Bastone v Garan
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Bastone v Garan 2019 NY Slip Op 34180(U) December 12, 2019 Supreme Court, Westchester County Docket Number: 63342/2017 Judge: Charles D. Wood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 12/13/2019 10:46 AM NYSCEF DOC. NO. 60 INDEX NO. 63342/2017 RECEIVED NYSCEF: 12/12/2019 commence the statutory statutory time time period appeals To commence period for appeals of right right (CPLR (CPLR 5513[a]), 5513[a]), you are are advised advised to serve serve a copy copy as of of this order, order, with notice of of entry, entry, upon upon all parties. of with notice parties. SUPREME COURT COURT OF THE THE ST STATE NEW YORK YORK SUPREME ATE OF NEW COUNTY OF WESTCHESTER WESTCHESTER COUNTY ----------------------------------------------------------------------------)( ----------------------------------------------------------------------------X LAURA BASTONE, BASTONE, LAURA DECISION & ORDER DECISION ORDER On Motion Motion for Summary Judgment Summary Judgment Index 63342/2017 Index No.: 63342/2017 Sequence No. 1 Sequence Plaintiff, Plaintiff, -against-againstARED GAR~N GAR~.Nand ARED ARED GARAN, INC. ARED GARAN, INC. Defendants. Defendants. -----------------------------------------------------------------------------X -----------------------------------------------------------------------------)( WOOD,J. WOOD,J. New York York State State Courts Courts Electronic Electronic Filing Documents Numbers Numbers 27-59, New Filing ("NYSCEF") ("NYSCEF") Documents 27-59, were read in connection connection with with the motion motion for summary summary judgment defendants. In this action, were judgment by defendants. action, patient sues obstetrician, obstetrician, asserting asserting medical medical malpractice, malpractice, lack of of informed informed consent, consent, and and patient ,, negligence in Dr. Ared Ared Garan's Oaran's alleged failure to diagnose treat patient patient for placental placental negligence alleged failure diagnose and treat abruption, causing causing the loss of of the fetus. abruption, NOW, based on the foregoing, motion is decided decided as follows: follows: NOW, based foregoing, the motion 2016, plaintiff plaintiff received received her prenatal prenatal treatment treatment and care from defendant Ared In 2016, care from defendant Dr. Ared Oaran. Plaintiff, Plaintiff, then then 34 years years of of age went went to Dr. Oaran's January 16, 16,2016, post Garan. Garan' s office office on January 2016, status status post intrauterine insemination. insemination. Her Her treating treating orthopedic orthopedic surgeon, surgeon, Dr. Oraziosa recommended that that intrauterine Graziosa had recommended should deliver deliver by Cesarean Cesarean section section due to her past past medical medical history history significant significant for hip she should dyplasia, hip dislocation, dislocation, hip surgery surgery and knee arthroscopy. arthroscopy. During During her her pregnancy, pregnancy, plaintiff plaintiff. dyplasia, returned to Dr. Garan's Oaran's office office for routine routine prenatal prenatal appointments. February 20, 2016 returned appointments. At her February 2016 1 1 of 12 [*FILED: 2] WESTCHESTER COUNTY CLERK 12/13/2019 10:46 AM NYSCEF DOC. NO. 60 INDEX NO. 63342/2017 RECEIVED NYSCEF: 12/12/2019 appointment, appointment, she was was 16 weeks, weeks, 4 days gestation, gestation, Dr. Garan Garan noted noted that that the fundal fundal height height was 16 and plaintiffs plaintiffs blood pressure was 132/72 and her weight pounds. Dr. Garan blood pressure weight was 196 pounds. Garan testified testified high blood blood pressure, pressure, and is not indicative indicative of of chronic chronic hypertension. hypertension. No that 132/72 is not high abnormalities 26, 2016, plaintiff presented abnormalities were were identified. identified. On April April 26, 2016, plaintiff presented to Dr. Garan Garan with complaints. plaintiff's blood complaints. It was noted noted that that plaintiffs blood pressure pressure was 130/80 130/80 and and her weight weight was 206 pounds. At tr..:s tl:~sappointment, Garan recognized recognized that there there was a question question as to whether whether pounds. appointment, Dr. Garan plaintiff was leaking leaking fluid. Upon Upon examination examination of of the pelvis, there was no fluid upon upon coughing. coughing. plaintiff pelvis, there Garan testified testified that that he performed ultrasound in order order to measure measure the amniotic amniotic fluid index, index, Dr. Garan performed an ultrasound confirmed that plaintiff ruptured upon upon examination. examination. On May 23 23,, 2016, 2016, at 29 weeks, weeks,. and confirmed plaintiff was not ruptured gestation, Dr. Garan Garan noted noted the fundal height height was 30, her blood pressure was was 124/72 124/72 and 5 days gestation, blood pressure weight was 209 pounds. pounds. Fetal Fetal heart heart rate and fetal movement movement were were noted. noted. A urine dipstick her weight urine dipstick negatIve for glucose glucose and revealed revealed trace albumin. albumin. At the June June 6, 2016 2016 appointment appointment at 31 test was negative weeks, 6 day gestation, gestation, Dr. Garan Garan noted noted that that the fundal height height was 31, plaintiffs' plaintiffs' blood blood pressure weeks, pressure 124/755 and her weight weight was 209 pounds. pounds. Plaintiff Plaintiff complained complained of of irregular irregular cramping cramping pain. was 124/7 pain. A dipstick test test was negative negative for glucose glucose and albumin. albumin. Dr. Garan Garan believed believed that that plaintiff's plaintiffs urine dipstick contractions were irregular, irregular, and explained explained that approximately approximately 32 weeks, weeks, it is not uncommon uncommon for contractions pregnant women women to experience experience Braxton Braxton Hicks Hicks contractions, contractions, but that that it his custom custom and practice, practice, to pregnant ,.'