Schmahl v Jeffrey Wheeler, D.O.

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Schmahl v Jeffrey Wheeler, D.O. 2019 NY Slip Op 33433(U) November 19, 2019 Supreme Court, Suffolk County Docket Number: 12-25362 Judge: David T. Reilly 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. [* 1] SHORT FORM ORDER INDEX No. 12-25362 CAL No. 16-00238MM SlJPRE!'vfE COURT - STATE OF NEW YORK l.A.S . PART 30 - SWFPOLK COUNTY PRESENT: Iron. ---"D...,,.A..._V-'-"'=ID::.. . . .:. T'-'.R=EI=l=,L"-''\'-'__ Justice of the Supreme Court MOTfON DA TE 05-08-19 A DJ. DATE 06-05- 19 Mot. Seq. # 012 - MotD # 013 - MotD ---------------------------------------------------------------~ DAVID LEE SCHMAHL, as Executor of the Estate of RICHARD R. SCHMAHL, Deceased, Plaintiff, DUFfY & DUFFY Attorney for Plaintiff 1370 RXR Plaza West Tower, 13th Floor Uniondale, New York 11556 SANTANGELO, BENVENUTO & SLATTERY Attorney for Defendant Wheeler 1800 Northern Blvd. Roslyn, New York 11576 - against - JEFFREY WHEELER, D.O., DA YID R. BERENZY, JR., P.A., STEVEN K. SAMUEL, D.O. , ..JOI lN/JANE DOE", P.A .. (First :md Last Name bei11g fictitious), FREDERICK B. GUTMAN, M . D., NEW YORK SPINE & 13RAIN SURGERY UFPC and Sr. C HARLES I JOSPJT/\L AND REHABILITJ\ TTON CENTER. BOWER LAW, P.C. Attorneys for Defendants Samuel and St. Charles Hospital and Rehabilitation 1:'.!20 RXR Ploza. 12th Floor Uniondale, New York 11 556 FUMUSO KELLY SWART FARRELL POLIN & CHRISTENSEN. LLP Attorney for Defendants G utman anJ Ne\.\. Y ork Spine & Brain Surgery 110 Marcus Blvd. Hauppauge, 'cw York 11788-3704 fUREY FUREY LEVERAGE MANZIONE WILLIAMS & DARLfNGTON Anorneys for Defendant RerenZ)' 600 Front Street Ddendants. ---------------------------------------------------------------:'< Hempstead , New York 11 550-449.f [* 2] Schmah l v Wheeler lndex No. 12-25362 Page 2 Upon the following papers numbered I ro ...i!_ read o these motions for summarv judirment: Notice of 1vlolion and ;upponing papers 1-24: 32-49; Answcrin~ Affidavits ~nd supp011?11g papers~; Replyinl? ~ffidavits and supponing papers _9-31: 50-51: Other _; (.111d aft:e1 he,11111g counsel m .nrppo1"t oppo3ed to the 111nt1011) II 1s, Td ORDERED that the motion (#0 12) of defendant David Berenzy, P .A., and the motion (#013) of defendants Steven Samuel. 0.0., and St. Charles Hospital and Rehabilitation Center are consolidated for purposes of this determination; and it is ORDERED that the motion (#012) of detenda t David Berenzy, P.A., for summary judgment dismissit1g the complaint against him is granted to the xtent set fo rth below, and is otherwise denied: and it is further ORDERED that the motion (#013) of detend'jts Steven Samud, D.0., and St. Charles Ilospital and Rehabilitation Center is granted to the extent set f~ rth below, and is otherw ise denied. Plaintiff David Lee Schmahl. as Executor of the Estate of Ric hard Schmahl. commenced this action to recover damages for personal injuries and wtpngful death all egedly caused by defendants ' medical malpractice. The complaint also contains cmlses of action for lack of infonncd consent and negligent hiring by defendant St. Charles Hospital and Rehabilitation Center. The complaint alleges that plaintiffs decedent was treated by defondanrs on :tVfarch 18, 2011 , March 20, 2011, and March 22, 2011 through March 28, :W 11. Plaintiff alleges that ctdfendants committed malpractice by fail ing to properly test, diagnose, and treat decedent for an epidural abscess and staphylococcus aureus infection, resulting in sepsis. multi-organ failure and preman1re 1eath. Defendant David Berenzy, P.A., now moves fot summary judgment dismissing the complaint against him on the grounds that his treatment of deced1nt did not depart fro m accepted medical practice and was not a proximate cause of his injuries and deat . In support of the motion, Berenzy submits copies of the pleadings, the transcripts of the parties' d position testimony. decedent's hospital records, and an expert affinnation by Dr. Gregory Mazarin. Bylthe bill of particulars, plaintiff alleges that on March 18, 201 1, Berenzy committed medical malpracLce by taili ng co timely diagnose dcci..:di..:nt with n spinal epidural abscess. in failing to perfonn various diugn1.1stic tests. in fai ling to perform u d ifferential diagnosis. and in fai ling to admi t him to the hospital l d, among other things. causing decedent personal injuries resulting in his pr<.!mature death. Dr. \\'heeler testified that he is board certified ir emergency medicine. and that he works at St. Charles Hospital and Rehabilitation Ce nter (St. Charle$) as an emergency medicine cl inician and as the di rector of emergency ser\'ices. He testified that in Ma~·ch 20 11 he was employed by Port Emergency t\kdical Se1Tices, now named Island '.'v!edical Physicia 1s, P.C., \\'hich prO\'ides emcrgenc~ depa1tmcnt pcrsonnd at various hospita ls. including St. Charles . ~r. Wheeler testitied thal he does not have an independent recollection o l' decedent or the dates and e ents at issue. and testified to his custom and practice as an altending physician in the emergency de artmcnt. He testified from the patient's chart which is maintained in the hospital records. TTe testifiqd that when a patient presents to the emergency dcparlnH.'nl he or sht! is initially triaged by the nursing s taff, and is then seen by a physician ussistanl. and lhut it is his custom and procticc to rcvie\\' the reports rcatcd by the amhulance prt)\·iders. the nursing. 