Perez v Abulencia

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[*1] Perez v Abulencia 2019 NY Slip Op 50775(U) Decided on May 17, 2019 Supreme Court, Suffolk County Berland, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 17, 2019
Supreme Court, Suffolk County

Jose Perez and RAMONITA PEREZ, Plaintiffs,


Armand Abulencia, M.D., and EMPIRE STAT GROUP, LLC d/b/a EMPIRE STAT, Defendants.



Attorney for Plaintiff

8 West 38th Street, Suite 1002

New York, New York 10018


Attorney for Defendant Abulencia

77 Water Street, Suite 702

New York, New York 10005
Sanford Neil Berland, J.

Upon the following papers e-filed and read on this motion for summary judgment: Notice of Motion and supporting papers by defendant Armand Abulencia, M.D., dated June 21, 2018; Answering Affidavits and supporting papers by plaintiff, dated September 12, 2018; and Replying Affidavits and supporting papers by defendant, dated September 24, 2018, it is,

ORDERED that the motion of defendant Dr. Armand Abulencia for summary judgment dismissing the complaint against him is denied.

Plaintiff Jose Perez commenced this action against defendants to recover damages for medical malpractice. Plaintiff's wife, Ramonita Perez, brought a derivative claim for loss of services and companionship. The complaint, as amplified by the verified bill of particulars, alleges that Dr. Abulencia committed medical malpractice by negligently performing an independent medical examination that caused physical harm, among other things, to plaintiff. By stipulation dated July 11, 2017, the action was discontinued with prejudice as against defendant Empire Stat Group, LLC. Plaintiff Ramonita Perez discontinued her derivative cause of action by stipulation dated February 16, 2017.

Dr. Abulencia now moves for summary judgment dismissing the complaint against him on the grounds that he did not have a physician-patient relationship with plaintiff and therefore did not owe him a physician's duty of care, that he did not, in any event, depart from accepted medical practice and that his conduct was not a proximate cause of plaintiff's injuries. In support of the motion, Dr. Abulencia submits copies of the pleadings, the bill of particulars, the transcripts of the deposition testimony of the parties and of non-party Leonard Zack, the affidavit of Dr. Charles Jobin and plaintiff's medical records.

Plaintiff testified that he presented to Dr. Abulencia on February 12, 2014 for a physical examination at the direction of GEICO. He testified that he was injured in an automobile accident on January 29, 2013, and that he was receiving no-fault benefits. He testified that after the accident, he underwent surgery on his left shoulder, and that he was treated by physical therapists. Plaintiff testified that he was injured in work related accidents, and that he suffered a knee injury and underwent a knee replacement prior to the motor vehicle accident that led to the subject examination. He testified that his son drove him to the examination and that his attorney, Leonard Zack, met them at Dr. Abulencia's office and accompanied him into the examination room.

Plaintiff testified that Dr. Abulencia began the physical examination by examining his knee, and that Mr. Zack advised Dr. Abulencia that plaintiff's knee was not at issue and that he should not examine it. According to plaintiff, Dr. Abulencia did not abide by Zack's advice and directed plaintiff to pull his pant leg up. He testified that Dr. Abulencia applied strong pressure to his knee cap with both of his thumbs, causing pain so extreme that it made him cry. He further testified that when Dr. Abulencia examined his left shoulder, he held his arm and forcefully pushed it and bent it so hard that he heard a popping sound that produced excruciating pain, which caused him to fall to the floor and cry. He testified that he told Dr. Abulencia that the pain was too much and requested several times that he stop, but that Dr. Abulencia kept forcing the movement, so Mr. Zack told him that the examination was terminated. He testified that Mr. Zack assisted him to his vehicle, that he took a painkiller - either oxycodone or OxyContin - and called Dr. Schrank, the surgeon who had operated on his shoulder, and then went directly to Dr. Schrank's office. Plaintiff testified that Dr. Schrank removed plaintiff's outer shirt and T-shirt [*2]and observed the area to be swollen and inflamed. Dr. Schrank conducted an x-ray examination of plaintiff, gave him an injection, and immobilized his shoulder with a sling. Plaintiff testified that he presented to Dr. Schrank ten days later and received further injections and that Dr. Shrank told him that he suffered from a nerve condition and referred him to Dr. Timothy Groth.