• advise a patient presenting with with similar similar complaints complaints as plaintiff plaintiff at approximately approximately 32 weeks weeks advise patient presenting gestation to go to the hospital hospital if if the pain pain became regular, meaning meaning persisting more than than two gestation became regular, persisting for more hours. On the morning morning of of June June 14th, 14t\ plaintiff plaintiff testified testified that she contacted contacted Dr. Garan's Garan's office office due abdomen, and was told to come come to the office, office, which Upon to pain pain in her back back and abdomen, which she did. Upon Garan'ss office, office, plaintiff plaintiff testified testified that that she waited waited in the waiting waiting room room for 2 to 3 arrival at Dr. Garan' 2 2 of 12 [*FILED: 3] WESTCHESTER COUNTY CLERK 12/13/2019 10:46 AM NYSCEF DOC. NO. 60 INDEX NO. 63342/2017 RECEIVED NYSCEF: 12/12/2019 While in the waiting waiting room, room, she described pain in her lower lower back back and abdomen abdomen as hours. While described the pain intense, and that that her hands hands and feet were swollen swollen and possibly possibly she had a headache, headache, which which intense, plaintiff does not remember remember if if she related related her headache headache to the receptionist. receptionist. Dr. Garan Garan saw plaintiff plaintiff, and performed performed various various tests tests which which were unremarkable, unremarkable, including including an ultrasound ultrasound which which plaintiff, revealed that that the placenta placenta was was in place place and there there was no clots clots or dark dark space space noted, noted, a positive positive revealed heartbeat was noted noted and amniotic fluid was normal. normal. Her cervix cervix remained remained long, long, closed closed and heartbeat and the amniotic posterior, and there there was no bleeding. bleeding. From From his examination examination of of plaintiff, plaintiff, Dr. Garan Garan believed believed that that posterior, plaintiff suffering from a pinched nerve. Dr. Garan's Garan's plan plan was for her to take take Tylenol; Tylenol; go for plaintiff was suffering pinched nerve. ultrasound appointment appointment scheduled next day; and for her to stay home home from from work work for a her ultrasound scheduled the next few days. After the June June 14thth appointment, appointment, plaintiffs plaintiffs father father picked picked her her up from from Dr. Garan's Garan's office, office, After drove her to pick pick up her car at her job, plaintiff then then drove drove home home from her job. and drove job, and plaintiff job. She believes approximately approximately 30 minutes minutes elapsed elapsed from the time time she left Dr. Garan's Garan's office office until until she believes arrived home. Her Her pain pain and complaints complaints remained remained the same. Shortly Shortly after after she arrived arrived home, home, her arrived husband left for work work and she went went to her bedroom bedroom to lay down. down. About About 30 minutes minutes later, later, she got husband iJed, she thought thought that that her water water broke, broke, but she observed observed blood blood all over over the bed and up and out of l>ed, called 911 and and was taken taken to Jacobi Jacobi Medical Medical Center Center by EMS. EMS. floor. She called Plaintiff arrived arrived at Jacobi Jacobi Medical Medical Center Center by ambulance ambulance at 9: 19 PM, the evening evening of of June June Plaintiff admitted to the Labor Labor and Deliver Deliver Unit Unit at 9:40 9:40 PM. At 10:15 PM, PM, labs were 14. She was admitted collected and sent laboratory. At 11 11:20PM bedside ultrasound ultrasound was was performed which collected sent to laboratory. :20PM,, a bedside performed which confirmed the intrauterine intrauterine fetal demise. demise. Plaintiff Plaintiff had suffered suffered a placental abruption. confirmed placental abruption. These circumstances lead lead to this action, action, and this this court's court's consideration consideration of of defendants' defendants' These circumstances motion for summary summary judgment. motion judgment. 3 3 of 12 [*FILED: 4] WESTCHESTER COUNTY CLERK 12/13/2019 10:46 AM NYSCEF DOC. NO. 60 INDEX NO. 63342/2017 RECEIVED NYSCEF: 12/12/2019 that "a "a proponent proponent of of a summary summary judgment motion must must make prima It is well settled settled that judgment motion make a prima showing of entitlement to judgment matter of of law, law, tendering tendering sufficient evidence to of entitlement judgment as a matter sufficient evidence facie showing demonstrate the absence absence of of any material material issues issues of of fact" (Alvarez (Alvarez v Prospect Prospect Hosp. Hosp.,, 68 NY2d demonstrate NY2d 320,324 [1986];; see Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d 320, 324 [1986] AD3d 684, 684, 686Dept 2007]; 2007]; see also Rea v Gallagher, AD3d 731 [2d Dept Dept 2007]). 