Halloran v Kiri

[*1] Halloran v Kiri 2018 NY Slip Op 50600(U) Decided on April 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 17, 2018
Supreme Court, Bronx County

Patricia Halloran, as Administratrix of the Estate of KRISTEN HURLEY, deceased, Plaintiff,

against

Ajay N. Kiri, M.D., et als., Defendants.



21037/2015E



Counsel for Plaintiff: Jacoby & Jacoby, P.C. (Melvin Jacoby, Esq.)

Counsel for Defendants: C. Cardillo, P.C. (Chris Cardillo, Esq.)
Mary Ann Brigantti, J.

The following papers numbered 1 to 6 read on the below motion noticed on July 5, 2017 and duly submitted on the Part IA15 Motion calendar of September 25, 2017:

Papers Submitted Numbered

Defs.' Notice of Motion, Exhibits 1,2

Pl.'s Opp., Exhibits 3,4

Defs,' Reply Aff., Exhibits 5,6

Upon the foregoing papers, the defendants Ajay N. Kiri, M.D. ("Kiri"), Optimal Health Medical, P.C. ("Optimal"), Functional and Integrative Medical Health Care, P.C. ("Functional"), and Advanced Integrative Medical, P.C. ("Advanced")(collectively referred to as "Defendants") move for summary judgment, dismissing the complaint of the plaintiff Patricia Halloran, as the Administratrix of the Estate of Kristen Hurley, deceased ("Plaintiff"), pursuant to CPLR 3212. Plaintiff opposes the motion.

Plaintiff's decedent Kristen Hurley ("Decedent") died on October 6, 2013 (Pl. Complaint at Par. 37). According to the autopsy report performed by the Nassau County Office of the Medical Examiner, Decedent died as a result of an acute intoxication by the combined effect of fentanyl, heroin, oxycodone, and alprazolam. Plaintiff alleges that her Decedent suffered a drug overdose and died in part because defendant Kiri negligently prescribed excessive doses of opioid-based controlled substances as well as Xanax without taking a proper medical history or discovering her pre-existing addiction to prescription drugs as well as illicit drugs. Plaintiff's complaint specifically alleges that during the course of treatment, Kiri "knew or should have known that persons addicted to prescription pain medications and controlled substances being used both alone and in combination with other drugs are prone to overdose, which could lead to death" (Complaint at Par. 53), and that Kiri "entered into a personal, intimate relationship with [Decedent] while she was under his care as a patient, and this contributed to the unprofessional, reckless and irresponsible care that she was receiving from him" (id. at Par. 54). The complaint [*2]further alleges that Kiri "failed to abide by accepted medical standards" in treating Decedent, because he, inter alia, failed to administer medications in a prudent and medically-accepted manner; failed to timely and properly diagnose and treat Decedent; failed to appreciate Decedent's condition and failing health; failed to take and/or record a proper and adequate history; failed to properly utilize appropriate pain management techniques, and Kiri was otherwise professionally reckless, wanton, willful and grossly negligent in his care of Decedent (id at Par. 55). Plaintiff's complaint contains causes of action for medical malpractice, wrongful death, and lack of informed consent.

Defendants now move for summary judgment. 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]).

In support of the motion, Defendants submit medical records, the pleadings, and affirmations from Kiri and an expert witness. A medical malpractice defendant moving for summary judgment meets his initial burden by establishing that either (1) he did not deviate from accepted medical practice, or (2) his 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]). In order for a defendant to satisfy its burden of proof, the defendant must present competent evidence that addresses the essential allegations in the complaint and in the bill of particulars (see Roques v. Nobel, 73 AD3d 204, 206 [1st Dept. 2010]).

In this case, Defendants' failed to carry their initial summary judgment burden. First, where a defendant claims that he or she did not depart from accepted medical practice, the defendant must specify precisely how a patient's treatment was proper and must "elucidate the standard of care" (see Ocasio-Gary v. Lawrence Hosp., 69 AD3d 403, 403 [1st Dept. 2010]). The defendant must present evidence explaining "what defendant did and why" (id., citing Wasserman v. Carella, 307 AD2d 225, 226 [1st Dept. 2003]). The affirmations from Kiri, Defendants' expert, and the medical records annexed to the moving papers, fail to comply with these requirements.

