintiff's expert witness opines . . that it should have been performed under direct visualization, such as during 'a mini-laparotomy, . or via image guided drainage (id. ,r 15). The "blind" techniqu_e utilized, in plaintiff's doctor's the · opinion, increased. the likelihood of inadvertent injury to the adjacent anatomy," including ' . . bowel, bladder and other vascular structures (id. ,r 19). . In a reply affirmation of counsel, plaintiff argues, inter alia, that plaintiff failed to . . demonstrate that any actions of defendants caused her injury; plaintiff's expert opinion_regarding Dr. Kimball's lack of visualization was based on a "misunderstanding" of the fact that the camera provided direct visualization for "other aspects of the surgery" except drainage of the cyst; and the expert's calculation of the procedure's risks wa~ based on his "concern about -malignancy" notwithstanding that the mass at issue was not malignant (see Reply Aff,r,r 24-25). 8 [* 8] 8 of 13 INDEX NO. 906540-16 FILED: ALBANY COUNTY CLERK 10/18/2018 01:20 PM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/18/2018 Discussion To obtain swnmary judgment, a movant must establish its position "sufficiently t<? warrant the court as a matter of law in directing judgment" in its favor (Friends ofAnimals, Inc. · v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979], quoting CPLR 3212[b]). The proponent of a-summary judgment motion must initiaJly make a prima facie showing of entitlement to judgmen~ as a matter of law, by tendering sufficient evidence to eliminate· any genuine material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). The. of denial of the motion, regardless of the sufficiency failure to make such a showing mandates . . . the opposing papers (see Winegrad v New York Univ. Med Ctr., 64 NY2d 851, 8~3 [1985]). If a , for summary to the party opposing the motion showing'is made, prima facie , . the burden shifts . judgment to come forward with evidentiary proof in admissible form to establish the existence of . . material issues of fact which require a trial (see Zuckerman v City ofNew York, 49 NY2d 557, '562 [1980]). As the proponents of a motion for swnmary judgment in a medical malpr~ctice_ action, defendants bear the initial burden of establishing that the medical treatment rendered was within v acceptable standards of care or that their actions did not injure plaintiff (see Doucett . . Strominger, 112 AD3d 1030, 1031 [3d Dept 2013] [citation omitted]). Dr. Kii;nble and AMC descrl.bing the facts in this burden ''through a physician's_ affi~vit or affirmation may satisfy ' . specific detail and opining that the care provided did not deviate from the applicable standard of " care"; or that any such deviation did not cause plaintiffs injury (Randall v Kingston Hosp., 13 5 ·AD3d_1100, -1101 [3d Dept 2016] [internal quotation marks and citations omitted])._ ·A defendant physician's own affidavit may also "'be sufficient to establish a prima facie entitlement to summary judgment where the affidavit is detailed, specific and factual in nature and does not assert in simple conclusory form that the physician acted within the accepted standards of, , . . . . . medical care"' (Su_ib v Keller, 6 AD3d 805, 806 [3dDept 2004], quoting Toomey v Adirondack Surgical Asso_c., 280 AD2d 754, 755 [3d Dept 2001]). If defendants meet ~eir burden, pla,intiff must rebut that showing on these elements to defeat summary judgment (see Fridovich v David, 188 AD2d 984,- 985 [3d Dept 19~2] [1,urden on plaintiff opposing s~ary judgment in.medical malpractice action is ."to establish not ~nly a deviation or departure from accepted practice but also the requisite nexus between the malpractice allegedly committed by defendant ... and the · injury"] [citations, brackets and internal quotation marks omitted]). 9 [* 9] 9 of 13 INDEX NO. 906540-16 FILED: ALBANY COUNTY CLERK 10/18/2018 01:20 PM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/18/2018 Deviation from the standard of care, and proximate cause may only be proven by the testimony of a competent expert, unless the issue is "one which is within t~e experience of and observation" of a lay factfiilder (see Lyons v McCauley, 252 AD2d 516, 517 [2d Dept 1998], lv denied92 NY2d 814 [1998]). Moreover, "[g]eneral allegations of medical malpractice, merely. conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [the] ... summary judgment motion" (Alvarez v I Prospect Hosp., 68 NY2d at 325; see also Snyder v Simon, 49 AD3d 954, 956 [3d Dept 2008] [plaintiff failed to rebut defendant's prima facie case when its expert affidavits did "not identify · or defipe th~ applicable standard ·of care, and fail[ ed] to adequately set forth both the manner in which [defendant] deviated from the standard of care in treating plaintiff and the requisite nexus between that alleged malpractice and the injuries to plaintiff']). However, in the case of medical malpractice, where causation is almost always a difficult issue, "plaintiff need do no more than offer sufficient evidence from which a reasonable person might conclude that it was more probable than not that the injury was caused by the defendant" (Johnson v Jacobowitz, 65 AD3d 610,613 [2d Dept 2009], lv denied 14 NY3d 710 [2010] [citation omitted]). With these standards in mind, I proceed to address the motion before me. '. . The crux of plaintiffs first and second causes of action against defendants is that Dr. Kimble was negligent in performing a laparoscopic procedure instead of a laparotomy, because the large size of the cyst displaced the plaintiffs internal anatomy to such an extent that the only - safe way to remove it was through an open ·surgery. Furthermore, plaintiff contends that, in electing to drain the cyst with a needle without being able to visualize the displaced anatomy, Dr. Kimble further deviated from the acceptable standard of care due to the increased risk of an . inadvertent injury to the adjacent anatomy. 1 Upon a review of defendants' submissions, I find that they have met their initial burden of establishing entitlement to summary judgment. Dr. Kimble is appropriately qualified as an expe_rt in obstetrics and gynecological medicine and surgery, and he opines to a reasonable degree of medical certainty, based upon his review of the relevant medical records and pleadings, that the treatment he rendered comported with good and acceptable medical practice and did not cause plaintiffs injuries. He further explains that plaintiffs injuries, to the extent they may have been caused by his laparoscopi~ procedure, are a known and accepted risk and the occurrence of such is not evidence of a departure from the accepted standard _of care (Kimble Aff 10 [* 10] 10 of 13 FILED: ALBANY COUNTY CLERK 10/18/2018 01:20 PM NYSCEF DOC. NO. 45 ~~ INDEX NO. 906540-16 RECEIVED NYSCEF: 10/18/2018 13-14). Moreover, Dr. Kimble's affidavit is supported by specific record evidence, and is not speculative or conclusory (see Toomey, supra [treating doctor's own affidavit explaining that patient's injury was a common complication during laparoscopic surgery, even when performed with appropriate surgical care, was sufficient to shift summary judgment burden to plaintiffs]). The burden therefore passes to plaintiff to rebut defendants' showing. To meet this burden, plaintiff also submits the affidavit of an appropriately qualified ~xpert in the relevant field. Plaintiffs expert offered an opiµion, to a reasonable degree of medical certainty, based on his review of the relevant medical records and pleadings, that the large 40-centimeter cyst displaced plaintiffs anatomy to such a degree that laparoscopic surgery was an inappropriate procedure (Pl Ex Aff~ 15). The expert further opines that Dr. Kimble deviated from the accepted standard of medical care in failing to perform a laparotomy, which would have enabled him to visualize the location of plaintiffs bladder and ureter, thus avoiding the injuries that occurred during the "blind" drainage of the cyst (Pl Ex Aff~~ 18-21). This affidavit sufficiently creates triable issues of material fact which must be resolved by a jury4 (see Toomey, supra [finding that expert's medical affidavit opining that defendant physician deviated from the_ accepted standards of care when performing laparoscopic surgery that resulted in plaintiffs injuries was sufficient to deny summary judgment]). On the issue of 9ausation, plaintiffs expert affidavit alone is sufficient to raise a triab_le issue of fact, as it states with specificity that the decision to proce~d laparoscopically created a "significant increase in the likelihood of inadvertent injury," and did in fact result in injury to plaintiffs bladder and right ureter (Pl Ex Aff~~ 19; 21).· In addition, Dr. Lynch testified that she believes that plaintiffs-bladder injury occurred during the operation that she and Dr. Kimble performed on plaintiff (Lynch Tr 54-55). This testimony is in direct conflict with that of Dr. Kimble, who is of the opinion that plaintiff did not suffer any injury during the procedures he performed (Kimble Tr 81-85, 92-93; Kimble Aff ~ 13). ·such contradictory testimony between the two physicians who performed the surgery in question, as well as between the parties' experts, raises a factual question as to the causes of action for negligence and medical · malpractice. Given that plaintiff has sufficiently rebutted defendant's prima facie case on the above bases, I need not address plaintiffs theory that Dr. Kimble also erred in not removing the tumor because there was a risk of malignancy. 