2007]). Once Once the movant 687 [2d Dept Gallagher, 31 AD3d movant threshold burden, burden, the opposing opposing party must must present present the existence triable issues has met this threshold existence of of triable issues of of York, 49 NY2d [1980];; see also Khan v Nelson, AD3d fact (see Zuckerman Zuckerman v New New York, NY2d 557, 562 [1980] also Khan Nelson, 68 AD3d Dep,t 2009]). 2009]). Conclusory, Conclusory, unsubstantiated unsubstantiated assertions assertions will not not suffice motion 1062 [2d Dep} suffice to defeat defeat a motion summary judgment Bank of of New Sokol, 128 AD2d AD2d 492 [2d Dept Dept for summary judgment (Barclays (Barclays Bank New York, N.A. N.A. v Sokol, party opposing opposing a motion motion for summary basis of of deposition deposition 1987]). A party summary judgment judgment may do so on the basis testimony as well as other other admissible admissible forms of evidence, including including an expert' expert's s affidavit, testimony of evidence, affidavit, and eyewitness testimony testimony (Marconi (Marconi v Reilly. 254 AD2d AD2d 463 [2d Dept Dept 1998]). 1998]). In deciding motion . eyewitness deciding a motion summary judgment, court is required required to view view the evidence presented "in "in the light light most most for summary judgment, the court evidence presented favorable to t½ tlJe party opposing opposing the motion motion and to draw every reasonable inference from the favorable e party draw every reasonable inference pleadings and the proof proof submitted submitted by the parties parties in favor favor of of the opponent opponent to the pleadings the motion" motion" (Yelder (Yelder Walters, 64 AD3d AD3d 762, 762, 767 [2d Dept Dept 2009]; Tedlen Realty Realty Com., AD2d v Walters, 2009]; see Nicklas Nicklas v Tedlen Corp .. 305 AD2d 385,386 Dept 2003]). 2003]). The The court must accept presented by the 385, 386 [2d Dept court must accept as true the evidence evidence presented nonmoving party party and must must deny deny the motion motion if if there there is "even "even arguably arguably any doubt doubt as to the nonmoving existence of of a triable triable issue" issue" (Kolivas (Kolivas v Kirchoff, Kirchoff. 14 AD3d AD3d 493 [2d Dept Dept 2005]); 2005]); Baker Baker v. existence Briarcliff Scltool ScHool Dist., Dist., 205 AD2d AD2d 652,661-662 Dept 1994 1994]). Moreover, issue finding, as Briarcliff 652,661-662 [2d Dept ]). Moreover, issue finding, opposed to issue issue determination, determination, is the key to summary summary judgment (Krupp v Aetna opposed judgment (Krupp Aetna Life & Cas. AD2d 252, 261 [2d Dept Dept 1984]). Summary Summary judgment drastic remedy remedy and 252,261 judgment is a drastic and should should not Co., 103 AD2d 4 4 of 12 [*FILED: 5] WESTCHESTER COUNTY CLERK 12/13/2019 10:46 AM NYSCEF DOC. NO. 60 INDEX NO. 63342/2017 RECEIVED NYSCEF: 12/12/2019 granted where where there there is any doubt doubt as to existence existence of of a triable triable issue issue (Alvarez (Alvarez v Prospect Prospect be granted Hospital, Hospital, 68 NY2d NY2d 320,324 320,324 [1986]). [1986]). establish the liability liability of of a physician medical malpractice,. malpractice, a plaintiff plaintiff must must prove prove To establish physician for medical deviated or departed departed from accepted accepted community community standards standards of of practice, practice, and that that that the physician physician deviated departure was a proximate proximate cause cause of plaintiffs injuries" injuries" (Stukas (Stukas v Streiter, Streiter, 83 AD3d AD3d such departure of the plaintiffs Dept 2011 2011]). If a defendant defendant demonstrates demonstrates only that that he or she did not not depart depart from good good 18,23 [2d Dept ]). If accepted medical medical practice, practice, plaintiff plaintiff need only raise a triable triable issue issue of of fact as to whether whether such such and accepted departure occurred. occurred. The plaintiff is required required to raise a triable triable issue issue of of fact as to causation causation only a departure The plaintiff event that that the defendant defendant makes makes an independent independent prima prima facie showing showing that that any claimed claimed in the event departure was not a proximate proximate cause cause of of the plaintiffs injuries" (Stukas (Stukas v Streiter, Streiter, 83 AD3d AD3d 18 . departure plaintiffs injuries" establish proximate proximate cause cause in a medical medical malpractice malpractice action, action, "a plaintiff plaintiff needs needs do no more more than than To establish sufficient evidence evidence from which which a reasonable reasonable person person might might conclude conclude that that it was more more offer sufficient probable than than not that that the injury injury was caused by the defendant" defendant" (Johnson (Johnson v Jamaica Jamaica Hospital Hospital probable was caused Medical Center, Center, 21 AD3d AD3d 881, 883 [2d Dept Dept 2005] citing citing Holton Holton v Sprain