Kiri states in part that "[d]uring the period of treatment, I never prescribed [Decedent] any excessive or unnecessary medications. The dosages of medicine provided to [Decedent], over the course of her treatment by me, were, based upon my diagnosis (set forth above) derived [*3]from my interactions with [Decedent] as well as her medical history (actual and provided by [Decedent]). In addition to her chronic pain, [Decedent] was noted to have a moderate to high degree of tolerance to opioid pain medications from years of use. As such, the medications I prescribed were required to treat [Decedent], an opioid tolerant patient" (Kiri Aff. at Par. 13).

Crucially, Kiri does not explain what the proper dosage of opioid medication would be for a patient who had three prior arthroscopic surgeries and was "actively receiving pain management medications to control her chronic pain" prior to coming under his care (Aff. at Par. 11). Kiri describes Decedent as "an opioid tolerant patient," but he fails to specifically cite to anything in her medical records which led him to believe that was true. Kiri's initial report dated August 31, 2012 only states that Decedent "has been on pain medication since 2007 with development of tolerance and resultant need for high doses of pain meds." Kiri does not explain the applicable standard of care when prescribing opioid-based pain medication to a patient who has been on pain medication for approximately five years and apparently now requires "high doses."

Kiri describes what he did during the course of Decedent's treatment however he fails to adequately set forth whether or not this conduct comported with generally accepted medical practice, aside from his conclusory statements asserting as much. Notably, Kiri claims that the prior treating physician "did not respond to [his] request," for Decedent's medical records, but Kiri also asserts that he did not need to obtain Decedent's prior physician's medical records because Decedent "had provided [him] with and [he] had reviewed the numerous medical records supplied directly by [Decedent], and those records "collaborated the information she provided to [him]" (id. at Par. 15[a]). Kiri does not state that this practice — relying entirely on medical records and medical history provided by a new patient, with no successful follow up with prior doctors to obtain treatment records — conformed with good and accepted standards of care.

Kiri states that during his course of Decedent's treatment, she was "suffering from moderate to severe chronic anxiety and [he] was temporarily managing her anxiety medications as she sought the care of a new psychiatrist" (Kiri Aff. at Par. 8). He later describes Decedent's anxiety as "stable and appropriately treated with Xanax/alprazolam." Kiri also alleges that he encouraged Decedent on multiple occasions to see a psychiatrist to further manage her anxiety and to treat any post-traumatic stress from a self-reported sexual assault that occurred in February 2013. Decedent said that she could not find a psychiatrist that took her insurance, she did not want to report the sexual assault, and she did not report any "significant post-traumatic stress" or "exhibit[] other similar adverse signs from the sexual assault" on office visits subsequent to February 2013 (Aff. at Par 15[e]). However, Kiri later states that during the sexual assault, Decedent had suffered an acute aggravation of her left shoulder injury, and therefore Kiri "temporarily increased her opioid dose for several months to help her achieve better pain control of her aggravated injury." Kiri does not assert whether this increased dosage was appropriate under the circumstances or comported with good practice in light of the medical record dated February 22, 2013 where he describes Decedent as "emotionally distraught, but improved from several days ago." Furthermore, while Kiri states in his affidavit that Decedent did not exhibit adverse signs following the February 2013 sexual assault, his records also indicate that at a June 2013 visit, Decedent reportedly "ran out of xanax, is having a panic attack," and she "is asking for an emergency Rx for xanax until she obtains appt with psychiatrist." The record indicates [*4]that Kiri gave her a refill on that date. Kiri's affidavit fails to address this interaction or indicate whether or not this conduct conformed with accepted standards of medical care.

