Goldson v Mann

[*1] Goldson v Mann 2018 NY Slip Op 50358(U) Decided on March 15, 2018 Supreme Court, Bronx County Brigantti, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 15, 2018
Supreme Court, Bronx County

Gail Goldson, Plaintiff,

against

Ronald Mann, M.D., Defendant.



21551/2015E



Attorneys for Plaintiff: Law Office of Christopher P. DiGiulio

(William Thymius, Esq.)

Attorneys for Defendant: Pilkington & Leggett, P.C.

(Adam T. Brown, Esq.)
Mary Ann Brigantti, J.

The following papers numbered 1 to 5 read on the below motion noticed on July 14, 2017 and duly submitted on the Part IA15 Motion calendar of September 12, 2017:

Papers Submitted/Numbered

Defs' MSJ, Exhibits 1,2

Pls.' Aff. in Opp., Exh. 3,4

Defs' Reply Aff. 5

Upon the foregoing papers, the defendant Ronald Mann, M.D. ("Defendant") moves for summary judgment, dismissing the complaint of the plaintiff Gail Goldson ("Plaintiff") pursuant to CPLR 3212. Plaintiff opposes the motion.

I. Background

Plaintiff alleges that on October 30, 2014, during the course of an independent medical examination ("IME"), Defendant used excessive force while examining her shoulder and caused injuries. Prior to the IME, Plaintiff was allegedly injured in a work-related accident when she slipped on a wet floor. She allegedly sustained injuries to her left shoulder, left upper rib, and left hip. In May 2014, she complained to her treating physician, Louis Rose, M.D., of left shoulder pain. On May 29, 2014, Plaintiff underwent a left shoulder MRI that revealed a "mild strain or partial tear of the supraspinatus tendon with mild acrimioclavicular joint arthropathy." Dr. Rose performed a left shoulder arthroscopy on July 24, 2014. According to a post-operative note, Dr. Rose observed a partial tear to the glenoid and rotator cuff during this surgery. Dr. [*2]Rose thus performed a debridement wherein the frayed edges around the tear were trimmed. Dr. Rose also performed a synovectomy, or removal of the synovium, the lining around the shoulder.Post-surgery physical therapy records indicate that Plaintiff continued to have left shoulder pain and she followed up with her doctor. A physical examination of the left shoulder performed on October 14, 2014 revealed, inter alia, positive impingement. Plaintiff thereafter was seen by Defendant for an IME. Plaintiff's medical records state that at that time she was 100% impaired and had constant shoulder pain of 4-5/10. Plaintiff testified, however, that her shoulder was nearly healed by the time she was examined by Defendant.

According to Defendant's IME report, Defendant examined Plaintiff's shoulder and found, inter alia, positive impingement, and he opined that Plaintiff had still not reached maximum medical improvement. The report further states that upon completion of the examination, Plaintiff left the examining area stable and unchanged. Defendant testified at his examination before trial as to how he usually performed examinations of the shoulder. He testified that he generally does not push a patient's arm but may hold and/or support it. When testing for impingement, he would support the patient's arm as they lifted it, and if they had any complaints of pain in the vicinity of 90 degrees, that it is a positive impingement sign.

In support of this motion, Defendant submits an affirmation from Dr. Howard J. Levy, a board certified orthopedist. Dr. Levy states that there is no evidence that Defendant used excessive force during the IME and it is not unusual to elicit pain or discomfort from a patient during IME testing. He notes that both Defendant and Plaintiff's treating physician documented positive impingement sign, meaning that they both found that Plaintiff had experienced pain when her arm was lifted over her head.

Dr. Levy also examined Plaintiff's medical records and opines that there is no evidence that Plaintiff suffered any new injuries as a result of the IME. Plaintiff allegedly saw Dr. Rose soon after the IME and complained that pain in her shoulder had worsened. Plaintiff, however, only reported a pain level of 4/10, which was the same pain level she reported at her last office visit before the IME. Plaintiff thereafter reported increasing pain in the months that followed. Dr. Levy opines that if Plaintiff had actually suffered an acute injury at the IME, she would have experienced the worst pain immediately afterwards.