4 11 [* 11] 11 of 13 INDEX NO. 906540-16 FILED: ALBANY COUNTY CLERK 10/18/2018 01:20 PM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/18/2018 I In regard to the cause of action for lack of informed consent, plaintiff must ultimately prove three things: (1) that the person providing the professional treatment failed to disclose alternatives thereto ·and did not inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in. the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if she had been fully informed, and (3) that the lack of informed consent was a proximate cause of the injury (see Foote v. Rajadhyax, 268 AD2d 745, 745 [3d Dept 2000]; see also Pub Health Law § 2805-d [3] [for a cause of acti~n to be established for lack of informed consent, it "must also be established that a reasonably prudent person in the patient's position would not have undergone the treatment or diagnosis if he had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought"]). · Defendants support their motion on this cause of action through Dr. Kimble's affidavit ,and deposition testimony indicating that he properly informed-plaintiff and her mother about the proposed laparoscopic procedure, as well as the availability of a laparotomy, along with the foreseeable risks and benefits of each (Kimble Tr 26-29; Kimble Aff ,I,I 8-9). Further, defendants show that plaintiffs mother signed two separate consent forms for ~he laparoscopic surgery (Mitchell Aff, Ex.Mat 19 and 148). This evidence establishes defendant's prima facie. entitlement to judgment as a matter of law dismissing this cause of action (see Zapata v Buftriiigo, 107 AD3d 977, _979-80 [2d Dept 2013] [defend~t made prima facie showing of entitlement to summary judgment on informed consent claim by submitting evidence r demonstrating that he properly infornied plaintiff about the procedure, the alternatives.thereto, and the reasonably foreseeable risks and benefits]). Plaintiff's_ submissions fail to contradict any of these assertions. · Indeed, both plaintiff and her mother, in deposition testimony submitted by defendants, indicated that they did not recall the specific discussio~s they had with Dr. Kimble and the other.AMC physicians and staff concerning the risks of the medical options offered to them (Plaintiff Tr 29-37; V. Tinoco Tr 1523). Further, neither the affidavit of plaintiffs expert nor-the affirmation of plaintiffs counsel's address this aspect of defendant's motion. As a result, plaintiff has failed to raise a triable issue · ) of fact on her cause of action based on lack of informed cqnsent (see Rivera v Anilesh, 32 AD3d 202, 204-205. [1st Dept 2006] [affirming grant of summary judgment on informed consent claim, 12 [* 12] 12 of 13 INDEX NO. 906540-16 FILED: ALBANY COUNTY CLERK 10/18/2018 01:20 PM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/18/2018 in part, based on plaintiffs failure to address issue in opposition papers]). Therefore, I will grant defendants summary judgment on this cause of action. Accordingly, it is hereby ORDERED that defendants' motion for summary judgment on plaintiffs first and second cause of action for negligence and medical malpractice is denied; and . it is further ORDERED that defendants' motion for summary judgment on plaintiffs third cau~e of action for lack of informed consent is granted. This constitutes the Decision & Order of the Court. This Decision & Order is being transmitted to the County Clerk for filing. The signing of this Decision ~d Order shall not . constitute entry or filing under CPLR Rule 2220, and counsel is not telieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry. ENTER. Dated: October 16, 2018 Albany, New York David A. Weinstein · Acting Supreme Court Justice ~.<JZ~~ Papers Considered: . . 1. Notice of Motion, dated June 15, 2018; Affirmation of Lia B. Mitchell, Esq. in Support of Summary Judgment Motion, dated June 15, 2018, with annexed exhibits; and Memorandum of Law, dated June 15, 2018; 2. Affidavit of David Kimble, M.D., sworn to on June 13, 2018; 3. · Affirmation of John A. DeGasperis, Esq. in Opposition to Summary Judgment Motion, dated August 3; 2018; and Physician's Affirmation,' dated August 3, 2018; and 4. Reply Affirmation of Lia B. Mitchell, Esq., dated August 16, 2018. 13 [* 13] !D\ \'b\.J<~ PB 13 of 13

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