Sprain Brook Brook Manor Manor Nursing Medical Nursing AD2d 852 [2d Dept Dept 1998]; see Clarke v Limone, Limone, 40 AD3d AD3d 571 571,, 571-572 571-572 [2d Dept Dept Home, 253 AD2d see Clarke 2007]). Since the burden burden of of proof proof does not ask the plaintiff plaintiff to eliminate eliminate every every possible possible cause cause of of 2007]). "the plaintiffs plaintiffs expert expert need not quantify quantify the exact exact extent extent to which which a particular particular act or . her injury, "the omission decreased decreased a patient's patient's chances chances [of [of a cure increased her injury] injury],, as long long as the jury omission cure or increased jury can probable that that some diminution" in the plaintiffs chance of of a better better outcome outcome infer that it was probable some diminution" plaintiff's chance (Jump v Facelle, Facelle, 275 AD2d AD2d 345 345,, 346 [2d Dept Dept 2000] 2000];; see Flaherty Flaherty v Fromberg. Fromberg, 46 AD3d AD3d 743, (Jump Dept 2007]; 2007]; Calvin Calvin v New York Medical Medical Group, Group, P.C., P.C., 286 AD2d AD2d 469, 469, 470 [2d Dept Dept 745 [2d Dept New York 2001]). 2001]). 5 5 of 12 [*FILED: 6] WESTCHESTER COUNTY CLERK 12/13/2019 10:46 AM NYSCEF DOC. NO. 60 INDEX NO. 63342/2017 RECEIVED NYSCEF: 12/12/2019 To successfully successfully oppose judgment dismissing oppose a motion motion for summary summary judgment dismissing a cause cause of of action action for medical malpractice, malpractice, a plaintiff must submit submit a physician's affidavit of of merit merit attesting attesting to medical plaintiff must physician's affidavit (depending defendant's prima accepted practice and/or (depending on the defendant's prima facie showing) showing) a departure departure from from accepted practice and/or containing the attesting doctor's opinion opinion that the omissions omissions or departures departures were were a competent competent containing attesting doctor's of the injury 242 AD2d producing cause producing cause of injury (Domaradzki (Domaradzki v Glen Glen Cove Cove Ob/Gyn Ob/Gyn Associates, Associates, 242 AD2d 282 [2d Conclusory or general general allegations allegations of of medical medical malpractice, malpractice, "unsupported "unsupported by Dept 1997]). Conclusory competent evidence evidence tending tending to establish establish the essential elements are insufficient insufficient to defeat defeat a motion motion competent essential elements summary judgment" (Mendez v City of of New New York, 295 AD2d AD2d 487 [2d Dept Dept 2002]). 2002]). for summary judgment" (Mendez support of of his motion motion for summary summary judgment, Garan offers offers the affirmation affirmation of of In support judgment, Dr. Garan Fleischer, M.D., M.D., who affirms affirms that that he is licensed licensed to practice practice medicine medicine in New York State, State, Adiel Fleischer, New York board certified certified in obstetrics obstetrics and gynecology, gynecology, and maternal maternal fetal medicine. medicine. He set forth the and is board records and materials materials which which he reviewed reviewed in rendering rendering his opinion. opinion. Dr. Fleischer Fleischer stated stated that that it is records opinion within within a reasonable reasonable degree degree of of medical medical certainty that Dr. Garan Garan treated treated plaintiff his opinion certainty that plaintiff appropriately and did not deviate deviate from the standard standard of of medical medical practice practice in any of of the care and appropriately treatment provided; provided; there there were were no departures departures form good good and accepted accepted standards standards of of medical medical care treatment Garan. which which were were a proximate proximate cause cause of of plaintiff's plaintiff s alleged alleged injuries; injuries; and that that the care and by Dr. Garan_ treatment rendered rendered to the plaintiff plaintiff did not cause cause or contribute contribute to any of injuries alleged. alleged. treatment of the injuries addition, Dr. Garan Garan appropriately appropriately examined assessed her her condition condition during during each each In addition, examined plaintiff plaintiff and assessed of her prenatal prenatal appointments; appointments; properly properly documented documented all of plaintiffs significant clinical findings findings of of plaintiff's significant clinical during each ~ach appointment; appointment; the size of of the fetus was always always consistent with gestational gestational age; Dr. during consistent with Garan appropriately appropriately began began urine urine samples samples after after 20 weeks weeks of of gestations gestations and and admitted that he Garan admitted that performs a urine mine dipstick dipstick for numerous numerous reasons, reasons, including including the detection detection of of proteinuria, proteinuria, which which is performs common during during pregnancy, but a abnormal amount of of protein urine can can be indicative indicative of of common pregnancy, but abnormal amount protein in the urine 6 6 of 12 [*FILED: 7] WESTCHESTER COUNTY CLERK 12/13/2019 10:46 AM NYSCEF DOC. NO. 60 INDEX NO. 63342/2017 RECEIVED NYSCEF: 12/12/2019 preeclampsia. That all of of plaintiffs plaintiffs urine urine samples samples during during the