Kiri claims that during his treatment of Decedent, he did not know, or have any reason to know or suspect that Decedent was becoming and/or addicted to any illicit or prescription medications or controlled substances. He claims that Decedent had been using opiate pain medications for several years prior to coming under his care, and she reported no history of prior adverse effects or misuse. However, as noted supra, Kiri does not explain whether or not it was accepted practice to rely entirely on a patient's own statements and records provided by her before deeming it safe to commence a treatment plan that included opioid-based prescription drugs and Xanax. Kiri does not explain whether a physician in his position should have engaged in some sort of due diligence before beginning such a course of treatment. Kiri states that when he began treatment on August 31, 2012, Decedent's point of care urine toxicology results indicated appropriate use of the pain medications and "no use of other illicit substances." Kiri's office notes, however, do not indicate that any urine toxicology test was actually conducted at that time. Defendants make no specific reference to the medical record or exhibit showing those test results. Moreover, the August 31, 2012 initial office visit report contains a note: "[i]llicit drugs: +marijuana use - on/off," and the report dated January 13, 2013 states "recent urine toxicology screen appropriate but noted to be +for THC" and "pt to stop using marijuana immediately." The report from February 22, 2013 also says "recent urine tox screen + for xanax, opiates and THC." Thus, the evidence annexed to the motion conflicts Kiri's assertion that Decedent indicated no use of other illicit drugs (see Aff. at Par. 19 and 26).

Kiri states that he wanted to not only treat the pain but also help cure the underlying cause of it, and therefore he prescribed self-directed and office based physical therapy rehabilitation. When Decedent's insurer refused to cover physical therapy, he "continued to recommend and teach her home exercises that she could realistically perform on her own," and he offered acupuncture and other treatments (Kiri Aff. at 15[d]). He says that Decedent "reported improvements in her pain level, health and overall functionality with her multi-disciplinary treatments" (id.). Kiri, however, makes no specific reference to his medical records with respect to any of the above statements. Further, his records annexed to the motion are vague and inconsistent. The record from December 2012 indicates a recommendation for a "trial of physical therapy when pain level improved," while the record from the previous month directs that Decedent "continue manual pain modalities and physical therapy..." (emphasis supplied). Later records have a similar inconsistency. The record dated April 18, 2013 states that Decedent was "supposed to start PT but high deductible and unable to afford," however the August 9, 2013, states in part that Decedent is to "continue physical therapy."

Kiri claims that during his treatment of Decedent, he did not know, nor did he have any reason to know or suspect that Decedent was becoming addicted and/or was addicted to illicit drugs or prescription pain medications, as his in-person interactions and examinations of her over the course of treatment indicated that no such addiction existed. However, without an adequate explanation as to what constituted the generally accepted standard of care, including whether Kiri should have engaged in due diligence in acquiring Decedents prior treatment records to take an adequate medical history, as alleged in the Complaint (at. Par. 55), little deference may be afforded to these statements. Kiri states that Decedent's point of care urine toxicology from [*5]August 31, 2012 "indicated appropriate use of opiate pain medications and no other illicit substances." Aside from the fact that the test results are not actually included in the motion papers, and the August 31, 2012 record does not indicate whether such a test was actually performed, Kiri does not state that he was entitled to rely on the results of such a test, and the statements of Decedent herself, before commencing a course of prescription pain medication treatment. Kiri's further statements that Decedent "pain level was appropriately treated with adequate doses of opiate pain medications" is unsupported with a reference to any generally accepted standard of care.

On the issue of informed consent, Kiri asserts that he "warned [Decedent] in depth about the misuse of any of her medications" and as a part of his efforts to ensure her proper use of the medications, he had her review and execute "on numerous occasions, a Pain Management Opioid Agreement" that explained the rules patients had to follow in order to receive opioid prescriptions. However, Kiri only annexes two such agreements to his affidavit (Defs.' Exhibit "B"). The first is dated February 22, 2013, which is approximately six months after he started treating Decedent, and the second is dated September 3, 2013, or approximately one month prior to Decedent's death. Furthermore, even accepting the fact that Defendants obtained these signed consent forms from Decedent, the record presents occurrences where Kiri himself did not honor all of the conditions of the "agreement" during the course of treatment. The agreement states that "[l]ost, stolen, or damaged medication will not be replaced" (Pain Management Opioid Agreements at Par. 8), yet according to Kiri's own records, he immediately replaced Decedent's medication that she reported as "stolen" in September 2012 with a prescription for morphine and a lower dose of Oxycodone (Kiri Records dated September 24, 2012, October 16, 2012). This raises issues of fact as to Kiri's credibility and whether or not Decedent was properly counseled as to the material risks and benefits of commencing opioid based pharmacological treatment, thus precluding summary judgment on the issue of informed consent (CPLR 4401-a; Public Health Law 2805-d[1] and [3]).