An MRI of Plaintiff's left shoulder performed on November 14, 2014 had an impression of "tendinosis, labral tear." Dr. Levy states that this report does not show any new injuries that did not exist prior to the IME. He notes that a labral tear was known to exist at the time of Plaintiff's July 2014 arthroscopic surgery. The tear was simply debrided and not repaired, therefore it is not surprising that it was still present on the November 2014 MRI.

On March 26, 2015, Dr. Rose performed a second arthroscopic surgery on Plaintiff's left shoulder. Dr. Levy reviewed the post-operative report which once again noted a partial tear of the left glenoid labrum, partial tear of the left rotator cuff, and hypertrophic synovium. Dr. Levy states that this report is identical to the July 2014 post-operative report. Dr. Levy avers that if the second report is accurate, then Dr. Rose performed the identical surgery that he performed eight months earlier. Dr. Levy states that there is no evidence that the tears in the shoulder had worsened, aggravated, or exacerbated as a result of Defendant's IME, and there was no evidence of any new injuries. Dr. Levy notes that the report also stated that Dr. Rose performed another synovectomy, which is unlikely considering the fact that the synovium was already removed on [*3]July 24, 2014. Dr. Levy concludes that Dr. Rose's records are entirely unreliable, but even if they are taken at face value, they do not demonstrate that Plaintiff sustained an injury as a result of the IME.

Defendant contends, initially, that Plaintiff improperly plead this action as for ordinary negligence when it is in fact a medical malpractice action. Defendant argues that his submissions establish, prima facie, that he did not deviate from any accepted standard of care, and that Plaintiff's injuries were not caused by the IME. Defendant also argues that he is entitled to dismissal of Plaintiff's punitive damages claims because the conduct as alleged does not warrant the imposition of such damages.

In opposition to the motion, Plaintiff initially asserts that the motion must be denied because it relies entirely on an affirmation from an expert who was not previously disclosed, and whose affirmation fails to comply with CPLR 3101(d). Plaintiff further contends that the expert affirmation cannot be considered because he improperly relies on medical records that are not in admissible form. Plaintiff asserts that, accordingly, Defendant has failed to provide evidentiary proof in admissible form so as to warrant summary judgment in his favor.

Plaintiff further argues that the motion must be denied because Defendant has failed to eliminate all triable issues of fact as to (1) whether he deviated from the standard of care during the IME, and (2) whether his conduct proximately caused injuries. Plaintiff notes that, at his deposition, Defendant did not remember this particular patient or the IME at issue, and he fails to lay a sufficient foundation to provide "habit" evidence concerning what he would have done.

Plaintiff argues that even if habit evidence is considered, Plaintiff's own deposition testimony raises triable issues of fact as to what was done during the IME. Plaintiff testified that she was examined twice by Defendant: once in September 2013 without incident, and then again in October 2014. The first time, Defendant did not touch her and there was a female present in the room the entire time. The second time, there was no one else in the room with them. During the examination, Defendant allegedly put his wrist on Plaintiff's hand, then took her elbow and pushed her arm back. When he did so, Plaintiff screamed in pain and rolled over. Plaintiff testfied that if Defendant had not been standing in front of her, she would have fallen to the floor. Defendant then allegedly went over to his desk, wrote something on some papers, and told her to go home and continue therapy. In an affidavit submitted in opposition to the motion, Plaintiff states that Defendant said "I'm sorry I didn't mean to do it that hard."

