Sokol v Lyncan Ung

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Sokol v Lyncan Ung 2019 NY Slip Op 34360(U) November 6, 2019 Supreme Court, Suffolk County Docket Number: 619695/2016 Judge: Joseph A. Santorelli 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] SUFFOLK COUNTY CLERK 11/08/2019 03:42 PM NYSCEF DOC. NO. 77 SHORHO.Q INDEX NO. 619695/2016 RECEIVED NYSCEF: 11/08/2019 Rt GI INDEX No. No. 619695/2016 INDEX 619695/2016 SUPREME NEW YORK YORK SUPREME COURTCOURT - STATE STATE OF NEW SUFFOLK COUNTY I.A.S. PART PART 10 - SUFFOLK LA.S. COUNTY PRESENT: PRESENT: Hon. MOTION DATE 5,.17-19 MOTION DATE 5-17-19 SUBMIT DATE 10-10-19 SUBMIT DATE 10-10-19 MG Mot. Seq. # 02 - MG - MG # 03 03 -MG JOSEPH JOSEPH A. SANTORELLI SANTORELLI the Supreme Justice Justice of of the Supreme Court Court ---------------------------------------------------------------X ------------------------------------~--------------------------X KRENTSEL & GUZMAN, LLP KRENTSEL GUZMAN, LLP Allorneysfor Plaintiff Attorneys for Plaintiff Battery Place, Place, Suite 17 Battery Suite 604 604 New York, NY 10004 New York, NY 10004 KATHLEEN KATHLEEN SOKOL, SOKOL, Plaintiff, Plaintiff, .-- against against- - L YNCAN UNG, UNG, D.O., D.O., M.D., LYNCAN M.D., MICHAEL MICHAEL SLATTERY, KIMBERLY LEVY, LEVY, SLATTERY, M.D., M.D., and KIMBERLY RPA-C, RPA-C, Defendants. Defendants. LEWIS JOHS JOHS AVALLONE AVALLONE & AVILES A VILES LEWIS Attorney for for DefendantDefendant- UNG Attorney One Plaza, Suite Suite 225 225 One CA Plaza, Islandia, New New York York 11749 11749 Islandia, FUMUSO, KELLY, KELLY, SWART, SWART, FARRELL, FARRELL, FUMUSO, POLIN & CHRISTESEN, LLP POLIN CHRISTESEN, LLP Attorney for for DefendantDefendant- SLATTERY Attorney SLATTERY Suite 500 110 Marcus Marcus Blvd., Blvd., Suite 500 Hauppauge, New New York York 11788 Hauppauge, 11788 KERLEY WALSH WALSH MATERA MATERA & KERLEY & CINQUEMANJ, P.C. CINQUEMANI, P.C. Atlorney for for DefendantDefendant- LEVY LEVY Attorney 217 venue 217 4 Jackson Jackson A Avenue Seaford, New Seaford. New York York 11783 I 1783 ---------------------------------------------------------------X --------------------------------~----~-------------------------X Upon following papers read on this this motions motions for summary judgment; Notice Notice of Motion/ Order Upon the following papers numbered numbered 1I to 54 read summary judgment; of Motion/ Order to Show Cause Cause and supporting supporting papers papers 1l - 11 & 29 - 39 (#03) (#03) :; Notiee ofCIoss alid supporting supporting papels l l (#02) (#02) & Notice of Cto.'l.'l Motion Motion 1:111d papc1 s __ __ :;-Answering Affidavits supporting papers papers 12 - 19 (#02) (#02) & & 40 - 47 (#03) (#03) ; Replying supporting papers :;-Answering Affidavits and supporting Replying Affidavits Affidavits and supporting papers (#02) & 48 - 54 (#03) (#03) ; Otl,er_, 8thel_, (and (and aftel heating counsel eounsel in suppmt support alid opposed to the 20 - 28 (#02) afkr !tearing and opposed the motion) lilotion) it is, Defendant Lyncan Lyncan Ung, D.O., M.D., M.D., moves moves for an order order granting granting summary summary judgment and Defendant Ung, D.O., judgment and dismissing the complaint complaint against against him. him. Defendant Defendant Kimberly Kimberly Levy, Levy, RPA-C, RP A-C, separately separately moves moves for an dismissing order granting granting summary summary judgment and dismissing dismissing the the complaint complaint against against her. The The plaintiff opposes order judgment and plaintiff opposes both of these these motions motions arguing arguing that that there there are issues issues of of fact requiring requiring a trial. trial. both of this medical medical malpractice malpractice action, action, it is asserted asserted that that the the defendants defendants negligently negligently departed departed In this good and accepted accepted standards standards of of care care and and practice practice when when the the plaintiff, plaintiff, Kathleen Kathleen Sokol, Sokol, came came from good under their their care care and and treatment treatment on or about about May May 12, 2016 2016 and thereafter. thereafter. It is asserted asserted that that the under defendants failed failed to timely timely diagnose diagnose and treat treat multiple multiple foot fractures, fractures, appreciate appreciate the severity severity of of her her defendants 1 of 7 [*FILED: 2] SUFFOLK COUNTY CLERK 11/08/2019 03:42 PM NYSCEF DOC. NO. 77 INDEX NO. 619695/2016 RECEIVED NYSCEF: 11/08/2019 Sokol v Ung, et al. Index No. 619695/2016 Index No. 619695/2016 Page NO.2 Page No. 2 complaints, order order necessary necessary diagnostic diagnostic tests radiological film studies, studies, properly interpret tests tests complaints, tests and radiological properly interpret studies taken, taken, order order consultation, consultation, facilitate facilitate wound wound healing healing and and improperly discharged her. and studies improperly discharged emergency department department at Brookhaven Brookhaven Memorial Hospital, The plaintiff plaintiff presented