1 [* 3] Schmahl v Wheeler lndex No . 12-25362 Page 3 the~e triage, and the physician assislanl. Ile testi lied that is one attending physician in the emergency department on each shift, and that the two shifts are tyqically from 7:00 a.m. through 7:00 p.m. and 7:00 p.m. through 7:00 a.m. Dr. Wheeler testified from the ambulance reeot1 which states that decedent was found on the couch with complaints of pain, that he described his p~in as a I 0 on a scale from 1 through I 0, and that he was conscious, his skin was warm and dry and his al1kles were coo l. According to the ambulance experienced back pain for over 20 years, and record, decedent told the ambulance crew that he has that he took a Vicodin at 8:30 a.m .. and that he took one before he went to bed the previous night. The report indicates that rhe decedent's vital signs \Vere obtkined by the ambulance crew, and Dr. Wheeler testified that the triage notes indicate that decedent an+ed at the emergency department on March 18, 2011, at I 0: I 0 a.m. on a back board wearing a cervical collar. He testified that decedent was categorized by triage as a "stable urgent three" which is one of the four criteria used by the emergency department, one being emergency level and level four is non-urgent!. Dr. Wheeler testified that decedent's chief complaint was lower back pain, and he was unable to stand up. He testified that decedent's vital signs were taken, and that his temperature was 98.3 which is 1normal. that his pulse was l 08, his blood pressure was 14 1 over 98. saturation was 98 per cent, ~1d his respirations were 18. He testified that decedent's pulse rate of l 08 suggested early tachycardia. and that decedent was taking Vytorin and 81 mg or aspirin daily. J nbt Dr. Wheeler testified that decedent was given ·1 oradol and Flexiril at 10:35 a.m .. and that an xray examination of the lumbar spine \11,.·as ordered. He testified that the emergency department notes indicate that Berenzy performed a physical exarninatio~ and neurological examination on decedent at I 0:25 a.m. and circled negative for the following consdrutionals: fever, chills, weakness, irritability and weight loss. Berenzy's notes also indicate that decedent did not have altered vision, toothaches, throat pai.n, nosebleeds. earache or altered hearing. Dr. Whee~er testifi~d that the notes further indicate that decedent was negath·e for symptoms in the pulmonary bhest system, gastroenterological system, genitourinary system, and he read the specific areas in the various systems during his deposi tion. 13cren7.y's notes indicate that the ncurologicnl examinn~ion of decedent indicated no headaches. weakness, tremors. blurred vision. vertigo, diplopia or farasthcsias. Add itionally, Bcrcnzy's notes indicate that decedent was alert, his cranial nerves 2 through 12 were intact, his rctlexcs and motor strength were normal, and his cerebellar neurological a ·pects were nomrnl. Or. Wheeler described the type:-; f1f tests that were uti I ized to obtai n those results. With respect to the physical 1:xamination. Dr. \thcekr testified that Bcrenzy's nott:::. indicate he circled a posith:c Ji ndi n~ _for tenderness in de~ede nt 's I m~r ba~k a:ea, an~ t?at tbe x-rny cxarnination re,·ealcd cxtens1n~ arthnt1s. Dr. Wheeler testified that eren7y s diagnosis 1or decedent was lumbosacral ra<liculopathy. seYere osteoarthritis of the iumbosacral spine. and muscle spasm. and thm decedent was_ gi\'.cn Toraclo l and r:Jc:cril at noon. I let stifled that the progress note~ create~ by the . triage nurses 111d1cate that decedent telt much better. th· l he was able to 1110\'e slowly , and that he was discharged " ·ith instructions and prescriptions for Vicodin and Naprosyn. lk \\'heeler teslilicd that he agreed \\'ith BcrcnL ·s plan and diagnosis. as we ll as the decision not to order blood work. and that an t\HU and CT scan \n~rc nut nccc.ssar) . u::, ucccdcnt n.::spund~d to the [* 4] Schmahl v Wheekr Index >lo. 12-25362 Page 4 emergency department's inter\'cntion and medications Dr. Wheeler was asked of the significance of hb signature on the emergency room record, and he tcstifi d that it indicates that he was the physician on duty during the time that decedent