Plaintiff testified that he subsequently underwent a procedure to treat his ulnar nerve, that the procedure was performed by Dr. Puopolo, and that he received physical therapy afterwards. He testified that Dr. Abulencia injured his shoulder during the February 2014 examination and that the progress that he had been making following the surgery to his left shoulder was halted by Dr. Abulencia's conduct. Plaintiff testified to his daily activities prior to the examination and afterwards, and he stated that his activities are limited as a result to the subject injury he claimed was caused by Dr. Abulencia.

Mr. Zack testified that he is an attorney and that he has known plaintiff for 30 years and has represented him in various matters. He testified that he accompanied plaintiff to Dr. Abulencia's office for the physical examination. He testified that Dr. Abulencia took plaintiff's medical history and that he performed the physical examination of plaintiff while plaintiff was seated in a chair. In relevant part, he testified that "Dr. Abulencia took the shoulder . . . the arm, and was forcing it into the shoulder, and Perez said, 'I can't do this, it hurts,' and he was screaming and he continued to the point where Mr. Perez was practically crying, he may have been crying, and at that point I said, 'We have just finished your IME, let's go.'"

Dr. Abulencia testified that he is a board certified orthopedic surgeon engaged in private practice and that he also works for Empire Stat performing independent medical examinations. He testified that he has worked for Empire Stat for over ten years and that he conducts 50 IMEs per month. He testified that he was directed to perform a physical examination on plaintiff's left shoulder, left knee and left elbow and that the IME was conducted in an office located in Syosset, New York. He testified that he typically receives a patient's medical records from Empire Stat on the date of the examination and that he creates his report with his findings immediately following the examination. He testified that he recalls the subject examination and that plaintiff and his attorney, Leonard Zack, presented to the office in the morning and were seated in a waiting room where a receptionist is present, and that he brought them both into the examination room to perform the IME.

Dr. Abulencia testified that it is his custom and practice to begin the examination from the top of the body to the lower extremities and that plaintiff was seated in a chair and fully dressed during the examination. He testified that the IME lasted approximately fifteen minutes, that he discussed plaintiff's medical history with him and that he learned that plaintiff had undergone arthroscopic surgery on his left shoulder in September 2013. He testified that he has performed 700 arthroscopic surgeries and that the procedure typically consists of making small incisions into the shoulder, inserting a device similar to a camera and removing a bone spur and an inflamed bursa sac. He testified that plaintiff told him that after the surgery, he tried physical therapy, but it did not help him, and that he recently received a steroid injection to the left shoulder. He testified further that plaintiff told him that his surgeon was considering a second surgery for the left shoulder.

Dr. Abulencia testified that his custom and practice is to inform the patient that he will be evaluating him or her to determine range of motion in the injured area, and that he would have [*3]told plaintiff that he would be touching his shoulder, and that he would have instructed him on how to raise or move his shoulder to assess motion. He was shown a copy of the report that he created for plaintiff's examination and testified that he palpated plaintiff's shoulder with his index finger and that he applied light pressure, which elicited pain, but plaintiff was able to move his arm and shoulder for the range of motion test. He testified as to the various movements that he has a patient perform. According to Dr. Abulencia, he did not manipulate or maneuver plaintiff's shoulder; rather, he directed plaintiff to perform the movements on his own. He testified that plaintiff experienced some pain and limitations of motion, which is common in postoperative patients.

Dr. Abulencia was asked several questions regarding plaintiff's behavior during the examination and whether he was crying, screaming or yelling at him or informing him that the pain was too severe and that he should stop. Dr. Abulencia answered each of those question in the negative with respect to his examination of plaintiff's upper extremities, including his left shoulder. Dr. Abulencia further testified, however, that after completing the examination of plaintiff's upper extremities, he proceeded to the examination of plaintiff's left knee, and that although plaintiff complied with his request to move the knee on his own, when Dr. Abulencia began to palpate left knee with his index finger, applying light pressure to the patella, plaintiff became aggressive, and that part of the examination could not be continued. Dr. Abulencia further testified that plaintiff was yelling and expressing his frustration with his injuries, and that Mr. Zack, in effect, tried to calm him down and to assure him that Dr. Abulencia was not hurting him. Dr. Abulencia was asked if he heard any "popping" sounds from plaintiff's shoulder area and if plaintiff told him that it popped, and he testified that he did not and that there was nothing else unusual about the May 15, 2019 examination.

