Sabia v Keyhani

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Sabia v Keyhani 2019 NY Slip Op 34663(U) November 3, 2019 Supreme Court, Westchester County Docket Number: Index No. 65934/2017 Judge: William J. Giacomo 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: WESTCHESTER COUNTY CLERK 11/04/2019 03:26 PM NYSCEF DOC. NO. 34 INDEX NO. 65934/2017 RECEIVED NYSCEF: 11/04/2019 commence the the statutory statutory time time To commence period for appeals as of of right right for appeals period [a)), you are advised advised (CPLR 5513 [al), serve a copy copy of of this this order, order, with with to serve notice of of entry, entry, upon upon all parties. parties. notice YORK SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME COUNTY OF WESTCHESTER WESTCHES TER COUNTY PRESENT: HON. HON. WilLIAM GIACOMO, J.S.C. J.S.C. WILLIAM J. GIACOMO, PRESENT: _______________ -----------------------x --------- --------- --------- --------- -----x ANDREA SABIA, ANDREA SABIA, Plaintiff, Plaintiff, Index No. 65934/2017 65934/2017 Index against- againstKAYVAN KEYHANI KEYHANI M.D. and KAYVAN KAYVAN KEYHANI KEYHANI M.D., KAYVAN P.C., P.C., Defendants. Defendants. DECISION & & ORDER ORDER DECISION X - - - - - - - ---- x - - - ----- - ------- - ----- - --- - - - -- - ---- ---- - - - - - - - - - - - --_____________ In an an action action to recover damages damages for personal personal injuries, injuries, etc., the defendants defendants move move to recover In for summary judgment, pursuant to CPLR CPlR 3212, dismissing dismissing the the complaint: complaint: judgment, pursuant for summary Papers Considered Considered Papers L. Effinger, 1. Notice Notice of of Motion/Affirm Motion/Affirmation of Montgomery Montgomery Effinger, ation of 1. A-K; Esq.lExhibits A-K; Esq./Exhibits xhibit A; 2. Affirmation of Charles Charles E. Luceno, luceno, Esq. in Opposition/E Opposition/Exhibit Affirmation of 2. Esq. Effinger, L. 3. Reply Affirmation Montgomery Effinger, Montgomery of 3. Reply Affirmation Factual and Procedural Procedural Background Background Factual Plaintiff commenced commenced this this action action against against Kayvan Kayvan Keyhani, Keyhani, M.D. and Kayvan Kayvan Plaintiff with Dr. Keyhani Keyhani M.D., M.D., P.C., P.C., for for medical medical malpractice. malpractice. Plaintiff Plaintiff began began treating treating with Keyhani on Keyhani July 2, 2, 2015, 2015, complaining complaining of of eye eye irritation, irritation, swelling swelling of the eyelashes eyelashes and upper upper lids July that her deposition that impairing peripheral peripheral vision, vision, and and itchiness. itchiness. Plaintiff Plaintiff testified testified at her her deposition her impairing plaintiff eyelashes were were irritating irritating her her eyes eyes and and affected affected her vision. vision. Dr. Keyhani Keyhani diagnosed diagnosed plaintiff eyelashes she underwent 2015, 10, November On with lash ptosis and floppy eyelid syndrome. November 2015, underwent syndrome. with lash ptosis and floppy eyelid thickness lid syndrome repair surgery for for bilateral bilateral upper upper lid floppy repair with with full thickness floppy eye syndrome surgery reconstructionn via edge edge resection. resection. reconstructio The complaint complaint alleges alleges that that the the defendant defendant failed diagnose the the plaintiff's plaintiff's condition, condition, failed to diagnose The operative the failed to to take take timely timely and and proper proper tests, tests, carelessly carelessly and negligently negligently performed performed operative failed call timely to failed treatment, and vertical incision, failure to render timely medical care treatment, failed timely care medical timely vertical incision, failure to render consultants, and and negligently negligently caused caused eyelid eyelid deformity. deformity. consultants, Defendants move move for summary judgment dismissing the the complaint complaint and submit submit an judgment dismissing for summary Defendants gist specializing affidavit of of Harvey Harvey S. S. Rosenblum, Rosenblum, M.D., an ophthalmolo ophthalmologist specializing in cataract cataract affidavit [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 11/04/2019 03:26 PM NYSCEF DOC. NO. 34 INDEX NO. 65934/2017 RECEIVED NYSCEF: 11/04/2019 5abia v. Keyhani, Keyhani, Index Index No. 65934/2017 65934/2017 Sabia v. correction, and microsurgery, intraocular intraocular lens lens implantation, implantation, glaucoma, glaucoma, laser laser vision vision correction, microsurgery, ophthalmic plastic plastic surgery. surgery. ophthalmic syndrome and diagnosis offloppy According Rosenblum, the the plaintiff's plaintiff's diagnosis of floppy eyelid eyelid syndrome According to Dr. Rosenblum, treatment conformed lash ptosis ptosis were correct, and the examination, examination, surgery, surgery, and treatment conformed with were correct, lash opined that good standards of of ophthalmological Rosenblum opined that the the ophthalmological