presented at the emergency Memorial Hospital, hereinafter referred referred to as "BMH", "BMH", on May May 12, 12,2016, 2:22pm after after reporting dropped a 2016, at 2:22pm reporting that that she dropped hereinafter patio table on her right right foot. Defendant employed by BMH. Sokol patio table Defendant Levy is a Physician's Physician's Assistant Assistant employed BMH. Sokol triage nurse who noted small amount amount of of swelling swelling on her her foot given her less was seen by a triage nurse who noted a small foot and and given urgent presentation presentation she was was treated treated within Fast Track Track by defendant defendant urgent within the Emergency Emergency Department's Department's Fast Defendant Ung Ung was listed listed as the "attending/supervising "attending/supervising physician" physician" but but did not see the Levy. Defendant plaintiff, or speak speak with with defendant defendant Levy, while while she was in the Fast Fast Track. Track. Defendant Levy plaintiff, Defendant Levy performed an examination examination of ordered a foot x-ray conducted. At 3: 13pm the of the plaintiff plaintiff and ordered x-ray to be conducted. performed Defendant Slattery Slattery was the interpreting interpreting radiologist who reviewed foot x-ray was performed. performed. Defendant radiologist who reviewed the ximages and authored report wherein wherein it was indicated negative for right right ray images authored the report indicated that that the x-ray x-ray was was negative Defendant Levy Levy reviewed reviewed Slattery's Slattery's report diagnosed the plaintiff foot fracture. Defendant report and diagnosed plaintiff with with a contusion. Levy directed directed the the plaintiff plaintiff to maintain bandage on the foot, utilize antimaintain an ace bandage utilize anticontusion. inflammatories, use crutches, crutches, utilize compression, elevation), elevation), and be weightinflammatories, utilize RICE RICE (rest, ice, compression, weightbearing as tolerated. tolerated. Levy Levy also instructed plaintiff that "if there there are any other other changes changes or bearing instructed the plaintiff that "if worsening of of symptoms symptoms patient return to ed". The plaintiff her discharge discharge paperwork patient is to return plaintiff signed signed her paperwork worsening wherein advised to follow-up follow-up within within 1-2 days with regular doctor. doctor. The The plaintiff plaintiff was with her regular wherein she was advised discharged at 3:51pm 3:51pm from from BMH. BMH. On May 14, 14,2016, defendant Ung signed off chart and 2016, defendant Ung signed off on the chart discharged wrote "patient was seen seen independently independently by PA\NP. I reviewed reviewed documentation, documentation, agree agree with with treatment treatment wrote "patient plan, and cosigned cosigned the the chart." chart." The plaintiff health care and plan, plaintiff did not see a health care provider provider as instructed instructed but rather presented presented to the Good Good Samaritan Samaritan Hospital referred to as "GSH", "GSH", on May Hospital ER, hereinafter hereinafter referred May 26, rather complained that that there there was still something something wrong with her foot. At GSH GSH the consulting consulting 2016. She complained wrong with podiatrist ordered ordered another another x-ray x-ray which followed by a CT scan. The CT CT scan scan demonstrated demonstrated podiatrist which was was followed fractures along along various various aspects aspects of of her right right foot. fractures The proponent proponent of of a summary summary judgment motion must showing of of judgment motion must make make a prima prima facie showing entitlement to judgment matter of eliminate any material entitlement judgment as a matter of law, tendering tendering sufficient sufficient evidence evidence to eliminate material Animals v Associated Associated Fur Mfrs., 46 NY2d NY2d 1065, 416 issues issues of of fact from from the case case (Friends (Friends of 0/ Animals Fur M/rs., 1065,416 NYS2d 790 [1979]; Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395,165 NYS2d [1979]; Sillman Twentieth Century-Fox Film Corporation, NY2d 395, 165 NYS2d [1957]). The The movant movant has the initial of proving summary NYS2d 498 [1957]). initial burden burden of proving entitlement entitlement to summary judgment (Winegrad v N. Y. U. Medical Center, 64 NY2d 851,487 NYS2d 316 [1985]). Failure to Y. U. Medical Center, NY2d 851, 487 NYS2d [1985]). Failure judgment (Winegrad make such a showing showing requires requires denial denial of of the motion, of the sufficiency sufficiency of of the opposing opposing make such motion, regardless regardless of papers (Winegrad v N. Y. Y.U. Center, supra). Once such such proof been offered, offered, the U. Medical Medical Center, supra). Once proof has been the burden burden papers (Winegrad then shifts shifts to the opposing opposing party, order to defeat defeat the motion summary judgment, must then party, who, who, in order motion for summary judgment, must and must must "show trial of issue proffer evidence proffer evidence in admissible admissible form ... ...and "show facts sufficient sufficient to require require a trial of any issue Zuckerman v City of New York, NY2d 557, 557,427 NYS2d 595 [1980]). offact"(CPLR3212[b]; offact"(CPLR3212[b]; Zuckerman o/New York, 49 NY2d 427 NYS2d [1980]). The opposing proof in order opposing party party must must assemble, assemble, lay bare and reveal reveal his proof order to establish establish that that the matters set forth forth in his pleadings pleadings are real and capable capable of of being established (Castro (Castro v Liberty being established Liberty Bus Bus matters Co., 79 AD2d 1014,435 Co., AD2d 1014, 435 NYS2d NYS2d 340 [2d Dept Dept 1981]). 