In sum, Kiri failed to carry his burden of demonstrating that his conduct comported with the applicable standard of care, because he failed to "specify the acceptable standards of medical care applicable to him at the time of the claimed malpractice, and failed to explain how he did not deviate or depart therefrom" (Ross-Germain v. Millenium Medical Services, P.C., 144 AD3d 658, 660 [2nd Dept. 2016]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). Kiri failed to adequately explain why he did not obtain Decedent's complete prior medical records and history despite acknowledging that she was on medication for approximately five years prior, why the prescriptions that he wrote for Decedent comported with the applicable standard of care, why he felt it was appropriate to write a prescription for xanax even though Decedent had yet to consult with a psychiatrist, or why he maintained the dosages for Decedent throughout the course of treatment even though, as he claims, "[h]er overall health was improved in August and September of 2013" and she seemed to be "more physically fit and in less pain than when she began" treatment in August 2012. Kiri, thus, failed to adequately explain "what [he] did and why" and thus failed to demonstrate the absence of a deviation from the accepted standard of care (see Ocasio-Gary v. Lawrence Hosp., 69 AD3d 403, 404; Wasserman v. Carella, 307 AD2d 225, 226). Moreover, Kiri failed to address the internal inconsistencies in his medical records outlined above, which raises credibility questions and preclude the granting of summary [*6]judgment (see Dallas-Stephenson v. Waisman, 39 AD3d 303, 306 [1st Dept. 2007]). Furthermore, Kiri failed to address the allegations in the complaint that he engaged in an inappropriate personal relationship with Decedent during the course of treatment that "contributed to the unprofessional, reckless and irresponsible care that [Decedent] was receiving from him" (Complaint at Par. 54).

The affirmation from Defendants' expert, Dr. Alexander Weingarten, M.D., is similarly deficient because the expert fails to specify the accepted standard of medical care applicable to these defendants or explain how defendants did not deviate from that standard (see Ocasio-Gary v. Lawrence Hosp. and Ross-Germain v. Millenium Medical Services, P.C., supra). He makes no comment on whether Kiri should have obtained Decedent's complete medical records prior to prescribing opioid-based drugs. He states that "the dosing of the prescribed medications could not have caused her death as they were well within the guidelines of safe dosing for a patient with chronic pain issues," but the expert does not specifically state what those guidelines are. Accordingly, without knowing what is expected of medical professionals in Kiri's position, it cannot be determined whether, as the expert claims, Kiri "surpassed" the standard in treating Decedent.

Defendants alternatively assert that their negligence, if any, was not a substantial cause of Decedent's injuries, as her unknown use of heroin was a substantial and superceding cause of her death. The existence of "an intervening act which is 'not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct' may well be a superceding act which breaks the causal nexus" between that conduct and a plaintiff's injury (see Lynch v. Bay Ridge Obstetrical & Gynecological Assoc., 72 NY2d 632, 636 [1988] [internal citations omitted]). The Court of Appeals has however cautioned that whether an act is foreseeable in the normal course of events is generally subject to varying inferences presenting issues of fact for the fact finder to resolve (id.; see also Polanco v. Reed, 105 AD3d 438, 439 [1st Dept. 2013] [ "issue of whether a doctor's negligence is more 'likely than not a proximate cause of [a plaintiff's] injury' is usually for the jury to decide"]).