Plaintiff asserts that there are triable issues of fact as to Defendant's claim that he did not inflict any injury at the IME. Plaintiff points to her own testimony and affidavit alleging that, after the IME, she experienced pain in different locations than before and sought additional treatment from Dr. Rose. An "office note" from Dr. Rose recorded shortly after the IME states that Plaintiff's symptoms worsened after the IME when the doctor "forcefully twisted her shoulder during the exam." A "work note" dated November 19, 2014 states that Dr. Rose is requesting authorization for further left shoulder arthroscopy, "due to a new labral tear." Another office note dated August 1, 2017 states in relevant part that Dr. Rose discussed that Plaintiff needed a second surgery because she suffered a second injury. Plaintiff also states in her affidavit that less than one month after the IME, she lodged a written complaint against Defendant with the New York State Department of Health, describing what happened during the IME. Plaintiff further asserts that between the time of her first arthroscopic surgery and the IME, [*4]she never had any intervening accidents or injuries involving her left shoulder or arm.

Plaintiff argues that Defendant's expert did not point to any actual evidence to support his conclusion that the shoulder injuries addressed at the time of the second surgery were the same injuries addressed in the first. Defendant's expert never examined Plaintiff, and he noted that her pre-IME MRI did not show any rotator cuff tears. She further submits an affirmation from a medical expert, Dr. David Lent, who asserts inter alia, that if Defendant had conducted the IME as described by Plaintiff, it would constitute a deviation from good and accepted medical practices and was a substantial factor in causing Plaintiff's injuries. Plaintiff further asserts that her punitive damages claim should not be dismissed because it is for the jury to decide whether the conduct at issue was "reckless."

In reply, Defendant asserts that his expert affirmation is admissible even though the expert was never previously disclosed, and the expert properly relied on Plaintiff's own unsworn medical records. Substantively, Defendant asserts that Plaintiff's submissions — including the affirmation from her expert — fail to raise an issue of fact. Defendants assert that Plaintiff's affidavit cannot be considered because it is self-serving and contradicts her prior deposition testimony, and improperly attempts to "bootstrap" a hearsay complaint she allegedly made to the Department of Health. Even if the affidavit were to be considered, Defendant argues that it fails to raise an issue of fact because it is not expert medical evidence. With respect to the notes from Dr. Rose's office, Defendant asserts inter alia, that they do not constitute competent evidence linking any "new labral tear" to the IME. Defendant further notes that Plaintiff's counsel's own contentions do not meet the standard of evidence necessary to oppose summary judgment. Finally, Defendant re-iterates his position that punitive damages are unwarranted in this case.

II. Standard of Review

To be entitled to the "drastic" remedy of summary judgment, the moving party "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 from the case." (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 AD3d 490 [1st Dept. 2012]). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 NY3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 NY2d 738 [1993]).

III. Applicable Law and Analysis

Defendant correctly states that this action sounds in medical malpractice, not ordinary negligence (see Bazakos v. Lewis, 12 NY3d 631 [2009]). A medical malpractice defendant moving for summary judgment meets their initial burden by establishing that either (1) they did not deviate from accepted medical practice, or (2) that the alleged deviation was not a proximate cause of the plaintiff's injury or damages (see Bacani v. Rosenberg, 74 AD3d 500, 501 [1st Dept. 2010], citing Mattis v. Keen, 54 AD3d 610, 611 [1st Dept. 2008]).

At the outset, the affirmation from Dr. Levy is admissible despite the fact that the expert was not previously disclosed. The CPLR "does not require a party to retain an expert at any particular time" (CPLR 3101[d]; Kimberlee M. v. Jaffe, 139 AD3d 508, 509 [1st Dept. 2016], quoting LaMasa v. Bachman, 56 AD3d 340, 340-41 [1st Dept. 2008]; see also Rivers v. Birnbaum, 102 AD3d 26 [2nd Dept. 2012]). Furthermore, Plaintiff was not prejudiced by the allegedly late disclosure as she obtained adjournments of this motion, was able to submit her own expert affirmation in opposition. Dr. Levy also adequately established his qualifications by stating that he is a licensed physician and board-certified by the American Board of Orthopaedic Surgery. Even if this was not enough, an expert's failure to explain their qualifications only goes to the weight of their testimony, and not its admissibility (see Espinal v. Jamaica Hosp. Med. Ctr., 71 AD3d 723, 724 [2nd Dept. 2010]).