pregnancy pregnancy were were negative negative except except preeclampsia. That ~here it revealed revealed trace trace albumin, albumin, which which in Dr Fleisher's Fleisher's opinion opinion is not significant, significant, for May 23, ~here nor does it require require further further testing. testing. It is also Fleisher's Fleisher's opinion, opinion, that that blood blood pressure pressure was properly properly monitored; examination examination of of the cervix cervix remained remained closed, closed, and that that Dr. Garan Garan believed that plaintiff believed that plaintiff monitored; experiencing irregular irregular contractions contractions or Braxton Braxton contractions. contractions. Fleisher Fleisher believes believes that that Dr. Garan Garan was experiencing advising plaintiff plaintiff to go to the hospital hospital if ifher became regular regular was was sound sound medical advice. In advising her pain became medical advice. opinion, Dr. Garan Garan performed performed all necessary necessary testing testing on June June 14 in light light of of plaintiffs plaintiffs prenatal prenatal his opinion, complaints and her clinical clinical presentation, presentation, including including an examination examination of of the cervix, cervix, and ultra ultra sound sound complaints testing to evaluate evaluate the amniotic amniotic fluid index. It was also his opinion opinion that that on June June 141th\ , Dr. and testing Garan appropriately appropriately appreciated appreciated plaintiffs blood pressure pressure and took took it twice. twice. Garan plaintiffs blood expert explains explains that that preeclampsia serious blood pressure disorder disorder that that is more more The expert preeclampsia is a serious blood pressure occur in women women with with chronic chronic high blood blood pressure. pressure. Symptoms Symptoms of of preeclampsia can likely to occur preeclampsia can include high blood blood pressure pressure ad proteinuria. proteinuria. It is the expert's expert's opinion, opinion, that that the standard standard of of care for include patient with: with preeclampsia includes monitoring monitoring the patient patient regarding regarding blood blood pressure pressure and a patient preeclampsia includes observing fetal through, through, which which was done done here. In addition, addition, its his opinion opinion that that plaintiffs plaintiffs observing complaints on June June 14, 2016, 2016, were not consistent consistent with with preeclampsia ·.symptoms symptoms and complaints preeclampsia and did not require a change change in the treatment treatment plan, insofar as plaintiff plaintiff failed failed to make make complaints complaints of of edema, edema, require plan, insofar nausea, changes changes in vision vision or severe severe pain pain in her stomach. stomach. Also Also the expert expert believes that plaintiff nausea, believes that plaintiff active labor labor on June June 14th 14th, , as evidenced evidenced by Dr. Garan's Garan's examination examination of of her cervix, cervix, was not in active which remained remained closed, closed, and and that that she did not have any severe severe features features of of preeclampsia time which preeclampsia at the time of her June 14, 2016 2016 presentation presentation including including blood pressure of of 160/110, 160/110, seizures seizures or severe severe of blood pressure headaches. She did not possess increased risk factor factor of of preeclampsia notwithstanding headaches. possess any increased preeclampsia notwithstanding Jacobi records records document document that plaintiff plaintiff had previously previously delivered delivered a full term term baby, baby, was not obesity. Jacobi 7 7 of 12 [*FILED: 8] WESTCHESTER COUNTY CLERK 12/13/2019 10:46 AM NYSCEF DOC. NO. 60 INDEX NO. 63342/2017 RECEIVED NYSCEF: 12/12/2019 diagnosed with with preeclampsia during her prior prior pregnancy, pregnancy, and did not not have have a history history of of diagnosed preeclampsia during hypertension hypertension and was of of advanced advanced maternal maternal age. age. As plaintiff plaintiff was was not demonstrating demonstrating any symptoms consistent consistent with with preeclampsia preeclampsia and did not present greater risk, risk, the decision decision to present a greater symptoms discharge plaintiff office and have have her follow follow up in the morning morning was was well within within the discharge plaintiff from his office standard of of care. standard causation, there there was no evidence evidence that an abruption abruption was was imminent imminent at the time time that As to causation, plaintiff left Dr. Garan's Garan's office office in the afternoon afternoon of of June June 14th. It is Dr. Dr. Fleisher' Fleisher's s opinion, opinion, that plaintiff placental abruption abruption that that plaintiff suffered after after leaving leaving Dr. Garan's Garan' s office office on June 2016, plaintiff suffered June 14, 2016, the placental sudden event event that that was completely completely unforeseeable unforeseeable and could could not not have have been prevented. Even Even was a sudden been prevented. if the fetus was delivered delivered earlier earlier on June June 14, 14,2016, after plaintiffs plaintiffs bleeding episode would would have have if 2016, after bleeding episode resulted