It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067, 416 NYS2d 790 [1979]). The failure of the moving party to make a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The court's function is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility; therefore, in determining the motion for summary judgment, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2001]; O'Neill v Town of Fishkill, 134 AD2d 487, 521 NYS2d 272 [1987]).

The elements of a medical malpractice claim are a deviation or departure from accepted medical practice and evidence that such departure was the proximate cause of injury (see Wright v Morning Star Ambulette Servs., Inc., 2019 NY Slip Op 02381 [2d Dept 2019]; McAlwee v Westchester Health Assoc., PLLC,163 AD3d 549, 80 NYS3d 401 [2d Dept 2018]; Ortiz v Wyckoff Hgts. Med. Ctr. 149 AD3d 1093, 53 NYS3d 189 [2d Dept 2017]; Paone v Lattarulo, 123 AD3d 683, 683, 997 NYS2d 694 [2d Dept 2014]). A medical malpractice claim is based [*4]upon a breach of a duty owed by a physician to his or her patient (see Lee v City of New York, 162 AD2d 34, 560 NYS2d 700 [2d Dept 1990]). Absent a physician-patient relationship, a medical malpractice claim will not lie (see Melio v John T. Mather Mem. Hosp.,165 AD3d 645, 84 NYS3d 549 [2d Dept 2018[; Fox v Marshall, 88 AD3d 131, 928 NYS2d 317 [2d Dept 2011]; Savarese v Allstate Ins. Co., 287 AD2d 492, 731 NYS2d 226 [2d Dept 2001]).

An examination conducted by a physician at the request of a third-party employer or insurer does not in and of itself create a full physician-patient relationship unless the physician either "affirmatively treated the patient or affirmatively advised the patient as to a course of treatment" (Johnson v North Shore Univ. Hosp., 28 Misc 3d 127(A), 127A, 957 NYS2d 636, 636 [App Term, 2d Dept 2010]; Badolato v Rosenberg, 67 AD3d 937,890 NYS2d 85 [2d Dept 2009]; Heller v Peekskill Community Hosp., 198 AD2d 265, 603 NYS2d 548 [2d Dept 1993]). Nonetheless, the examining physician may be held liable in malpractice if he or she causes physical harm to the patient during the examination (Bazakos v Lewis, 12 NY3d 631, 635, 883 NYS2d 785 [2009]).

The Court of Appeals decision in Bazakos v Lewis, supra, is particularly apt here. In that case, the Court of Appeals held that an independent medical examination conducted by a physician at the request of a counterparty creates a "limited physician-patient relationship." Although the relationship thus created does not impose medical malpractice liability upon the physician for his or her medical determinations and conclusions, the act of manipulating a body part of a person who presents for a physical examination constitutes "medical treatment by a licensed physician, and the negligent performance of that act is not ordinary negligence, but a prototypical act of medical malpractice" (id. at 634).

The facts presented here are functionally indistinguishable to those addressed by the Court of Appeals in Bazakos. The plaintiff in Bazakos had brought an action for injuries he had allegedly sustained in an automobile and, pursuant to CPLR 3121, had submitted to an independent medical examination at the request of the defendant in that action. He alleged that he was injured in the course of the independent medical examination when the examining physician negligently took his "'head in his hands and forcefully rotated it while simultaneously pulling'" (12 NY3d at 633 [2009]). The trial court granted the defendant's motion to dismiss Bazakos's claim against the examining physician as barred by the two-year-and-six-month statute of limitations of CPLR 214-a for medical malpractice claims, but the Appellate Division reversed, holding that there was no physician-patient relationship between Bazakos and the examining physician and that, therefore, the claim was governed by the three-year statute of limitations generally applicable to personal injury claims, CPLR 214. Citing the "package of legislation," including CPLR 214-a, passed by the Legislature "in 1975 in response 'to a crisis in the medical profession posed by the withdrawal and threatened withdrawal of insurance companies from the malpractice insurance market'" (12 NY3d at 634, quoting Bleiler v. Bodnar, 65 NY2d 65, 68[1985]), deeming it "unlikely . . . that the Legislature would have found less reason to make insurance available to doctors performing IMEs than to those practicing medicine in more traditional contexts, or that it intended any distinction between the two" (12 NY3d at 635), and holding that Bazakos's claim that the examining physician "breached his duty 'to perform the examination in a manner not to cause physical harm to the examinee' is a claim for medical malpractice . . . governed by the two-year-and-six-month statute of limitations" (id., 12 [*5]NY3d at 635), the Court of Appeals reversed and directed that the trial court's order dismissing the claim as bared by CPLR 214-a be reinstated.