Plaintiff argues that Dr. Levy's affirmation fails to carry Defendant's initial summary judgment burden because it improperly relies on medical records that are unsworn or otherwise not in admissible form. However, defendants are permitted to rely upon a plaintiff's own medical records to satisfy their burden of demonstrating entitlement to summary judgment (see Newton v. Drayton, 305 AD2d 303 [1st Dept. 2003]), thus Dr. Levy's affirmation is admissible even though he relied on inter alia, unsworn medical records from physical therapy and from Plaintiff's treating physician, Dr. Rose (see Mitchelle v. Calle, 90 AD3d 584, 585 [1st Dept. 2011], citing Pommells v. Perez, 4 NY3d 566, 576 [2005][footnote 5]). The cases cited by Plaintiff on this issue are distinguishable because they all concern the propriety of a plaintiff's use of unsworn medical records in opposing summary judgment (see Lazu v. Harlem Group, Inc., 89 AD3d 435, 435-36 [1st Dept. 2011]; Clemmer v. Drah Cab Corp., 74 AD3d 660, 661 [1st Dept. 2010]; Dembele v. Cambisaca, 59 AD3d 352, 352 [1st Dept. 2009]).

On the merits, Dr. Levy's affirmation fails to establish, prima facie, that Defendant did not deviate from accepted medical practice when he examined Plaintiff. Dr. Levy referred to Defendant's testimony concerning "how he performed the examination of the shoulder," where he testified inter alia that "he does not push the patient's arm" when measuring forward flexion, and he only may place his hand on their wrist or forearm for support. Defendant testified that when measuring impingement, "he supports the patient's arm as they lift it" and if they have pain in the vicinity of 90 degrees, then it is positive impingement sign. Dr. Levy opined that "[t]here is no evidence that [Defendant] used excessive force at any time" and "it is not unusual to elicit pain and discomfort from plaintiff" when testing for impingement. Dr. Levy, however, does not discuss the fact that Defendant testified that he had no recollection of Plaintiff or of her medical examination (see Def. EBT at 15, 16). Even accepting Defendant's testimony concerning his usual habit or practice in performing shoulder examinations, Dr. Levy ignored Plaintiff's testimony wherein she stated that Defendant "took his hand — his hand, put in on my wrist, and then took my elbow and pushed my arm back. I screamed out in pain and rolled over" (Pl. EBT [*5]at 139:13-24). This testimony conflicts with Defendant's testimony wherein he stated that he does not push a patient's arm but would only provide "support" while testing for impingement. Plaintiff also testified that she was examined twice by Defendant, first in September 2013 then again in October 2014 (see Pl. EBT at 73-74). The first time, Defendant did not touch her during the exam (id). During the second IME, Defendant manually manipulated her arm (id. at 138, 139). Plaintiff's testimony must be afforded all favorable inferences on summary judgment ( see Graham v. Columbia-Presbyterian Medical Center, 185 AD2d 753, 755 [1st Dept. 1992]), and Dr. Levy does not opine that the movement as described by Plaintiff conformed with accepted medical practice. The assertions of a medical expert who fails to address essential factual allegations are insufficient to establish that a defendant is entitled to summary judgment (see Wasserman v. Carella, 307 AD2d 225, 226 [1st Dept. 2003]). Furthermore, in opposition to the motion, Plaintiff submits an affidavit wherein she states, among other things, that Defendant "forcefully and quickly pushed and raised [her] left arm up and back" and "pushed and raised [her] arm to fast that [her] elbow was pushed past [her] head and [her] fingers loudly struck the examination table" (Pl. Aff. At Par. 9-10). Contrary to Defendant's contentions, the statements made in the affidavit are admissible because they do not contradict her deposition testimony (see Kalt v. Ritman, 21 AD3d 321, 323 [1st Dept. 2005]), and are not "tailored" to oppose summary judgment.