was in the emergen y department. and that he <.:ountcrsigncd with Bcrcnzy. I le testified that his signature indicates that fe gave ..o,·crsight. av,:areness, guidance, structure and agreemen_t, ove.rsight and assessment of t~1e intera!. i~n in the emergency dc~artment of this ~atie~t as n:presenrat1ve ol the ED PA. NP.'' He testified that 1t 1s the custom and practice to clear a patient lor departure from the emergency dcpanment by both the hysician assistant and the attending physic ian. Bercnzy testified that he became a licensed pr ctical nurse in 1989, that he worked in the emergency department of South Central Hospital, wlu~ · h is currently Peconic Ray Medical Center, and that he also worked in jails until becoming a physiciai assistant in 2004. He testified that he worked in the emergency department at Peeonic Bay Medical Ce ter for three years while employed with Dr. l!nam, _and that he was respons ible for assessing patie ts <~n.d writing orders. Berenzy testified that tollowmg such employment. he worked at urgent care facilities under Dr. Goldman for two to three years and in the emergency department at Peconic Bay Med1·cal Center. He testified that he subsequently became employed with Port Emergency Medical Servi es, and worked for Dr. Ferrara. He testified that he worked at an urgent care facility and in the emerge cy department at St. Charles on a per diem basis. ~rom Bcrcnzy, who did not recall decedent, testified his notes. Ik testified that decedent presented to the emergency department by ambulance on a backboard with a cervical collar and was triaged by a nurse. He explained that triage nu rses rec? rd their assessments in the emergency departmenr records. and that he reads the assessments before seeing the patients. He testified that the nurses categorize patients from one to four, and that decedent was assessed at number 3, indicating stable and urgent. He testified that the triage nurses take patient~' vital signs, and that decedent's vitals were normal with slightly elevated blood pressure and heart rate. He testified further that he always reads the ambulance n:cords n:garding a patient, and that decedent's vital signs taken by the ambulance crew were consistent with the res ults obtained by the triage nurse.I Berenzy testified that he generally does not take a patient"s vital signs unless he finds an inconsistency.I Bercnzy testified that he assessed decedent at I b:25 a.m., that his chief complaint was pain across his lo\\"er back, and that he perfom1ed a physical examination and a standard neurological examination, which consists or inquiries and testing retlcxcs with a reflex hammer. He testified thut he also checks motor function through range of motion. a~d that he uses a paper clip or similar object to determine sensacion. He testified that he records the results of the examination immediately. and that he cirdes plisitive and m:gativc fo r various calegorit:s contained o n the form. Bercnzy testified that decedent experienced tenderness in his lower back whibh is typically associated with muscle spasms. so he ordered Flcxeril for muscle relaxation and Toradol for intlammution. and that he ordered an x-ray examination which revealed extensive arthritis. He: tc:~iiie<l further that he diagnosed decedent with lumbosacral radiculopathy. ty Berl!llZ~ testified thac deced1.:nl wus reasscssc<.I the nursing staff at I :!:00 p.m. The emergency department notes indicate that decedent felt better. was able to mo\·c. and did not ha\·e any other complaints. so he was discharged after discussing his 1 lan with Dr. Wheeler. Fk testi fied that decedent \\'US gi\·cn discharge instructions whid1 indmk<l. un101 g other things, to <.:ontact his prirrntr) cnrc I 1 [* 5] Schmahl v Wheeler Index No. 12-25362 Page 5 physician, Dr. Fishbcrger, the same day. and that hew s advised to see Dr. Fishbcrgcr within three days if his sympwms did not impro\'C . It is well settled chat a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sµfficicnt eYidence to elim inate any materiaJ issue of fact (see Alvarez v Prospect H osp., 68 NY2d 320, 508 NYS2d 923 [ 1986]; Friends of Animals v Associated Fur Mfrs. , 46 NY2d I 065, I 067, 4 I6 NY~2d 790 [ 1979J). The failure of the moving party to make a prima facic showing requires the denial of Ilic motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Ctr. , 64 NY2d 851. 