With respect to this issue, Kiri's affidavit is conclusory and insufficient to carry Defendnats' summary judgment burden. As noted supra, Kiri failed to demonstrate that he did not deviate from accepted practice when he did not obtain Decedent's complete medical history. Therefore, Kiri cannot competently allege that he had no reason to know or suspect that Decedent was "becoming and/or was addicted to any illicit drugs, prescription pain medications or controlled substances..."' Kiri also fails to submit the text message exchanges he references in paragraphs 31 and 33 of his affidavit. Furthermore, Kiri's opinion that the autopsy report alone demonstrates that "the predominant cause of [Decedent's] death was heroin" is stated in "the most conclusory of terms" and is insufficient to establish a lack of causal nexus between his treatment and Decedent's addiction and subsequent death (see LeMarie v. Kuncham, 102 AD3d 659, 660 [2nd Dept. 2013]).

Dr. Weingarten states that the misuse of illicit drugs and other non-prescribed medications by Decedent were the proximate cause of Decedent's death. He states "it is undeniable that heroin was the most substantial factor in and resulted in the death of [Decedent] and the other illicit drugs in her system certainly contributed to her death," however this statement is unsupported by references to scientific data or analysis (see Abalola v. Flower [*7]Hosp., 44 AD3d 522, 522 [1st Dept. 2007]). Dr. Weingarten also states that "medical records provided during discovery" indicated that Decedent presented to the emergency room with swollen legs, and the expert states that he believed that "the swollen legs were most likely caused by an overuse of opioids: to wit, heroin causing bone marrow suppression" (Weingarten Aff. at Page 3). First, the expert does not provide the medical record that he is referring to or the date that Decedent allegedly reported to the hospital. Next, this assertion appears to contradict the statement in Dr. Kiri's affidavit wherein he states that "[Decedent] did not show any physical signs, which would give any indication that she was addicted to illicit drugs, or that she was misusing her prescribed medications" (Kiri Aff. at 29). Kiri's records indicated, among other things, that he performed a physical examination of Decedent at each visit. While Dr. Weingarten states that the hospital records "serve as strong anecdotal evidence that [Decedent] was adept at hiding her misuse of opioids," he does not comment on whether Kiri should or could have discovered her swollen legs during the course of his physical examinations during treatment. Defendants' counsel statement that Decedent "cleverly knew how to manipulate blood and urine tests and continuously lied about her use of illegal drugs" is without probative value and unsupported by any specific citation to the record. Dr. Weingarten also states that Decedent "clearly lied to all of her treating physicians, even her opthalmologist, by not admitting to any of them (not just Dr. Kiri) that she had a heroin addition." Again, however, the expert does not state whether or not Kiri had a duty to perform due diligence into Decedent's medical history to discover possible addiction issues before prescribing opioid-based medication. Accordingly, the expert fails to adequately support his contention that Decedent's death cannot be attributed to any deviation of the standard of care by Kiri.

Defendants cannot use affidavits submitted in reply to rectify their deficient initial showing (see Ritt by Ritt v. Lenox Hill Hosp., 182 AD2d 560, 562 [1st Dept. 1992]). By failing to carry their initial burden of proof, Defendants' motion must be denied "regardless of the sufficiency of the opposing papers" (see Winegrad v. New York Univ. Medical Center, 64 NY2d at 853).