After close review of the submissions, this Court also finds that there are triable issues of fact as to whether Defendant's conduct aggravated, exacerbated, or otherwise caused additional, different injuries to Plaintiff's left shoulder. The operative reports reveal, inter alia, the existence of partial tears of the glenoid/rotator cuff that both before and after the subject IME, which were addressed surgically on two occasions. Plaintiff reported to Dr. Rose that the pain in her left shoulder had intensified following the IME. In an affidavit, she further claims that the pain was felt in a different location than before the IME. The record contains office notes reflecting Plaintiff's conversation with Dr. Rose, wherein Dr. Rose writes that the IME doctor "forcefully twisted [Plaintiff's] shoulder." Dr. Rose thereafter issued a work note reporting Plaintiff's need for a second arthroscopy due to a "new labral tear." In August 2017, Dr. Rose states that he spoke to Plaintiff regarding the need for a second surgery due to the "second injury." This note appears to be a recitation of Plaintiff's prior treatment and not a discussion of possible future treatment.

Dr. Levy offers little support for his claim that these shoulder tears were the same and not worsened by the IME. In any event, the above submissions in opposition raise triable issues of fact. Dr. Levy opines that the post-IME MRI only revealed a labrum tear that was already known to exist. However, he offers no objective proof that the labrum tear seen in that MRI was indeed the same tear that was debrided during the July 2014 surgery. Dr. Levy does not directly compare the pre and post-IME MRI findings to support his contention that the November 2014 MRI did not show new injuries. Dr. Levy states that, even when accepting the medical records at face value, the post-IME injuries were degenerative in nature and pre-existed the IME. However, he points to no objective medical proof in the MRI studies or operative reports, aside from Plaintiff's subjective complaints, to conclusively demonstrate that the post-IME shoulder condition was not traumatically induced (see Frias v. James, 69 AD3d 466 [1st Dept. 2010][opinion attributing injuries to degeneration were conclusory where it was advanced [*6]without any elaboration and without any reference to degeneration in the MRI reports reviewed]).Dr. Levy also points to no objective medical evidence conclusively showing that Dr. Rose unnecessarily addressed the same exact labral tear during the 2014 and 2015 surgeries. The credibility and reliability of the operative reports is something that must be addressed at trial and cannot be resolved on a summary judgment motion. In addition, Dr. Levy's affirmation is entirely premised upon his belief that, contrary to Plaintiff's testimony, Defendant did not use any excessive force in manipulating Plaintiff's injured shoulder during the examination. Upon review of the medical submissions and after affording Plaintiff all favorable inferences, there exist issues of fact as to whether the IME caused new injuries in the left shoulder that required a second arthroscopic surgery that took place approximately eight months after Plaintiff's first arthroscopy. Defendant failed to satisfactorily establish that the new surgery was completely unwarranted or unrelated to any new or different injury. The Court reaches this conclusion even without considering the affirmation of Plaintiff's proposed expert Dr. David Lent, which is overly conclusory and fails to make any specific reference to Plaintiff's clinical or diagnostic findings (see Gaudio v. Gonzalez, 117 AD3d 490 [1st Dept. 2014]).

Defendant, however, established entitlement to summary judgment with respect to Plaintiff's punitive damages claims. Such damages are available only where there is "manifest evil or malicious conduct beyond and breach of professional duty" or "or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton" (see Dupree v. Giugliano, 20 NY3d 921, 924 [2012][internal quotations omitted]). The circumstances here do not warrant imposition of punitive damages. Even accepting Plaintiff's allegations as true, Defendant apologized after alleging manipulating her shoulder, as there is no evidence that Defendant wilfully or wantonly caused Plaintiff's injuries.

IV. Conclusion

Accordingly, it is hereby

ORDERED, that Defendant's motion for summary judgment is granted only to the extent that Plaintiff's punitive damages claims are dismissed with prejudice, and it is further,

ORDERED, that the remaining branches of Defendant's motion for summary judgment are denied.

This constitutes the Decision and Order of this Court.

Dated: March 15, 2018

_________________________________

Hon. Mary Ann Brigantti, J.S.C.