487 NYS2d 316 I 1985 )). The burden th<:n shifts to the party opposing the mot io \.Vhich must produce cvidcntiary proof in admissible form sufrkient to require a trial of the mate ial issues of fact (Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The coprt's function is to detcnninc \\·hether issues of fact exist, not to resolve issues of fact or to detennine ratters of credibil ity; therefore, in determining the motion for summary judgment, the facts alleged by the opposing party and all inforcnces that may be drawn are to be accepted as trne (see Roth v Barreto, J89 AD2d 557, 735 NYS2d 197 [200 !]; O'Neill v Town of Fisltkill, 134 AD2d 487, 521 NYS2d 272 [ 1987}). Mer. ~v1edical n~alpracticc I occurs when plaintiff is i.tl'ured a~ a result of medical tr~atmcnt received by a health care provider that departs from uc.:cepted pract ce and 1s proven to be a proxuuate cause of pla intifr s injuries (see Gross v Friedman , 73 NY2d 7 I, 535 NYS2d 586 [ 1988]; Gachette v Leak, I 72 AD3d 1327, I 0 I NYS3d 432 [2d Dept 2019]; Do1111elt• v Parikh. 150 AD3d 820. 55 NYS3d 274 [2d Ocpt 2017)). It. is the failure of a provider of medical . e~-viccs .to exercise. the degree of skil l and Jeaming commonly applied by an average member of the profc s1on (Pike v He11s111ger, 155 NY 20 l, 49 NE 760 r1898]), and the standard of care is one established by the profession itself (Spe11sieri v Lasky, 9-+ NY2d 231. 70 I NYS2d 689 p 999). citing Totlt v Comm1111ity Hosp. , 22 NY2d 255. 292 NYS2d 440l1968]). ·'A physician moving for summary judgment di~missing a complaint alleging medical malpractice must establish, prima facie. either that the~e was no departure from accepted standards of medical c:.ire or that ::tny dep::trture w ns not a proximate!cause of the pin inti f't's injuries'· (A 11011ymous 1• Gleaso11J. J 75 AD3d 614. 616, I 06 NYS3d 353 [2d Dept 20191. quoting Schwartzberg v Hu11li11gto11 Hosp., 163 AD3d 736. 737. 81 NYSJd I 18 [2d Dept 2018 IJ· The burden is equally applicable to a physician assistant who is subject to liabi lity in medic~! malpractice ns wcl l (see Bleiler v Bodnar. 65 Y2d 6 5 . .+89 'YS2d 885 [ 1985): Monzon v Cltiara11~011te. 140 A DJd l 126. 35 NYS3d 3 71 f2d Dept 2016]; Sdvo/i v Levit, 79 AD3d I0 I I, 913 NYS2d 32i f2d Dept 2010)). To prove that defendant did not deviate from accepted standards of medical care orjwas not a proximate cause of plai11tiff s inJurks. expert testimony is ordinarily necessary (see James v 1 'ormutlt. 21 l\'Y3d 540. 974 ·ys2c1 308 [:!OJ 31: Lampe 1• Neurological Surgery, P.C.. 173 AD3<l 996, I03 NYS3d 527 [2d Dept 2019]: Decker v State of New Fork, 164 AD3d 650, 83 NYS3d 533 l2d Dept .20 181: W!tituum 1• Plastic & Reco nstructive S11rge1J', P.C. . 142 AD3d 495 . ~6 NYS3d 470 [2d De~~ t 2016]). pi_ . <!nee ddenda~t cstabli.shes a prima faci~ ca~c, plair:ti tr oppos in~ tl defendant physi:ian ·s . motion for summary .1udgmcnt must only submit cv1dcnt1ury tacts or matenals to rebut the defendant s prima focie showing·' (Stukas v Streiter. 83 AD3d 18, 186. 918 YS2d 176 [2c.1 Dept 2011 ]. <:iting: .'ll••arez ,, Prospect Hosp .. 6~ N Y2U at 324, 508 NYSr 923). Thu>, u plaintiff is not 0·«1uio·cd to oddcc" 1 [* 6] S(.;hmahl v Wheeler Index "'.\!o. 12-25362 Page 6 rhose elements that the defendant did not establish in tl1e motion in order to successfully deteat the motion (see Omane v S ambaziotb;. 150 AD3d 1126, ~5 NYS3d 345 1_2d Dept 2017]; M etcalf 1• O'Hallera11. I31 AD3d 758, '.25 NYS3d 679 [2d Dept 2016]; Guctas v Pessolmw. 132 AD3d 632. 17 NYS3d 749 (2d Dept 2015 J; Hayden v Gordon , 91 1\J?Jd 819. 937 ?\YS2d 299 f2d Dept 2012 I: Stukns v Streiter. 83 AD3d 18. 918 NYS2d 176). I The affirmation of Dr. Gregory Mazarin is subr1itted. Tn his affirmation. Dr. Mazarin states that he is a licensed physician in the State of New York. a1d he has worked as an emergency room physician since 1997. He states that he reviewed decedent's hotpital records from Sc. Charles, the pleadings, bills of particu lars, and the transc ripts of the deposition tcstjimony given in this maner. Dr. Mazarin opines, with a reasonable degree of medical certainty, that Be1lenzy' s treatment and care of decedent die.I not depart from accepted medical practice and was not a cfiuse of dccedenr's injuries or death. Dr. Mazarin reiterates the factual history of dededcnt's presentation to the emergency department which comports with the testimony recitccl above, and 1opines that it was appropriate for decedent to be seen by a physician assistant. Ile opines that Bercnzy properly recorded decedent's medical history, conducted an appropriate physical examination, and properly documented the results. He opines that Berenzy acted in accordance with accepted medical pr!cticc based upon the information provided to him. and that he properly formulated a proper diffcrcn ial diagnosis of lumbar/sacral radiculopathy. severe osteoarthritis of the lumbar/sacral spine, and m scle spasm. Dr. Mazarin states that back pain is one of the tost common conditions encountered in an emergency department, and that when decedent presented to the emergency department at St. Charles on March 18, 2011, there were no red flags to suggest thaf he was suffering from anyth ing ot her than back pain. He states that decedent was afobrile, that he had no