Even assuming arguendo that Defendants satisfied their initial summary judgment burden on the issue of whether Kiri deviated from accepted standards of medical care, and whether those deviations were a proximate cause of Decedent's medical issues and subsequent death, Plaintiff's submissions in opposition raise triable issues of fact. Plaintiff submits Plaintiff's medical records and an affirmation from her expert, Dr. David Dynof, a licensed physician who practices pain management and orthopedics. Dr. Dynof states, among other things, that physicians seeking to prescribe controlled substances as a part of a treatment plan should, among other things, verify what Decedent, as his patient, is telling him, and should obtain prior medical records in order to formulate a comprehensive treatment plan. In this case, Kiri failed to adhere to the standard of care by failing to obtain records from Dr. Robert Carter, a treating physician who Kiri knew about. The records from Dr. Carter, submitted along with the opposition papers, indicate that Decedent continued to ask for opioid-based pain medications following her three shoulder surgeries, and as of November 2010, Decedent appeared to be completely comfortable and not in significant pain. Dr. Carter's records reveal that in August 2010, Decedent "repeatedly requested narcotic analgesic rx" from him, and she was firmly told that he could not do this as the doctor was attempting to wean her off of the medications permanently. Dr. Carter adds that Decedent [*8]was given a list of other pain management physicians "and also various inpatient detoxification centers." In a notation dated November 16, 2010, Dr. Carter states that Decedent called his office crying, "saying how she now admits that she is taking her narcotics analgesics at a greater frequency and doses than we absolutely agreed to preoperatively," and she wished for more medication. At that time, she was "emphatically told" that Dr. Carter could not do this. At her final visit with Dr. Carter on November 30, 2010, Decedent again asked for more pain medication than prescribed.

Dr. Dynof notes that following treatment with Dr. Carter, Decedent was treated by Comprehensive, a practice where Kiri's expert, Dr. Weingarten, is a partner. The records from Comprehensive indicate that Decedent was a "referral" from Dr. Carter. Decedent was told at her initial visit, dated November 24, 2010, that no controlled substances would be provided at that time, that her prior prescription records would need to be obtained, and that if controlled substances were to be prescribed, it would be with the goal to decrease them over time as her shoulder healed. Plaintiff's expert states that Comprehensive exerted control over the pain medication prescriptions that followed. Decedent allegedly asked for more medication than prescribed. However, on Decedent's next-to-last visit with Comprehensive in April 2011, it is noted that Comprehensive was seeking medical records from Decedent's Florida doctor, and Decedent would have "no new appt. until medical records are presented." Decedent never presented again to Comprehensive after that date. A few months later, in August 2011, Decedent presented to a Dr. Thomas Jan. During Dr. Jan's initial examination of Decedent, he discovers recent "IV track marks" on both of her arms and in other places. As a result, he tells Decedent that she is an addict and offers to help get her into recovery, but he "would certainly not be giving her any pain control medications except possibly Suboxone but she refuses." Dr. Jan's impression of Decedent included an "opioid dependence." The final doctor that Decedent saw before commencing treatment with Kiri was Dr. William White, who wrote her a prescription for Oxycodone on the first visit. Dr. White ceased treatment after a follow up visit on June 12, 2012, where a urine toxicology test came up positive for cocaine use. Although Decedent claimed that this was a "false positive," Dr. White wrote one more Oxycodone prescription and then discontinued further care.

Dr. Dynof states, among other things, that Kiri had an obligation to verify the things that Decedent was telling him at her initial office visit and he failed to abide by the applicable standard of care by failing to obtain her prior treatment records in order to have a proper insight into formulating a comprehensive treatment plan. He contends that Kiri merely took Decedent at her word and did not engage in any due diligence before commencing a course of pharmacological treatment. Had he obtained prior treatment records, he could have seen Decedent's pattern of asking for more narcotics outside of what was prescribed as well as the need to wean off of those medications and possibly enter into an inpatient detoxification clinic.

The doctor also asserts that Kiri deviated from good practice by failing to formulate a treatment plan, aside from consistently prescribing unnecessarily high levels of Oxycodone and Oxycontin, and the records are not clear concerning her progress — such clear and accurate treatment records being required under the accepted standards of care. The expert cites the vague and inconsistent notations in the treatment records, which are not addressed by Defendants in reply papers.