2 of 7 [*FILED: 3] SUFFOLK COUNTY CLERK 11/08/2019 03:42 PM NYSCEF DOC. NO. 77 INDEX NO. 619695/2016 RECEIVED NYSCEF: 11/08/2019 aI. Ung, et al. Sokol v Ung, Index 619695/2016 No. 619695/2016 Index No. No. 3 Page Page NO.3 medical malpractice elements of of proof proof in a medical malpractice action action are (1) a deviation deviation or requisite elements The requisite proximate cause departure from accepted and (2) evidence evidence that that such such departure departure was was a proximate cause of of practice, and accepted practice, departure NYS2d AD2d 852,678 Home, 253 AD2d Nursing Home, Manor Nursing Brook Manor Sprain Brook injury or damage damage (Holton (Holton v Sprain 852, 678 NYS2d injury prima facie prove a prima NYS2d 420). 503 [2d Dept Dept 1998], 1998], app app denied denied 92 NY2d 420). To prove facie case case of of NY2d 818, 685 NYS2d 503[2d factor was a substantial negligence was medical establish that defendant's negligence substantial factor that defendant's must establish plaintiff must malpractice, a plaintiff medical malpractice, NY2d 308,434 alleged injury injury (see Derdiarian Contracting Corp., Corp., 51 NY2d 308, 434 Felix Contracting Derdiarian v Felix producing the alleged in producing Dept 1996]). NYS2d 700 [2d Dept AD2d 674,638 NYS2d [1980]; Prete 674,638 NYS2d 1996]). Rajla-Demetrious, 221 AD2d Prete v Rajla-Demetrious, NYS2d 166 [1980]; medical expert medical laymen, expert of laymen, knowledge of Except experience and knowledge ordinary experience the ordinary within the matters within Except as to matters and care and medical care of medical accepted standards from accepted opinion standards of departure from deviation or departure prove a deviation necessary to prove opinion is necessary NY2d Fiore v Galang, that such such departure departure was a proximate proximate cause cause of plaintiff s injury injury (see Fiore Galang, 64 NY2d of the plaintiffs that Dept NYS2d 375 [2d Dept 517, 675 NYS2d McCauley, 252 AD2d Lyons v McCauley, 999,489 [1985]; Lyons AD2d 516, 516,517,675 NYS2d 47 [1985]; 489 NYS2d 999, New York, of New app denied denied 92 NY2d 814, 681 NYS2d York, 202 202 AD2d AD2d 465,465, 465, 465, Bloom v City of 475; Bloom NYS2d 475; NY2d 814,681 1998], app 1994]). Dept 1994]). NYS2d 45 [2d Dept 609 NYS2d medical rendering medical while rendering patients while their patients Healthcare duty of of reasonable reasonable care to their owe a duty providers owe Healthcare providers NY3d Dupree v Giugliano, malpractice (see Dupree treatment; Giugliano, 20 NY3d medical malpractice constitutes medical duty constitutes this duty of this breach of treatment; a breach [1989] 369 NYS2d 369 [1989] 673, 675, 543 NYS2d NY2d 673,675,543 921,958 [2012]; Scott Uljanov, 74 NY2d Scott v Uljanov, 314 [2012]; 312, 314 NYS2d 312, 921, 958 NYS2d recover 2015]). To recover Dept 2015]). 226,288 Tracy v Vassar Vassar Bros. 288 [2d Dept NYS3d 226, AD3d 713, 13 NYS3d Hosp., 130 AD3d Bros. Hosp., Tracy healthcare her or his that both damages for medical malpractice, a plaintiff plaintiff patient must prove prove both that her healthcare patient must medical malpractice, damages practice and that provider deviated or departed from good good and accepted accepted standards standards of of medical medical practice that such departed from provider deviated 535 721, NY2d 73 Friedman, Gross (see departure proximately caused the plaintiffs injuries Gross v Friedman, NY2d 721,535 injuries departure proximately caused the plaintiff's Dept 2016); NYS3d 689 24 NYS3d AD3d 12, NYS2d Cavagnuolo, 138 AD3d 12,24 689 [2d Dept 2016]; Bongiovanni v Cavagnuolo, 1988]; Bongiovanni NYS2d 586 [[1988]; facie prima a establish To ]). 