numbness or incontinence. and he did not complain of weakness on March 18, 201 l. Dr. Mazarir opines that decedent's prcsl:ntation with no symptoms other than back pain did not warrant blood :vork to be performed. and that in the absence of a te\·er or focal neurologic deficit, there was no indication to obtain any additional testing. He states that decr.?dcnt impro,·ed with lt1w doses of pain medication. and that his history. his improvement. and the results of the lumbar x-ray examination are consistent ~·ith tbe diagnose and his discharge. Dr. Mazarin opines that dcccJent' s presentati9n did not warrant u CT scan. MRI. blood cultures. urine cultures. and he enumerates ot her diagnostic testf which ht: opines were not required under the applicable standard of care. r Ie opines that Bercnzy acted \\ithin accepted practice by hanng Dr. Wheeler s ign the patient's chart prior to his d isc hnrge,~nd that it was within the stundan.I of can.: for patients who are assessed at level 3 or 4 not to be seen jby a physician. J lcre. Rcrcnzy cstab lishe<l. prima focic, hi s en ti~lcmcnt to su1111rn.1ry judgment dismis:sing tht! ni..:Jical malpractice cause of action by profforing. amdng other things. the affirmation o r Dr. lvtazarin. who opines that the treatment rendered to decedent at $t. Churl es on \1arch 18. 2011 by Bcrcnzy \\'as in accordance with good and acceptc<l mcdicul practice, ~ml was not a proximate cause of decedent' s injuries or death (see Gray v Patel, 171 AD3d 1141. 99 NYS3d 76 12d Dept 2019]: Garcia v Riclter. 131 t\D3J 809, 18 NYS3d 401 f2d Dept 20 I 5 ]). [* 7] :Schmahl , . \\'heeler Index No. 12-2 5362 Page 7 Berenzy also estab lished, prima facie, his cntitjcmcnt to summary judgment dismissing the second cause of action alleging lack of infonncd cons nl, as the alleged injuries are alleged to have occurred from the fai lure to diagnose. For the claim be actionable, a defendant must have engaged in a "non-emergency treatment. procedure or surgery" orl"a diagnostic procedure which involved invasion or disruption of the integrity of the body'· (Public Hear Law§ 2805-d (2)). An essential element ofa cause of action for lack of informed consent is that there be an affirmative violation of a plaintiff's physical integrity (Ellis v Eng, 70 AD3d 887, 895 NYS2d 462 [2d Dept 20 IO]). Lack of informed consent docs not apply to injuries that allegedly resull ifrom a failure to undertake a procedure (Bueno v td Allam, 170 AD3d 939, 96 NYS3d 623 r2d Dept 2019i: Ellis v Eng, 70 AD3d 887. 895 NYS2<l 462). As there are no allegations in the complaint or bill of yarticulars regard ing an affirmative violation or decedent's physical integrity, the cause of action for lack of informed consent should be dismissed (see! Galluccio v Grossma11, 161 ADJd I 049, 78 NYSJd I p6 l2d Dept 20 18]). I [aving established his entitlement to summary judgment, Berenzy shifted th9_burdcn to plaintiff to proffer competent evidence sufficient to raise a triable issue of fact (see Alvarez v ('rospecl Hosp .. 68 NY2d 320, 508 NYS2d 923 [ 1986J; Stuk11s v Streiter. 83 AD3d 18, 918 NYS2d 1{6). In opposition, plainci ff submits an affirmation i1)' an expert whose name has been redacted. I Imvever. an unredacted affidavit was provided to the bourt for in Clllnera rc\'iew. The Court notes that plaintiff's opposition to Bcrenzy's motion also includ~s its opposition to the motion by defendants Steven Samuel, D.O. and St. Charles. discussed belo"'J. Plaintifrs expert slates that he is a licensed physician in the State of New York. and he is board certified in internal medicine and emergency medicine. He states that he has specialized in e mergency medicine for over 35 years. and has worked u~ a director of emergency departments for 20 years. Plaintiff's expert states that he is fami liar \Vi th the roles and requirements of attending physicians and phpician assistants, as well as the duties and responsibilities required of them whe n treating patien~~ such as decedent. He states that he has reviewed the pleadings. the medical records from St. Charles relating to dccedcnfs presentation to the emergency department on March 18. 20 11 and March :!O, 2011 , a 1d the records pertaining to his hospital adm ission fro m March 22, 2011 through March 28. 201 I. He states that he has also reYiewed the affi rmations submitted with defendants' motions and the transcriptf of deposition testimony. Plaintiffs expert stales that Pi\ Berenzy dc par~ed n·om accepted mcllica1 practice in his trcaum:nt and care· of <l<.:cedenl und that such departure was a cat!sc of decedent ·s injuries and premature death. He 0pines that when patients present to an emergency department with complaints o f back pain. tht! standard of care is tu conduct a proper ·'work up" and detcrmint whether the patient's complaints are due to a potent ially emergent condition requiring rapid evnluatjon and treatment. l·k statt!s that lhc standnrd of care for emergency room clinicians \\·ho evaluate patiqncs for lower back puin is to indude a ..red flag diagnoses:· \\'hich includes ..space occupying lesions. ~'rnc tu re. cuada cqu ina syndrome. spinal cord compre::;sions. 