care. Dr. Rosenblum accepted standards and accepted good and the and appropriate was night at initial treatment Shield the night was appropriate eye left the in Shield Fox a using plan initial treatment correct the correct was the excision was wedge excision bilateral upper upper lid floppy eyelid repair repair with thickness wedge with full thickness floppy eyelid bilateral no was there that procedure for plaintiff's condition. Moreover, Dr. Roser.blum opined that there opined Roser.blum procedure for plaintiff's condition. Moreover, consultant for evidence that any consultant for advice advice and that that because because contact any failed to contact defendant failed the defendant that the evidence were the treatment conformed conformed with with good good and accepted accepted practices, practices, additional additional consultations consultations were the treatment not necessary. necessary. Dr. Rosenblum Rosenblum referred referred to plaintiff's plaintiff's deposition deposition testimony testimony that that she she was was not Dr. could she that so procedure the procedure desired the concerned cosmetic outcome that could only desired outcome and only with the cosmetic concerned with see. Her Her complaints complaints relating relating to the aesthetic aesthetic quality quality of the the result, result, according according to Dr. see. The procedure Rosenblu, fail evince improper improper surgical technique or malpractice. malpractice. The procedure surgical technique fail to evince Rosenblu, surgery cosmetic not was this performed was to address her medical condition; not cosmetic surgery to condition; address her medical performed was was appearance following improve or alter alter plaintiff's plaintiff's appearance. plaintiff's appearance following surgery surgery was The plaintiff's appearance. The improve consistent with with good good and accepted accepted surgical surgical practices. practices. Dr. Rosenblum Rosenblum opines opines that that the consistent indicative not is submitted, photographs existence of minimal scarring, as reviewed photographs submitted, indicative the in reviewed scarring, existence of minimal from was no departure of any any breach breach of good good and accepted accepted standards standards of care. There There was departure from of accepted medical standards standards that proximately caused plaintiff's injuries. injuries. caused plaintiff's that proximately accepted medical the that the Rosenblum opines, opines, with with a reasonable reasonable degree degree of of medical medical certainty, certainty, that Dr. Rosenblum the patient's surgery was performed without errors or omissions. omissions. In response response to the patient's without errors was performed surgery was course surgical appropriate the symptoms and underlying floppy syndrome, appropriate surgical course was syndrome, eye floppy underlying symptoms standards. The followed applicable accepted The type type of of surgery surgery accepted standards. with all applicable conformity with followed in conformity performed was appropriate for addressing plaintiff's plaintiff's medical medical condition. condition. The The surgery surgery was was for addressing was appropriate performed subjective Plaintiff's conducted without complications and the repair was successful. Plaintiff's subjective successful. was repair the complications without conducted dissatisfaction with the results of the procedure do not evince evince improper improper medical medical care care or the procedure the results dissatisfaction and procedure the propriety the treatment. The plaintiff's follow-up visits confirmed the propriety of procedure treatment. The plaintiff's follow-up visits confirmed her eyelashes showed improvement. improvement. The discomfort discomfort and problems problems associated associated with with her eyelashes was was showed were successfully eliminated procedure and plaintiff plaintiff conceded conceded that that her eyelashes eyelashes were eliminated by the procedure successfully no longer longer in her her eyes. eyes. good _and opposition, plaintiff plaintiff argues that Dr. Kehani Kehani departed departed from from good and accepted accepted argues that In opposition, submit Plaintiffs medical practice and that such departures caused plaintiff's injuries. Plaintiffs submit a injuries. plaintiff's caused medical practice and that such departures redacted expert expert affirmation affirmation of of a board-certified board-certified plastic plastic surgeon. surgeon. Plaintiff's Plaintiff's expert expert "takes "takes redacted issue" with Dr. Rosenblum's Rosenblum's statements statements regarding regarding the plaintiff's appearance appearance and opines opines the plaintiff's issue" not does it issue, cosmetic a that while the plaintiff consult with the defendant for cosmetic does for defendant the with consult not did plaintiff that while the abrogate the surgeon's obligation obligation to achieve achieve an appropriate appropriate