2011 Dept Stukas v Streiter, 83 AD3d 18,918 NYS2d 176 [2d Dept 2011]). establish prima AD3d 18, 918 NYS2d Stukas Streiter, provider healthcare provider entitlement to summary summary judgment action, a defendant defendant healthcare malpractice action, medical malpractice judgment in a medical entitlement such any of absence the must expert affidavits, affidavits, absence of such competent expert records and competent medical records through medical prove, through must prove, result (see injured as a result not injured was not plaintiff was the plaintiff that the departure, that departure, was a departure, there was if there departure, or, if Inc., 115 AD3d Neck, Inc., Plaza of Bongiovanni Cavagnuolo, supra; supra; Mitchell Grace Plaza of Great Great Neck, AD3d 819, Mitchell v Grace Bongiovanni v Cavagnuolo, 2012]). NYS2d 105 [2d Dept 2014]; Faccio Faccio v Golub, Golub, 91 AD3d AD3d 817, 938 NYS2d Dept 2012]). Dept 2014]; NYS2d 361 [2d Dept 982 NYS2d set forth malpractice set The defendant defendant must must address address and and rebut rebut specific specific allegations allegations of of malpractice forth in the NYS2d 912 NYS2d AD3d 1043, Med. Ctr., 78 AD3d Hosp. Med. Flushing Hosp. plaintiffs of particulars Wall v Flushing 1043,912 particulars (see Wall plaintiffs bill of 2010); Dept [2d 326 NYS2d 906 NYS2d 326 548,906 Dept 2010]; Grant Grant v AD3d 548, Bilello, 76 AD3d La Vecchia v Bilello, 2010]; LaVecchia Dept 2010]; 77 [2d Dept Finklea, 2008]; Terranova Dept 2008]; Hudson 874,866 726 [2d Dept Terranova v Finklea, NYS2d 726 866 NYS2d AD3d 874, Hosp. Ctr., 55 AD3d Hudson Val. Hosp. 2007]). Dept 2007]). 45 AD3d 389 [2d Dept NYS2d 389 AD3d 572, 845 NYS2d patient to submit After showing, the burden shifts to the submit plaintiff patient the plaintiff burden shifts prima facie showing, this prima making this After making whether a deviation evidentiary facts or materials materials that triable issue issue as to whether deviation or departure departure raise a triable that raise evidentiary occurred and whether whether this this depaiiure departure was was a competent competent cause cause of plaintiffs injuries injuries (see Williams Williams v of plaintiff's occurred Torelli, 106 Makinen v Torelli, Dept 2013]; Bayley Seton Hosp., 917,977 2013]; Makinen NYS2d 395 [2d Dept 977 NYS2d AD3d 917, Hosp., 112 AD3d Bayley Seton need only plaintiff The supra). The plaintiff need Streiter, supra). AD3d 782,965 2013]; Stukas only Stukas v Streiter, Dept 2013]; NYS2d 529 [2d Dept 965 NYS2d AD3d 782, burden (see facie burden prima facie the prima met the raise issue as to the elements elements on on which defendant met which the defendant triable issue raise a triable 2014]; Dept 2014]; Barrocales York Methodist 648,996 NYS2d NYS2d 155 [2d Dept AD3d 648,996 Hosp., 122 AD3d Methodist Hosp., New York Barrocales v New Stukas v 2012]; Stukas Dept 2012]; NYS2d 148 [2d Dept Gillespie v New York Hosp. Queens, 96 AD3d 901, 947 NYS2d AD3d 901,947 Hosp. Queens, New York Gillespie unsupported conclusory and unsupported merely conclusory Streiter, "General allegations malpractice, merely medical malpractice, of medical allegations of supra). "General Streiter, supra). 3 of 7 [*FILED: 4] SUFFOLK COUNTY CLERK 11/08/2019 03:42 PM NYSCEF DOC. NO. 77 INDEX NO. 619695/2016 RECEIVED NYSCEF: 11/08/2019 Sokol v Ung, et at. al. Index No. 619695/2016 Index 619695/2016 Page NO.4 No. 4 Page by competent competent evidence medical malpractice, malpractice, are evidence tending tending to establish establish the essential essential elements elements of of medical insufficient to defeat physici_an's summary judgment motion" motion" (Alvarez v Prospect Hosp., insufficient defeat defendant defendant physici.an's summary judgment Brinkley v Nassau Nassau Health Care Corp., AD3d 1287, 993 NYS2d NYS2d 73 [2d supra, at 325; see Brinkley Corp., 130 AD3d 1287,993 Rosenthal, 224 AD2d 392,637 NYS2d NYS2d 772 [2d Dept Dept 1996]). Dept 2014]; Dept 2014]; Kramer v Rosenthal, AD2d 392,637 1996]). Summary Summary judgment is inappropriate in a medical medical malpractice action where where the parties present conflicting judgment inappropriate in malpractice action parties present conflicting opinions AD3d 590, 15 NYS3d NYS3d 208 [2d Dept Dept 2015]; 2015]; opinions by medical medical experts experts (see (see Leto v Feld, 131 131 AD3d Gressman v Stephen-Johnson, Stephen-Johnson, 122 AD3d AD3d 904, 998 NYS2d NYS2d 104 [2d Dept Dept 2014]; 2014]; Moray v City of of Yonkers, 95 AD3d AD3d 968, 944 NYS2d NYS2d 210 [2d Dept Dept 2012]). 2012]). For medical medical malpractice generally recognized recognized that that liability liability for medical medical For malpractice claims, claims, "it is generally physician-patient relationship" relationship" (Megally, 253 253 malpractice malpractice may not be i1:1posed imposed in the absence absence of of a physician-patient N.Y.S.2d 649 [2d Dept Dept 1998]); v. Southside Southside Hospital, 281 AD2d AD2d 474, 474, AD2d AD2d 35, 40,679 40,679 N.Y.S:2d 1998]); White v. 721 N.Y.S.2d 2001]; Zimmerly (JoodSamaritan 721 N.Y.S.2d 678 [2d Dept Dept 2001]; Zimmerly v. v. Good Samaritan Hospital, 261 AD2d AD2d 614,690 614,690 N.Y.S.2d 718 [2dDept N.Y.S.2d [2d Dept 1999]). 