'ertcbral malignancy. and spinal infection.·· I le states that it is impropa for a treating clinician to assuml' tlrnt back pain is hcnign. and that is or her only role is 10 alleviate the pain . . Plai nt i rr s cxp~rt opi ncs tl~at ddenJants dcpartfd t~om accepted stan~lards of med i<.:al ca": tiy 111ak111g such assumptions. He opines that x-ray cxaml'iat1ons arc generally madequatc to dctcrm1nc whether a potentially emergent condition exists. and that a CT scan or a magnetic resonance imaging test (1\11 RI) Ur<.' rcq uirL~CI Ur1Ller tile UlCCIJLCLI ~Lam.lard uf cur . r re upinc:i lhlll lh~ diusno!'lis provided Oil :'\ 1a1·ch [* 8] Schmahl v \\/heeler Tndex No. 12-25362 Page 8 18 und March 20, ~O 11 was a ··diagnosis of exclusion' without going through the process of exclusion which \.\'Ould have included an MRI test and blood tes sat a bare minimum. He opines that decedent"s undiagnosed condition progressed, and that the delay i treatment between :\1arch 18 and March 22, 2011. the date when the accurate diagnose wus formc , led to decedent's organ failure and premature death. as he could have been treated with antibiotics \\hich would have arrested the development of the infectious disease that caused his death. j Plaintiff's expert states that the defendants failed to conduct a thorough differential diagnosis 1 which should ha\'e included a '·space occupying lesiol, such as an epidural abscess."' and that such fai lure was a departure from the accepted standard of 1edical care. He opines that decedent's sympwrns upon presentation to the emergency department on M rch 18, 2011 were indicative of a space occupying lesion, and that de fondants departed from accepted m~dical practice by failing to perfo1111 an MRI or conduct lab studies which would have revealed abnon]1alities consistent with an infection, and that such infection could have heen treated if timely diagnosed . 1 Plaintiffs expert affirmation raises triable issues of fact regarding Bcrenzy's treatment of decedent. ..Summary judgment is no t appropriate in ajmedical malpractice action where the parties adduce conflicting medical expert opinions" (Fei11be~ v Feit, 23 AD3d 517. 519, 806 NYS2d 661 [2d Dept 2005); see also H11tclti11so11 1• Ne1v York City H a/tit & H1>sps. Corp., 172 A03d I 037, l 0 I NYS3d 96 [2d Dept 20 I 9]). Here, the conflicting affi mations of plaintiff's expert and Or. Mazarin raise credibility issues properly determined by a trier f fact (Macanceln v 1f'yckoff Hgts. Med. Ctr.. I09 AD3d 411. 2019 NY Slip Op 07244 [2019]; Stuccltio v Bikvan, 155 ADJd 666, 63 N YS3d 498 (2d Dept 20 17 J; Loaiza v Lam. 107 A03d 951, 968 NYSrd 548 [2d Dept 20 13]). Accordingly, the motion of Berenzy for summary judgment dismissing the complaint against him is denied with respect to the cause of action alleging medical malpractice. I lowevdr, Berenzy is granted partial summary judgment with respect to the cause of action ulleging lack of irrtbm1cd consent, as plaintiff has failed to oppose that bram:h of the moti on or specifically add ress such pause of action (see Wrigltt 1• Momi11g Star Ambu/ette Servs. 1 In c .. 170 AD3d 1249. 96 NYS3<l 698 [2d Dept 20191: Rehow v Wile11 . -i I A03d .+57' 838 NY~2d 121 [2d Dept 2007 n. I Dr. Steven Samuel and St. Charles move for s~\mmary judgment dismissing the c o mplaint against them . Dr. Samuels argues that he <lid no t o\\'e jdcccdcnt a duty of care. as he Jid not form a physician-patient relationship with decedent in the emergency department on I\ larch 20. :w 11. The bill of particul urs alleges that Dr. Samuels was the auendi 1g physician in the emergency department ac St. Chnrles on March 20. 2011. and that he was 111.:gligent in failing to diagnose <lcced~nt with a spinal epidural abscess. in foi ling to admit decedent to the:: h+ pital. in foi ling to conduct various diagnostic tests. and in failing to consult with specialists. among other things. In support of the motion. Dr. Samuel submits the transcripts or depns ition testimony by Lis Weider and Sandra Rel-Schmal. certified huspitul reco rds from St. Charles. and his O\\ n affida\'il. At his deposition. Dr. Samuel testified that he l ra<luate<l from New York Colkgc of Osteopathi c Medicine in 2002, and that he did a three-year residcn yin emergency medicine at St. Barnabas Hospital. lk tcsli1icd that be is a licensed physician i the State of New York. and that he is board ccrtilied in cmcrg1:ncy mcdicmc. J le tescitied that he s employed by blam.1 ,\ kuicul l'hy:;ician' s, 1'.C .. [* 9] Schmahl ,. Wheeler Index No. 12-25362 Page 9 and that he worked in the emergency depa1tment of St Charks for six years, including on March 20. 