Dr. Dynof also states that upon his review of the record, Decedent exhibited emotional [*9]issues and signs of substance abuse, requiring treatment with a mental health professional. He notes that, according to Kiri's records, Decedent claimed that she lost her medication prescription only three days after receiving it, and instead of investigating further, Kiri immediately issued a replacement. He asserts that Decedent should have been immediately referred to a mental health professional after reporting in February 2013 that she was sexually assaulted, and Kiri had described her as "emotionally distraught" at the time. Dr. Dynof also claims that, at that time, good practice called for Kiri to engage in pill counting during treatment visits to ensure that Decedent was not selling, sharing, or giving away any of her medication. Dr. Dynof adds that Kiri deviated from the standard of care by prescribing Xanax in December 2012, as he admitted at deposition that he had no background in psychiatry. Furthermore, Kiri should have performed a comprehensive medical evaluation during treatment, and the record indicates that Kiri was at least aware of an April 23, 2013 hospitalization as those toxicology reports are copied into his files. Dr. Dynof asserts that Kiri should have further inquired as to this hospital visit during his physical examinations.

The foregoing statements are sufficient to raise a triable issue of fact as to whether or not Kiri deviated from accepted medical practice. The Court reaches this conclusion even without crediting Plaintiff's assertions that Kiri's records were improperly altered or maintained. Contrary to Defendants' contentions, Plaintiff's expert was entitled to rely in part on the Model Policy publication from the Federation of State Medical Boards, which he states have been "endorsed to date by the American Academy of Pain Management, the DEA, the American Pain Society, and the National Association of State Controlled Substances Authority," and therefore constitutes proper evidence of a generally accepted standard or protocol (cf. Diaz v. New York Downtown Hosp., 99 NY2d 542 [2002]). Furthermore, Defendants' expert does not dispute in reply that the Model Policy sets forth a generally accepted standard or practice for the prescription of opioid medications. Moreover, Plaintiff's expert contentions were also predicted upon his review of medical records and the practices and procedures of other medical offices in this case such as Comprehensive, and therefore his findings are not "speculative or unsupported by any evidentiary foundation" (id.; citing Romano v. Stanley, 90 NY2d 444, 451-52 [1997]). Defendant's expert claims in reply that Dr. Dynof is unqualified to render an opinion in this matter, yet this statement lacks detail and thus fails to establish that a licensed physician with Dr. Dynof's qualifications does not possess the "requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable" (see Mustello v. Berg, 44 AD3d 1018, 1019 [2nd Dept. 2007]).

On the issue of proximate cause, Dr. Dynof adequately asserts that Defendants' conduct, by failing to engage in due diligence by obtaining Decedent's prior medical records, prescribing excessive medication, and failing to keep accurate progress records were a direct cause of the exacerbation of an already-present addiction to opioid-based medications and possibly other illicit substances. He alleges that had Kiri followed the applicable standard of care, Decedent would have been properly weaned off of controlled substances during the course of her treatment. He also notes that Kiri engaged in an improper relationship with Decedent, his patient, during the course of treatment, and he asserts that had he ended treatment at that point and recommended another physician who followed the appropriate standard of care, she could have gotten off of opioids through detoxification and mental health counseling.

Plaintiff also adequately raised a triable issue of fact as to whether Kiri's conduct was the proximate cause of her death. It cannot be stated that the overdose was an unforeseeable act far removed from Kiri's conduct, because according to Plaintiff's expert, had Kiri performed his due diligence in investigating Decedent's history of opioid abuse and obtained her medical records, including those records where a prior doctor noted evidence of heroin abuse and hospital records where she exhibited physical signs of such abuse, Kiri could have been made aware of Decedent's issues and he could have recommended a different course of treatment. Plaintiff's expert contentions constitute a sufficient, non-speculative showing of "the requisite nexus between the malpractice committed" and the damages sustained (see generally Koeppel v. Park, 228 AD2d 288, 290 [1st Dept. 1996]; see Vito v. North Medical Family Physicians, P.C., 16 AD3d 1039, 1040 [4th Dept. 2005][whether doctor was negligent in inter alia failing to keep proper business records and in prescribing and continuing plaintiff on Oxycontin, and whether that negligence caused plaintiff's damages, was for the jury to decide]; see generally Karasik v. Bird, 98 AD2d 359 [1st Dept. 1984]).

Accordingly, it is hereby

ORDERED, that Defendants' motion for summary judgment is denied.

This constitutes the Decision and Order of this Court.

Dated: __April 17,_________ , 2018

_________________________________

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