1999]). NY CLS Educ Educ §S 6542 NY 6542 states states 1. Notwithstanding any other provision of of law, a physician physician assistant may 1. Notwithstanding other provision assistant may physician perform medical medical services, only when when under under the supervision perform services, but only supervision of of a physician only when assigned to him and only when such acts and duties duties as are assigned him or her her are within within practice of physician. the scope scope of of practice of such supervising supervising physician. Supervision shall shall be continuous continuous but 2. Supervision but shall not be construed construed as necessarily necessarily requiring of the supervising supervising physician requiring the the physical physical presence presence of physician at the time time and place such services services are performed. place where where such performed. NYCRR §S 94.2 94.2 states 10 NYCRR states (f) A physician physician supervising physician assistant supervising or employing employing a licensed licensed physician assistant or registered specialist assistant shall remain registered specialist assistant shall remain medically medically responsible responsible for the the medical services performed by the licensed physician assistant or registered medical services perfonned licensed physician assistant registered specialist assistant assistant whom employs. specialist whom such physician physician supervises supervises or employs. In Latiffv Wyckoff Wyckoff Hgts. Hosp., 144 AD2d 650, 651 [2d Dept 1988], the Court Court held InLatiffv AD2d 650,651 Dept 1988], held Where as here here the the appellant appellant physician physician has made made a prima prima facie facie showing showing that that Where not treat treat or examine examine the the infant infant plaintiff, plaintiff, the plaintiffs plaintiffs must must come· come he did not forward with with evidentiary evidentiary facts to rebut rebut the the physician's physician's showing showing that that he or she forward was not not negligent negligent (see,Alvarez (see, Alvarez v Prospect Hosp., 68 NY2d 320,324-325). was NY2d 320, 324-325). The fact fact that that the the appellant's appellant's name name appeared appeared twice twice on the the infant infant plaintiffs plaintiffs The hospital records records is not not sufficient sufficient to defeat defeat his prima prima facie facie showing showing that that he hospital was not not negligent, negligent, absent absent some some evidentiary evidentiary facts facts that that he did did in fact fact treat treat her her was (see, Buonagurio AD2d 830). The The mother's mother's allegati_on allegation that that she (see, Buonagurio v Drago, 65 AD2d 4 of 7 [*FILED: 5] SUFFOLK COUNTY CLERK 11/08/2019 03:42 PM NYSCEF DOC. NO. 77 INDEX NO. 619695/2016 RECEIVED NYSCEF: 11/08/2019 Sokol v Ung, Dng, et al. Sokol Index No. 619695/2016 No. 619695/2016 Index Page No. 5 Page NO.5 "believed" the appellant appellant may may have have discussed discussed her her daughter's daughter's case case with with the "believed" a create to examining physician physician on one occasion occasion is not not sufficient sufficient create triable triable issue issue examining Hosp., supra). Prospect Hosp., of fact fact (see, (see, Alvarez supra). Alvarez v Prospect of Defendant Ung Dng has has submitted submitted the affirmation affirmation of of James James Ryan, Ryan, M.D., M.D., who who affirms affirms that that he is Defendant since Medicine Internal in licensed to practice medicine in New York State, board certified Internal Medicine since certified board is and State, licensed practice medicine New York Emergency Medicine Medicine since since 1988. He set forth forth his education education and and training, training, and and indicated indicated 1985 and Emergency within a opinions his forth set has that he reviewed pertinent medical records depositions. Ryan has set forth his opinions within Ryan depositions. and records that reviewed pertinent medical physicianhave an established not have reasonable degree of of medical and states states that "did not established physicianUng "did that Dng certainty, and medical certainty, reasonable degree connection in care of standards accepted from patient relationship with plaintiff', "did not deviate from accepted standards of care connection deviate not "did patient relationship with plaintiff'', with the care rendered rendered to plaintiff plaintiff when when she presented" BMH on on May May 12, 2016, 2016, "did "did not not even even presented" to BMH with omissions or acts any for liable held possible participate in plaintiff s care that day and could not possible be held liable acts omissions not could and day that care participate plaintiff's that possibly argued not "be that it can relative care that further states states that can not "be possibly argued that Ryan further rendered." Ryan was rendered." that was relative to the care injuries." alleged plaintiff's of anything not was proximate cause of plaintiffs alleged injuries." cause proximate the was do not did or did he anything Defendant Levy Levy has submitted the the affirmation affirmation of of Joshua Joshua Stillman, Stillman, M.D. M.D. who who affirms affirms that that he has submitted Defendant both Emergency board certified licensed to practice State, and and is board certified in both Emergency York State, New York medicine in New practice medicine is licensed that he indicated and training, and Medicine Internal Medicine. He forth his education training, and indicated that education forth set