2011. I le testified that he works twch•c hour shifts at t. Charles, and is the attending physician in the emergency department. I Tc testified that he works 7:00 a.m. until 7:00 p.m., and that the emergency department has one attending physician pe · shilt, and also has physician's assistant and nurses. He testified that he did not meet, examine or treat decedent on yforch 20, 201 Land that decedent was not assigned to him in th..: emergency department. fror Dr. Sam uel wns shown a copy ol' decedent's e~crgcncy department records from March 20. 2011. and he concedes that his name appears on decc~ent's chart as the admitting physician and as tl1c attending physician. He te::;tified that hi s name o nly a1rpears on the record us a result of being prepopulated and that it was inserted by default. He denies that he was the attend ing physician assigned to decedent, and he testi fied that he did not discuss or copsult with any orthc staff regarding decedent. and he did not review decedent's chart. He testified that dbcedenr was treated by the nursing staff and by t-.!aria Baciuska. P.A., in the emergency department March 20, 2011. and that decedent's emergency orl department records were signed by Baciuska am! that r co-signed the records. Dr. Samuel was asked why he signed the emergency department records rdating to decedent on ~larch 10, 2011, and he testified rhat it was required b~· his employer Island Medical Phy::;icians based upon its po licy. His signature appears on page cwo oflthe emergency deparlmenl record under patient's disposition. He was asked whether he reviewed dece+nt's chart, and he answered in the negat ive with the explanation that decedent was not assigned to him] and he did not meet him. so he would not ha"e n~viewed the records. Dr. Samuel also submits his own aftida,·it whifh reitcrutes his testimony that he had '·zero inrnlvement'' wi th decedent ·s treatment and care. He i.States that physician' s assistants work independently. and at times thc:y seek advice from the !tending physician. but that he was not contacted by Bacuiska on March 20. 20 11. I lc::rc. Dr. Sumud frtilcd to l!st::iblish his prima f::icic entitlement to Sl1111rnory j udgmi.:nt dismissing tht' cause of action alleging med ical malpractice, as helhas foiled to submit sufficient evidence to support his argument that he did not O\Ve a duty of care to plai~tiff. No affidavits hm·e been submined by any agent of Island Medical, nor have any documents beenj submi tted to substanti ate that the company's policy requires physicians to sign h0~pital records that they havt: not reviewed. :..ior has any CXpt!rt anidavit been submitted to explain the protocol and relationships of physicians and phys ic ian assistancs. Th\.' tc~timony and affidavit of Dr. Samuel arc insufficient co estahlish his prima facie entitlement to sumrmH)' j udgrnent, as "'self-serving statements of an jHcrested party which refer to mallers exclusi,·ely within that party· s knowledge create nn issue of credi~i~lity wh ich should not be decided by tbe com1 but should be left for the trier of facts'· ( Quiroz v 176 N . .fl/ni11, LLC. 125 AD3d 628 . 631. 3 NYS3d I 03 [2J Dept 20 15]. q uoting S acher v Lo11g 15. Ji?wislt-llillsit1e Med. Ctr .. 142 AD2d 567. 568. 530 NYS2d 232 (::!d Dept 1988 j l. Furthermore. it is evident from the conflicting icstimony of Dr. Whcc..:ler !hat triable issues of fac t hn\·c not heen eliminated to establi sh that Dr. Samuel bid not owe decedent a duty of care. For th<.: - [* 10] Schmahl v Wheeler Index No. 12-25362 Puge 10 reasons discu.s scd in this decision regarding Berenzy·s1motion, Dr. Samuel is also granted partial summary judgment dismissing the cause of action alleging lack of informed consent. As for the branch of the motion pertaining to St. Charles. the hospital moves for summary judgment dismissing the complaint on the grounds th~ the cause of action alleging negligent hiring, supervision and training cannot proceed against it wh4rc liability is imposed upon an employer under the doctrine of respondeat superior and the employees wefe acting within the ::;cope of their employment. St. Charles argues further that its staff d id not depart frm~ good and accepted medical practice in their treatment of decedent; that it cannot be vicariously liable for the conduct of Dr. Wheeler, Dr. Samuel and Bcrcnzy, and that it cannot be liable for lack of inforntd consent. I Iospi tals are vicario usly liable for the acts or heir employees and mny be vicariously liable for the malpractice of a physician. nurse, or other health c re professional that it employs under the doctrine of res pond cat superior (see Hill v S t. Clare's Hosp. , 6f7 NY2d 72, 499 NYS2d 904 [ 1986]; Bing v Tl11111ig, 2 NY2c..I 656, 163 NYS2d 3 (1957]; Seiden vlso11stei11. 