in a stillborn stillborn baby infant suffering suffering from hypoxia. hypoxia. resulted baby or infant However, while while Dr. Fleischer Fleischer identifies identifies facts supporting supporting his conclusion conclusion that that the abruption abruption However, event which which occurred occurred on June 14, 14,2016, which could could not not have have been avoided, was a sudden sudden event 2016, which been avoided, plaintiffs expert expert 1I concludes concludes that that plaintiffs plaintiffs symptoms symptoms required required intervention intervention on June June 141t\\ at the plaintiffs time of of her final prenatal examination. prenatal examination. Plaintiffs expert, expert, a physician physician licensed licensed to practice medicine in New New York York and New Plaintiffs practice medicine New Jersey, board certified in Obstetrics Obstetrics and Gynecology, Gynecology, opines that Dr. Garan Garan departed departed from from the Jersey, board certified opines that standard of of c<Ue C<llewhen when he failed failed to appreciate appreciate and timely timely act upon upon plaintiffs complaint in light light of of plaintiffs complaint standard elevated blood June 14, 14,2016, failing to diagnose diagnose preeclampsia based upon upon her elevated blood pressure pressure on June 2016, and failing preeclampsia based 1lContrary Contrary to defendants' defendants' contentions contentions that that plaintiffs plaintiffs expert's expert's affirmation affirmation is not not in proper form, form, and and should should be submitted to the the court, court, plaintiff plaintiff has has submitted the Expert Expert proper be submitted submitted the Affidavit for the the court's court's review, review, and and upon upon this this court's court's review, review, the the court court shall shall consider consider Affidavit plaintiffs expert's affidavit affidavit for the the purposes purposes of the instant motion. motion. plaintiffs expert's the instant < • < 8 8 of 12 [*FILED: 9] WESTCHESTER COUNTY CLERK 12/13/2019 10:46 AM NYSCEF DOC. NO. 60 INDEX NO. 63342/2017 RECEIVED NYSCEF: 12/12/2019 complaints and clinical clinical signs signs and symptoms. further opinion opinion that that Dr. Garan's Garan' s departures departures complaints symptoms. It is his further were competent competent producing producing caused caused of of plaintiffs injuries, including including the loss of of her her baby. plaintiffs injuries, Plaintiffs expert expert points records from Jacobi Jacobi Hospital Hospital indicate indicate that that plaintiffs Plaintiffs points out that the records plaintiffs blood pressure upon arrival arrival was 154/77. 154/77. It is plaintiffs plaintiffs expert's expert's opinion opinion that that Dr. Garan Garan deviated deviated blood pressure upon standard of of care and his deviations proximate cause of plaintiffs plaintiff s injuries, injuries, deviations were the proximate cause of from the standard including the loss of of her baby; and Dr Garan Garan failed to timely timely act upon upon plaintiff's plaintiffs complaints complaints of of including severe back abdominal pain edema in her hands hands and feet in light light of of her high high blood severe back pain pain and abdominal pain and edema blood pressure June 14, 14,2016. These complaints complaints and symptoms warranted further further investigation investigation as pressure on June 2016. These symptoms warranted suggestive of of preeclampsia preeclampsia which which can be a potentially potentially dangerous dangerous complication complication during during they were suggestive pregnancy that can affect affect the mother mother and fetus fetus.. One of of the complications complications of of preeclampsia pregnancy preeclampsia is placental abruption abruption and fetal demise. demise. If a doctor doctor suspects suspects preeclampsia, preeclampsia, there there are several several tests placental performed to rule out or diagnose diagnose preeclampsia preeclampsia such blood test test to measure measure liver liver or that can be performed such as blood kidney function, function, a 24 hour hour urine urine analysis. analysis. It is plaintiffs expert opinion opinion that that plaintiff plaintiff had signs signs kidney plaintiff's expert symptoms of of severe severe preeclampsia preeclampsia at the time she presented Garan's office office on June June 14, presented to Dr. Garan's and symptoms 2016 that warranted warranted immediate immediate intervention intervention by sending sending her to the hospital hospital following following his 2016 evaluation for further further work work up and/or and/or immediate immediate delivery delivery of of the baby. On June June 14, 14,2016, 2016, she evaluation presented to Dr. Garan's Garan's office office with with complaints complaints of of severe severe abdominal abdominal and back pain which which presented back pain radiated to her right right groin, groin, swelling hands and feet, and headache. headache. Plaintiff Plaintiff had high radiated swelling in her hands blood time she presented presented to his office office on June June 14thth as it was was noted noted to be 139/84 139/84 blood pressure pressure at the time which fall under Stage 1 hypertension. hypertension. Dr. Garan's Garan's failure failure to send send plaintiff plaintiff to the hospital which under Stage hospital immediately following following his evaluation evaluation on June June 14, 14,2016, departure from from the standard standard of of immediately 2016, was a departure Based on her complaints complaints and her high high blood signs and and symptoms symptoms of of care. Based blood pressure, pressure, she had signs severe preeclampsia which warranted warranted urgent intervention. Dr. Garan's Garan's failure failure to send send plaintiff plaintiff to severe preeclampsia which urgent intervention. 