cosmetic cosmetic result. result. Plaintiff's Plaintiff's the surgeon's abrogate was a performed defendant expert opines that the choice of the surgical approach the defendant performed was the surgical approach choice expert opines that visible scarring. wedge resection with incision which likely to cause cause visible scarring. was likely which was vertical incision with a vertical wedge resection 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 11/04/2019 03:26 PM NYSCEF DOC. NO. 34 INDEX NO. 65934/2017 RECEIVED NYSCEF: 11/04/2019 Sabia Index No. 65934/2017 65934/2017 Keyhani, Index v. Keyhani, Sabia v. of care Plaintiff's expert standard of care for Dr. Rosenblum Rosenblum to was not the standard that itit was opines that expert opines Plaintiff's consulted for a suggest irrelevant because because plaintiff plaintiff consulted disfigurement is irrelevant cosmetic disfigurement the cosmetic that the suggest that medical issue. issue. According plaintiff's expert cosmetic result result must must be addressed addressed by expert the cosmetic to plaintiff's According to medical the surgeon prior to the procedure procedure to explain explain the risks, benefits, benefits, and alternatives. alternatives. On the to the surgeon prior the Keyhani did not provide that Dr. Keyhani basis of plaintiff's plaintiff's deposition testimony, her expert expert states states that provide deposition testimony, basis of concerns. plaintiff's to a procedure or an adequate response plaintiff's concerns. adequate response the procedure of the description of sufficient description a sufficient her what her asked what she when that Plaintiff's expert refers to plaintiff's deposition testimony that when she asked testimony deposition plaintiff's to Plaintiff's expert refers fine. would be about said it would eyes might look like after Dr. Keyhani Keyhani was not clear clear about was not surgery, Dr. after surgery, look like eyes might is as the Plaintiff the with Defendant Plaintiff's expert opines, "[i]f the discussion by the Defendant with the Plaintiff the Plaintiff's expert opines, "[i]f the discussion of medical with a reasonable Plaintiff testified in her deposition, it is my opinion reasonable degree degree of medical opinion with her deposition, to in testified to Plaintiff appropriate certainty Defendant Kayvan Kayvan Keyhani, Keyhani, M.D., MD., did not provide provide appropriate the Defendant that the certainty that of care". standard the from departed information to his patient and deviated departed from the standard of care". and information to his patient and deviated Discussion Discussion that the "In liability for medical malpractice, malpractice, a plaintiff plaintiff must must prove prove that for medical establish liability to establish order to "In order that of practice defendant deviated deviated or or departed departed from accepted community community standards standards of practice and that from accepted defendant Merriam, v the plaintiff's such departure departure was a proximate proximate cause plaintiff's injuries" injuries" (Leavy (Leavy Merriam, 133 cause of the was a such judgment in a medical for summary AD3d [2d Dep't Dep't 2015]). 2015]). A physician moving moving for summary judgment medical A physician 636, 637 [2d AD3d 636,637 from departure from was no departure there was either that malpractice action must establish, prima facie, that there facie, either establish, prima action must malpractice was departure alleged any alleged departure was not accepted medical practice, practice, or that that any of medical standards of community standards accepted community AD3d 623, 624 Aronov v Soukkary, a proximate cause of the plaintiff's injuries injuries (see (see Aronov Soukkary, 104 AD3d the plaintiff's cause of a proximate 20121). Once AD3d 933, 936 [2d Dep't Dep't 2013]; DiGeronimo v Fuchs, Fuchs, 101 AD3d 936 [2d Dep't Dep't 2012]). Once a 2013]; DiGeronimo [2d the plaintiff shifts to the defendant has made made such burden shifts plaintiff to "submit "submit showing, the burden a showing, such a defendant has defendant physician" the defendant showing by the evidentiary facts or materials materials to to rebut rebut the prima prima facie physician" facie showing facts or evidentiary [1986]). 324 [1986]). (Alvarez v Prospect NY2d 320, 324 Hosp., 68 NY2d Prospect Hasp., (Alvarez was not she was that he or she showing that "A cannot rebut rebut a physician's showing defendant physician's a defendant plaintiff cannot "A plaintiff affidavit expert's affidavit offering an expert's negligent and defeat judgment by offering summary judgment for summary motion for a motion defeat a negligent and nature in conclusory are which containing general allegations medical malpractice malpractice which conclusory nature and of medical allegations of containing general establish the elements unsupported by by competent tending to establish elements of of medical medical evidence tending competent evidence unsupported Alvarez also see malpractice" (Shectman (Shectman v Wilson, 68 AD3d Dept 2009]; 2009]; see also Alvarez v AD3d 848, 849 [2d Dept malpractice" Hosps. Corp., 47 Health & Hasps. Prospect 68 NY2d NY2d at 324-325; Shahid Shahid v New New York City City Health at 324-325; Hosp., 68 Prospect Hasp., AD 3d 800, 801 [2d Dept Dept 2008]). 