Medicine. Internal and Me,dicine reviewed pertinent pertinent medical medical records records and and depositions. depositions. Stillman Stillman has set forth forth his his opinions opinions within within a reviewed reasonable degree degree of of medical medical certainty, certainty, and states states that that the the care care and and treatment treatment rendered rendered to the the reasonable presentation on treatment presentation room treatment plaintiff defendant Levy Levy "during "during her emergency room on May May 12, 2016 2016 her emergency plaintiff by defendant MS. SOKOL'S cause of the cause not the was not was good and and accepted accepted medical of MS. SOKOL'S practice and was medical practice within good times within was at all times injury." He indicates indicates that that "three "three films films are the standard standard initial initial screening screening series series for a foot foot injury injury to injury." look for broken broken bones" bones" and and that that the "three "three plain plain film x-ray x-ray views views of of the the foot foot were were determined determined to look show no fracture fracture by a licensed licensed radiologist." radiologist." Stillman Stillman further further opines opines that that "PA "P A LEVY LEVY had had the the show her made to her the complaints appropriate training emergency care, care, properly appreciated all the complaints made properly appreciated provide emergency training to provide appropriate provided and patient, took took an appropriate appropriate history, history, performed performed appropriate appropriate examination examination and provided by the patient, appropriate proper proper care, care, workup, workup, treatment treatment and discharge discharge instructions" instructions" and and "appropriately "appropriately relied relied on appropriate x-ray report report prepared SLATTERY". by DR. SLATTERY". prepared by the x-ray D.O., Ung, D.O., Lyncan Dng, It is determined determined that, Stillman's opinions, opinions, Lyncan Ryan's and Dr. Stillman's upon Dr. Ryan's based upon that, based judgment Kimberly Levy, Levy, RPA-C A-C have have established established prima prima facie entitlement entitlement to summary summary judgment M.D., and Kimberly dismissing the complaint. complaint. dismissing judgment by facie showing showing of of entitlement entitlement to an order order granting granting summary summary judgment prima facie rebut a prima To rebut submitting by fact of defendant, the plaintiff plaintiff must must demonstrate demonstrate the existence existence of of a triable triable issue issue of submitting an the defendant, expert's affidavit affidavit of of merit merit attesting attesting to a deviation deviation or departure departure from from accepted accepted practice, practice, and expert's containing an opinion opinion that that the the defendant's defendant's acts or omissions omissions were were a competent-producing competent-producing cause cause of of containing AD3d 759, Div., 7 AD3d Highway Div., the injuries injuries of of the Ctr-Kings Highway Med. Ctr-Kings Israel Med. Beth Israel Lifshitz v Beth plaintiff (see Lifshitz the plaintiff 282,660 AD2d 282,660 242 AD2d Assocs., 242 Glen Cove Cove OB/GYN OB/GYN Assocs., Domaradzki v Glen 2004]; Domaradzki Dept 2004]; NYS2d 907 [2d Dept 776 NYS2d NYS2d 739 [2d Dept Dept 1997]). 1997]). "Summary "Summary judgment not appropriate appropriate in a medical medical malpractice malpractice judgment is not NYS2d issues credibility Such action where the parties adduce conflicting medical expert opinions. Such credibility issues can can opinions. expert medical action where the parties adduce conflicting NYS2d 159 [2d Dept (Bengston v Wang, Wang, 41 AD3d 625,839 NYS2d Dept 2007]). 2007]). AD3d 625,839 jury" (Bengston resolved by a jury" only be resolved 5 of 7 [*FILED: 6] SUFFOLK COUNTY CLERK 11/08/2019 03:42 PM NYSCEF DOC. NO. 77 INDEX NO. 619695/2016 RECEIVED NYSCEF: 11/08/2019 Sokol Sokol v Ung, Dng, et al. Index No. 619695/2016 Index No. 619695/2016 Page No. 6 Page NO.6 In opposition opposition to defendant defendant Ung's Dng's motion, motion, the plaintiff plaintiff submits submits an affirmation affirmation of of her attorney attorney and an expert expert affirmation, affirmation, with with the affirmant's affirmant's name name and signature signature redacted. redacted. The The expert expert states states that that New York board certified physician licensed licensed to practice practice medicine medicine in New York State, State, and and is board certified in Internal Internal he is a physician Medicine. Medicine. He set forth forth his education education and and training training and indicates indicates that that he reviewed reviewed a copy copy of of the medical records records from from BMH BMH and and GSH, GSH, as well well as the affirmation affirmation of of James James Ryan, Ryan, M.D. M.D. and and the medical deposition deposition transcript transcript of of defendant defendant Ung. Dng. He opined opined within within a reasonable reasonable degree degree of