9 9 of 12 [*FILED: 10] WESTCHESTER COUNTY CLERK 12/13/2019 10:46 AM NYSCEF DOC. NO. 60 INDEX NO. 63342/2017 RECEIVED NYSCEF: 12/12/2019 the hospital hospital immediately immediately following following his evaluation evaluation on June June 14, 2016, 2016, deprived deprived plaintiff plaintiff of of the chance for timely timely treatment treatment of of her preeclampsia preeclampsia had Dr. Garan Oaran done done so, so, plaintiff plaintiff would would have have chance . received received timely timely intervention intervention and treatment treatment for preeclampsia either by being being placed placed under under close close preeclampsia either observation or immediately immediately delivering delivering the baby. plaintiff had received received timely timely intervention intervention and baby. If plaintiff observation treatment, either either a placental placental abruption abruption could could have been avoided or if if placental placental abruption abrupt ion did treatment, been avoided occur at the hospital, hospital, providers providers there there would would have been promptly address address same same thus occur been able to promptly thus increasing her chances chances of of safely safely delivering delivering her baby. Plaintiff s expert expert finds finds Dr. Garan's Oaran' s office office increasing baby. Plaintiffs record on June June 14thth,, noting noting that that plaintiffs urine was negative negative for protein, protein, is suspect suspect in light light that plaintiffs urine record Jacobi records records indicate indicate that that she had proteinuria proteinuria at the ti~e time she was tested tested in Dr. Garan' Oaran'ss office office Jacobi Proteinuria is one of of the cardinal cardinal features features of of preeclampsia, preeclampsia, especially especially if if the onset onset is on that day. Proteinuria weeks gestation. gestation. Had a urine urine analysis analysis or dipstick dipstick been been performed performed at Dr. Garan' Oaran'ss office office after 20 weeks June 1411\h, it would would have have revealed revealed the presence presence of of proteinurea. proteinurea. on June In this record, record, primarily Fleisher's s affirmation, affirmation, defendants' defendants' evidence, evidence, primarily based based on Dr. Fleisher' consisting of of medical medical records, records, deposition deposition testimony testimony and expert expert medical medical affirmation, affirmation, and all other other consisting proof, Oaran failed failed to eliminate triable issues issues of of fact concerning concerning the treatment treatment and care proof, Dr. Garan eliminate all triable provided plaintiff, plaintiff, including including for plaintiffs plaintiffs blood blood pressure pressure on June June 14thth, , and and her other other that he provided conditions, leading leading to the fetus demise. demise. Dr. Garan's Oaran's failure failure to tender tender evidence evidence sufficient sufficient to conditions, eliminate any material material issues issues of of fact requires requires denial denial of of the motion motion for summary summary judgment, eliminate judgment, regardless of of sufficiency sufficiency of of opposing opposing papers papers (Rentz (Rentz v Modell, Modell, 262 AD2d AD2d 545 [2d Dept Dept 1999]). regardless event, as is the case case here, here, summary summary judgment appropriate "where "where the parties parties In any event, judgment is not appropriate adduce conflicting conflicting medical medical expert expert opinions, opinions, as such issues issues of of credibility credibility can can only be resolved resolved by adduce (Contreras v Adeyemi Adeyemi 102 AD3d AD3d 720, 720, 721 [2d Dept Dept 2013]). 2013]). a jury" jury" (Contreras 10 10 of 12 [*FILED: 11] WESTCHESTER COUNTY CLERK 12/13/2019 10:46 AM NYSCEF DOC. NO. 60 INDEX NO. 63342/2017 RECEIVED NYSCEF: 12/12/2019 establish a cause cause of of action action to recover recover damages damages for malpractice malpractice based informed To establish based on informed consent, a plaintiff plaintiff must must prove prove (1) that the person person providing providing the professional professional treatment treatment failed to consent, disclose alternatives alternatives thereto thereto and failed to inform inform the patient patient of reasonably foreseeable foreseeable risks risks of reasonably disclose associated with with the treatment treatment and the alternatives alternatives that a reasonable reasonable medical medical practitioner would associated practitioner would disclosed in the same same circumstances, circumstances, (2) that that a reasonably reasonably prudent would not have have disclosed prudent patient patient would undergone the treatment treatment if if he or she had been been fully informed, that the lack lack of informed informed, and (3) that of informed undergone consent is a proximate proximate cause cause of of the injury (Public (Public Health Health Law Law §2805-d(l) S2805-d(l) ; see also Magel Magel v John John consent Mather Memorial Memorial Hospital, Hospital, 95 AD3d AD3d 1081 [2d Dept Dept 2012]). 