127 J\D3d 1158, 7 NYS3d 565 (2d Dept 20 15]). Gcnernlly, a hospital is not vicariously liable f.or the ma lpractice of a physician who is not employed by the hospital. However, "an exception to the general rule exists where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing"(Smo/irm v Port A utlt. ofN. l'. & f". J.. 128 AD3d 796. 80 1, 9 NYS3d 329. 334 [2d Dept 20151). Under a theory of apparent agency. the~ospital may be held \'icariously liable for the negligence of the treating physician o r provider even i ·they are independent contractors (see Rivera v Wyckoff llgts. Med. Ctr.. 175 ADJd 522. I 07 NYSJ 55 [2d Dept 2019]). A hospital also owes a duty of reasonable care to its patients in hiring and supervi ing its employees and generally complies with such duty where there is evidence that it conformed to the acceptable standard of care customarily used b~1 general hospitals (see S afria v S t. Catf1eri11e of Sie 11w Med. Ctr., 84 AD3d I 053, 923 NYS2d 856 [2d Dept 2011]). To establish a prima facie showing of entitlerrLnt to summary judgment. a defendant hospital mu:st establish through medical rcco1·ds and competcjt expert a fti davits that its employees. or as here. the emergency room staff did not dcviak or dcpa11 fiom accepted medical practice in their treatment of the patient or tha t any departure was not a proxi1119te cause ofpla intitrs inj uries (Tsitrin 1• New York Com m1111i ty Hosp., 154 AD3d 99-+. 62 NYS3d 506 [2d Dept 2017]: Lau v Wan, 93 AD3d 763. 940 ;"\1YS2d 662 l2d Dept 2012]; S t11kas 1• S trei/er, 8~ AD3d 1X. 918 :YS2d 176 [2d Dept 2011 J; Castro i • New York City Healtlt & llosps. Corp., 74 t D3d 1005. 903 NYS2d 152 [2d Dcpt 2002)). Herc. St. Charles faileu to establish its primu dcic entitlement to summary judgment dismissing the cause of action claiming it is\ ic:lriously liable for \he conduct of its employees and agents. as no expert affida\'it or other competent evidence is submi t cd establish ing that its employees or agents did not depart from good and accepted medical prat·tice ir treating deccdcnl. However. St. Charles has established its entitlement to su mmary judgment dism ssing the rnuses of' action alleging lack of informed consent and negligent hiring. super\'ision an training... When; an employee is acting within the scope o(his or her employment, the employer is Ii hie fo r the employee's negligence under a theory of rcsronckat superior nnd no claim may proceed agai 1st the employer (()r negligent hiring. retention. supen ision or training" ( O uiroz v Z(~ftoln. 96 !\ LJ3d I 035. I 037, 94:> ?\'Y~2d 77 f2d Dept 20121. [* 11] Schmahl v Wheeler Index No. 12-25362 Page 11 quoting Tala vera v Arbit. 18 AD3d 738, 795 NYS2d 7 8(2<l Dept 2005 J; see also Simpson v Edglti/I, 169 AD3d 737. 93 NYS3d 399 [2d Dept 20 19]; Helll)' v Swzrise Manor Ctr. for Nursing Relwbilitatio11, 147 AD3d 739, 46 NYS3d 649 [2d De t 2017)). \Vbile there is an exception that applies to a plaintiff seeking punitive damages for gros • negligem:c, it is inappl icable here. As plaintiff seeks to hold it \'icariously liable for rhc conduct of its ngents an<l employees. and there is nothing lo sh~w that. any of them we re _acting ~).ulsidc the scope 01h~ei1: ~.mploym~nt, St. Charles est~bli~h~d its prnna fac1c case, and, therefore, shifted the burden to ~lamt1tt to subm lC competent proot· sutlic1enl lo raise a triable issue of fact (Zuckerman v City of NewlYork , -t9 NY2d 557, 4~7 NYS2d 595). Further. St. Charles has established. prima focie, that the treatinf doctors and other health care providers were y_ualified, as per their testimony regarding their experic ce and credentials. In opposition. plaintiff submits the papers that were submi tted on the motion by BerenZ)'. While plaintiffs expert addresses the cause of action al leging medical malpractice. it is devoid of any statements or opinions regarding the causes of action fi~· Jack of informed consent and ncgligenr hiring. Tlaving fai led to oppose that branch of the motion ors eci fical ly address such causes of action, the hospital's motion is granted to the extent that pa11ial su 1mary judgment is granted dismissi ng the causes of action alleging lack of infonned consent and negligc[l hiring (see Wright v Morning Swr Ambulette Servs. , btc .. 170 AD3d 1249, 96 NYS3d 678; Rebozo Wile11, 4 1 AD3d 457, 838 NYS2d 121 ). I Iowever. with respect to the cause of action imposing icarious liabili ty on the hospital fo r the malpract ice of its employees and agents, the motion is denied. The unredactcd affidavi t of the plaintiffs ex per is being mailed back to the plnintiff s counsel on this same date. J.S.C. I lION. DA.VID T. REILLY FINAL DIS POSITION ---Xf- NON-FI N AL DISPOSITION

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