2008]). AD3d judgment summary judgment of entitlement Here, Dr. Dr. Kehani Kehani made made a prima facie entitlement to summary showing of facie showing a prima Here, the accepted from the deviate from by demonstratin demonstratingg through accepted that he did not deviate opinion that expert opinion through expert by of was not a proximate departure was standards of medical practice practice or that any alleged proximate cause cause of alleged departure or that of medical standards Petraco, 155 Reustle v Petraea, plaintiff's injuries injuries (see Alvarez Prospect Hosp., Hasp., 68 NY2d NY2d 320; Reustle Alvarez v Prospect plaintiff's after the surgery that after AD3d [2d Dept Dept 2017]). 2017]). Moreover, Moreover, plaintiff plaintiff testified surgery her her ability ability to testified that 658 [2d AD3d 658 opposition, In eyes. her in see was restored because because the the eyelashes longer her eyes. opposition, were no longer eyelashes were was restored see that establish fails affidavit expert plaintiff failed to raise a triable issue fact. Plaintiff's expert affidavit fails to establish that Plaintiff's of issue triable a plaintiff failed to raise was departure was such departure that any such the defendant departed departed from accepted medical medical standards standards or that from accepted the defendant elements address failed also a proximate cause of plaintiff's injuries. Plaintiff's expert also failed to address elements expert Plaintiff's a proximate cause of plaintiff's injuries. set forth by defendants' expert regarding regarding causation Sukhraj v New New York City City Health Health causation (see Sukhraj defendants' expert forth by set 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 11/04/2019 03:26 PM NYSCEF DOC. NO. 34 INDEX NO. 65934/2017 RECEIVED NYSCEF: 11/04/2019 Sabia 5abia v. Keyhani, Keyhani, Index Index No. 65934/2017 65934/2017 Hasps. Corp., 106 AD 3d 809 [2d Dept Dept 2013]; 2013]; Dolan Dolan v Halpern, Halpern, 73 AD 3d 1117 [2d Dept Dept & Hosps. AD3d AD3d 2010]). 2010]). Defendant prima facie facie showing showing of entitlement Defendant also made made a prima entitlement to summary summary judgment judgment dismissing dismissing the lack of informed informed consent consent cause cause of action. action. Dr. Keyhani Keyhani demonstrated demonstrated that that he disclosed surgery to plaintiff. testified that that he told disclosed the inherent inherent risks of the surgery plaintiff. He testified told the patient there there would would be scarring scarring and there would be a notch notch where eyelid came patient there would where the eyelid came together. Dr. Rosenblum Rosenblum avers avers that that the disclosure disclosure was proper proper and neither neither the surgery together. surgery and treatment treatment performed performed by Dr. Keyhani, Keyhani, nor any any lack of informed informed consent, consent, proximately proximately caused any injuries to plaintiff (see Zapata v Buitriago, 107 AD3d 977 [2d Dept 2013]; caused any injuries plaintiff (see Zapata Buitriago, AD3d 977 Dept 2013]; Mondo Mondo v El/stein, Ellstein, 302 AD2d 437 [2d Dept Dept 2003]). Plaintiff, in opposition, opposition, failed AD2d 437 2003]). Plaintiff, failed to raise an fact (see Agnese v Cattani, AD2d 515 [2d Dept 2002]). 2002]). Plaintiff testified at issue issue of fact (see Agnese Cattani, 291 AD2d Plaintiff testified prior to surgery, surgery, Dr. Keyhani Keyhani informed informed her that going to cut her that he was was going her deposition deposition that that prior eyelids and take away some some of the skin to tighten over her take away tighten the lid so it wouldn't wouldn't droop droop over eyelids eyes. While plaintiff testified that she felt Keyhani should have given eyes. While plaintiff testified that felt that Dr. Keyhani should have given her a picture picture would look look like after record is devoid devoid of any any evidence evidence that that ·. of what what she would after the surgery, surgery, the record any lack of informed informed consent consent proximately proximately caused caused any injury injury (see Zapata any Zapata v Buitriago, Buitriago, 107 AD3d AD3d 977). Accordingly, Accordingly, it is ORDERED that defendant's motion motion for summary CPLR ORDERED that defendant's summary judgment, judgment, pursuant pursuant to CPLR 3212 is GRANTED GRANTED and the complaint complaint is dismissed. dismissed. Dated: Dated: White Plains, New New York York White Plains, November 3, 2019 2019 November W~,JSC ~S.C MASTER LIST LIST - WESTCHESTER/Sabia WESTCHESTER/Sabia v. Kehani Kehani H: ALPHABETICAL ALPHABETICAL MASTER 4 [* 4] 4 of 4

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