2012]). T. Mather Plaintff alleges alleges that that Dr. Garan Garan failed to disclose disclose to plaintiff plaintiff the risks, risks, benefit benefit and Plaintff and alternatives of of the courses courses of of treatment treatment undertaken undertaken by Dr. Garan Garan and those those facts that that a reasonable reasonable alternatives physician would would under under similar similar circumstances, circumstances, including including failing failing to advise advise plaintiff plaintiff of of the risks; risks; physician symptoms of of preeclampsia; preeclampsia; failing failing to advise advise the plaintiff plaintiff of of of the consequences consequences of signs and symptoms ignoring signs and symptoms symptoms of of preeclampsia; preeclampsia; failing failing to disclose plaintiff the risk risk of ignoring disclose to plaintiff of not performing an immediate immediate C-section; C-section; failing failing to disclose disclose to plaintiff plaintiff the risk risk of immediately performing of not immediately presenting to the emergency emergency room; room; failing failing to disclose disclose to the patient patient the the signs of placental placental presenting signs of abruption and the risks risks of of same same and failing failing to disclose disclose how how placental placental abruption; abruption; and abruption preeclampsia would would impact impact the well-being well-being of of the fetus. preeclampsia F~eisher opines opines plaintiff's plaintiff s lack of of informed informed consent consent claim claim is meritless, meritless, insofar insofar as Dr. Fleisher plaintiff has failed to identify identify any procedures procedures that that plaintiff plaintiff underwent underwent while while under under the care of plaintiff of Dr. Garan and has failed failed to specify specify what what risks, risks, hazards, hazards, complications complications and alternatives plaintiff plaintiff was Garan and alternatives allegedly not advised advised of by defendant. defendant. Upon Upon his review review of of the relevant relevant medical medical records records ad allegedly ofby deposition testimony, testimony, plaintiff plaintiff was advised of the risks, risks, hazards alternatives of of the ordinary ordinary hazards and alternatives deposition advised of course of of treatment treatment being being rendered rendered during during the pregnancy. pregnancy. course 11 11 of 11 12 [*FILED: 12] WESTCHESTER COUNTY CLERK 12/13/2019 10:46 AM NYSCEF DOC. NO. 60 INDEX NO. 63342/2017 RECEIVED NYSCEF: 12/12/2019 In addition, addition, plaintiff plaintiff'ss counsel counsel claims claims that Dr. Garan Garan was negligent negligent from November November 2015 through through July 2016. Yet, Yet, plaintiff plaintiff did not begin begin treatments treatments with Dr. Garan Garan until until January January 2016. 2016. In any event, judgment as to the informed event, since since plaintiff plaintiff does does not oppose oppose summary summary judgment informed consent consent claim, claim, summary judgment judgment is granted granted dismissing dismissing plaintiff's plaintiffs informed informed consent consent cause cause of of action. action. summary Likewise, Likewise, defendant defendant is entitled entitled to dismissal dismissal of of all claims claims of of negligence negligence which which plaintiff plaintiff has addressed in opposition. opposition. not addressed court has considered considered the remainder remainder of of the factual factual and legal contentions contentions of of the parties, parties, The court extent not specifically specifically addressed addressed herein, herein, finds them them to be either either without without merit merit or and to the extent rendered moot moot by other other aspects aspects of of this Decision Decision and Order. This This constitutes constitutes the Decision Decision and rendered Order of of the Court. Court. Order Accordingly, Accordingly, it is hereby: hereby: ORDERED, that that the motion motion for summary judgment of defendants defendants is granted granted to the ORDERED, for summary judgment of extent that causes causes of of action action relative relative to informed informed consent consent and negligence negligence are dismissed, dismissed, and extent denied denied otherwise; otherwise; and it is further further ORDERED, that that the parties parties are directed directed to appear appear on ORDERED, Jan.· '2.1 ,,20~, 9:15AM, in Jo..n 20 ~, at 9:15AM, Courtroom 1600, the Settlement Settlement Conference Conference Part, at the Westchester Westchester County County Courthouse, Courthouse, 111 111 Courtroom Martin Luther Luther King King Jr. Blvd., Blvd., White White Plains, Plains, New York 10601. Dr. Martin New York The Clerk shall shall mark mark his records records accordingly. accordingly. The Clerk Dated: December December 12, 2019 2019 Dated: White Plains, Plains, New York White New York HON. CHARLES D. WO Justice of the Supreme Co To: To: Parties by NYSCEF NYSCEF All Parties 12 12 of 12
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