of medical medical certainty certainty that that defendant defendant Lyncan Lyncan Ung, Dng, D.O., D.O., M.D., M.D., deviated deviated from accepted accepted standard standard of of medical medical care care "by "by not personally physically physically examining personally examining Kathleen Kathleen Sokol Sokol even even after after reviewing reviewing and and cosigning cosigning medical medical records physical exam records containing containing complaints, complaints, observations observations and physical exam findings findings obviously obviously suspicious suspicious for fracture, fracture, in relying relying on simple simple X-rays X-rays to rule out out fracture fracture in the the setting setting of of acute acute swelling swelling and and in failing failing to order order more more advanced advanced radiographic radiographic studies studies such such as a CT CT scan scan and/or and/or otherwise otherwise failing failing to aggressively an accurately accurately rule rule out out right right foot fractures." fractures." He further further opines opines that that "these "these deviations deviations aggressively proximate cause standard of of care care were were the the proximate cause of of Ms. Sokol's Sokol's multiple multiple non-displaced, non-displaced, from the standard displaced displaced and avulsed avulsed fractures fractures being being missed, missed, misdiagnosed, misdiagnosed, undiagnosed undiagnosed and improperly improperly treated." treated." He states states that that "One "One last last departure departure by the defendants, defendants, OK'd OK'd and and cosigned cosigned by defendant defendant Ung, Dng, D.O., D.O., M.D., M.D., was was rather rather than than discharge discharge her her to Orthopedic Orthopedic or at least least Podiatric Podiatric follow-up, follow-up, Ms. Sokol Sokol was simply simply referred referred to her her 'Regular 'Regular Doctor' Doctor' furthering furthering the risk risk of of missed missed foot foot fractures." fractures." He opines opines to a reasonable reasonable degree degree of of medical medical certainty certainty that that plaintiffs plaintiff s "history "history of of complaints, complaints, clinical clinical presentation presentation and physical physical exam exam findings findings at [BMH] [BMH] emergency emergency department department were were more more than than sufficiently sufficiently suspicious suspicious for fracture(s) fracture(s) and warranted warranted either either defendant defendant Levy, RPA-C RPA-C calling calling defendant defendant Ung Dng D.O., D.O., M.D. to do a physical physical exam exam personally personally and order order appropriate appropriate radiological radiological studies studies and/or and/or warranted warranted defendant defendant Ung Dng D.O., D.O., M.D. M.D. himself, himself, upon upon reading reading all this this documentation documentation in order order to cosign, cosign, intervening physical exam intervening with with his own own physical exam and and ordering ordering an appropriate appropriate radiological radiological workup". workup". It is his further further opinion opinion that that "the "the failure failure to do so directly directly resulted resulted in the the misdiagnosis misdiagnosis of of 'contusion' 'contusion' and and missed diagnosis painful and missed diagnosis of of several several painful and incapacitating" incapacitating" fractures fractures "that "that were were not not appropriately appropriately diagnosed diagnosed nor nor treated treated for weeks." weeks." In opposition plaintiff submits opposition to defendant defendant Levy's Levy's motion, motion, the the plaintiff submits an affirmation affirmation of of her her attorney attorney and an expert expert affirmation affirmation of of Bruce Bruce Charash, Charash, M.D M.D .. Charash Charash states states that that he is a physician physician licensed practice medicine New York licensed to practice medicine in New York State, State, and is board board certified certified in Internal Internal Medicine. Medicine. He set forth his education education and and training training and and indicates indicates that that he reviewed reviewed a copy copy of of the the medical medical records records from BMH BMH and GSH, GSH, as well well as the the affirmation affirmation of of James James Ryan, Ryan, M.D. M.D. and and the the deposition deposition transcript transcript of of defendant defendant Ung. Dng. The The Court Court notes notes that that while while defendant defendant Levy's Levy's notice notice of of motion motion is dated dated August August 16, 2019, the the physician's affirmation in opposition opposition is dated dated July 12, 12,2019 appears to be the same same 2019, physician's affirmation 2019 and appears affirmation affirmation submitted submitted in opposition opposition to defendant defendant Ung's Dng's motion. motion. Charash Charash states states that that "I submit submit the instant YNCAN UNG, instant Affirmation Affirmation in support support of of KATHLEEN KATHLEEN SOKOL's SOKOL's claims claims against against L LYNCAN UNG, D.O., D.O., M.D." Charash Charash opined opined within within a reasonable reasonable degree degree of of medical medical certainty certainty that that plaintiffs "history of of M.D." plaintiffs "history complaints, complaints, clinical clinical presentation presentation and physical physical exam exam findings findings at [BMH] [BMH] emergency emergency department department were were more than than sufficiently sufficiently suspicious suspicious for fracture(s) fracture(s) and warranted warranted either either defendant defendant Levy, Levy, RPA-C RP A-C more calling calling defendant defendant Ung Dng D.O., D.O., M.D. M.D. to do a physical physical exam exam personally personally and and order order appropriate appropriate radiological studies studies and/or and/or warranted warranted defendant defendant Ung Dng D.O., D.O., M.D. M.D. himself, himself, upon upon reading reading all this this radiological documentation physical exam documentation in order order to cosign, cosign, intervening intervening with with his own own physical exam and and ordering ordering an 6 of 7 [*FILED: 7] SUFFOLK COUNTY CLERK 11/08/2019 03:42 PM NYSCEF DOC. NO. 77 INDEX NO. 619695/2016 RECEIVED NYSCEF: 11/08/2019 Sokol Ung, et al. Sokol v Dng, etal. Index No. No. 619695/2016 Index 619695/2016 Page NO.7 No. 7 Page appropriate radiological workup". further opinion opinion that that "the failure to do so directly resulted appropriate radiological workup". It is his further "the failure directly resulted misdiagnosis of missed diagnosis painful and incapacitating" incapacitating" in the misdiagnosis of 'contusion' 'contusion' and missed diagnosis of of several several painful fractures were not nor treated treated for weeks." weeks." He states that "the fractures "that "that were not appropriately appropriately diagnosed diagnosed nor states that "the care rendered by defendant RPA-C good and accepted practice on that that rendered defendant Levy, RP A-C departed departed from good accepted standards standards of of practice she (1) did not appreciate the'suspicious if if not obvious presentation of multiple fractures fractures in Ms. appreciate the'suspicious obvious presentation of multiple Sokol's foot and (2) failed failed to seek appropriate help help from her attending physician defendant Sokol's right right foot seek appropriate attending physician defendant Ung, that defendant from the applicable Dng, D.O., D.O., M.D.". M.D.". Finally, Finally, he opines opines that defendant Levy "deviated "deviated from applicable good good and accepted medical and hospital hospital care in the care and treatment treatment of of Kathleen Kathleen Sokol" accepted standards standards of of medical Sokol" and proximate cause cause of misdiagnosis, delayed fracture that those those deviations deviations "were "were the proximate of Ms. Sokol' Sokol'ss misdiagnosis, delayed fracture diagnosis fracture treatment treatment as well as proximate proximate cause pain and di~gnosis and delayed delayed fracture cause of of Ms. Sokol' Sokol'ss pain disability resulting from her multiple foot fractures." disability resulting her multiple fractures." "General that are unsupported unsupported by competent "General and conclusory conclusory allegations allegations that competent evidence evidence are insufficient judgment'' (Hernandez Nwaishienyi, 148 AD3d AD3d 684, insufficient to defeat defeat a motion motion for summary summary judgment" (Hernandez v Nwaishienyi, 686, 48 NYS3d NYS3d 467 [2d Dept Dept 2017], 2017], citing Alvarez v Prospect Prospect Hosp., Hosp., supra supra at 324-325. 324-325. Here Here the 686,48 citing Alvarez plaintiffss expert merely given how the moving moving plaintiff expert has merely given general general and conclusory conclusory statement statement as to how defendants committed committed medical Charash failed of the arguments defendants medical malpractice. malpractice. Charash failed to dispute dispute any of arguments made made by defendant plaintiff failed failed to indicate what injuries were defendant Levy's Levy's expert, expert, Dr. Stillman. Stillman. In addition, addition, the plaintiff indicate what injuries were caused as a result result of of the alleged alleged medical ofDng caused medical malpractice malpractice of Ung or Levy. Levy. Based Based upon upon the foregoing, foregoing, it determined that plaintiff has failed failed to raise factual issues summary judgment is determined that plaintiff raise factual issues to preclude preclude summary judgment from being granted granted to the defendants. being the defendants. summary judgment granted and the complaint is dismissed dismissed as to Lyncan The motions motions for summary judgment are granted the complaint Lyncan Dng, M.D., and Kimberly A-C. Ung, D.O., D.O., M.D., Kimberly Levy, Levy, RP RPA-C. constitutes the Decision Decision and Order Order of Court The foregoing foregoing constitutes of this this Court Dated: 6,2019 Dated: November November 6, 2019 A. SANTORELLI J.S.C. '- 7 of 7

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