In light of the reasoning and holding of the Court of Appeals in Bazakos, Dr. Abulencia's argument here that he did not owe plaintiff a duty of care and therefore cannot, as a matter of law, be liable in medical malpractice necessarily fails. Thus, to sustain his motion for summary judgment, Dr. Abulencia must make a prima facie showing that he did not deviate or depart from accepted medical practice in his treatment of plaintiff or that any departure was not a proximate cause of plaintiff's injuries (Wagner v Parker, 2019 NY Slip Op 03650[2d Dept 2019]; Lau v Wan, 93 AD3d 763, 940 NYS2d 662 [2d Dept 2012]; Castro v New York City Health & Hosps. Corp., 74 AD3d 1005, 903 NYS2d 152 [2d Dept 2002], see also Pagano v Cohen, 164 AD3d 51, 682 NYS3d 492 [2d Dept 2018]; Stukas v Streiter, 83 AD3d 18, 918 NYS2d 176 [2d Dept 2011]). In order to do so, he must proffer competent medical evidence, generally in the form of the affidavits of qualified medical experts, refuting at least one of the two essential elements of the plaintiff's medical malpractice claim (see generally Feinberg v Feit, 23 AD3d 517, 519 [2d Dept 2005]; Wagner v Parker, 2019 NY Slip Op 03650 [2d Dept 2019]; Lopes v Lenox Hill Hospital, 2019 NY Slip Op 03328 [2d Dept 2019]; Bianco v Sherwin, 165 AD3d 620, 85 NYS3d 173 [2d Dept 2018]; Gaspard v Aronoff, 153 AD3d 795, 61 NYS3d 240 [2d Dept 2017]).

In support of his motion, Dr. Abulencia has submitted the affirmation by Dr. Charles Jobin, a physician licensed in the State of New York and an orthopedic surgeon. In his affirmation, Dr. Jobin states that he is familiar with the standard of care for conducting IMEs, and he enumerates the documents he has reviewed in forming his opinion, including Dr. Abulencia's report of his IME of plaintiff, which he describes in some detail, and Dr. Abulencia's deposition testimony, which he states "predominantly corroborates the information contained within" Dr. Abulencia's IME report. Although Dr. Jobin acknowledges that at their depositions, both the plaintiff and Mr. Zack gave accounts of the IME that differ from Dr. Abulencia's, he characterizes the differences in the accounts as merely "discrepancies as to how the examination began and concluded," asserts that "it is undisputed that the moving defendant merely palpated portions of the plaintiff's body in an attempt to evaluate his claimed injuries," and opines that the examination performed by Dr. Abulencia "was appropriate at all relevant times and made in accordance with the standard of care" and "did not cause or contribute to any of the injuries as alleged by the plaintiff."

Dr. Jobin's affirmation, however, is insufficient to establish Dr. Abulencia's prima facie entitlement to summary judgment. It is well settled that opinion evidence must be based on evidence in the record or upon the expert's personal knowledge (Hambsch v New York City Transit Authority, 63 NY2d 723, 480 NYS2d 195 [1984]; Cassano v Hagstrom, 5 NY2d 643, 187 NYS2d 1 [1959]; Hyung Kee Lee v New York Hosp. Queens, 118 AD3d 750, 987 NYS2d 436 [2d Dept 2014]). An expert may not reach a conclusion by assuming material facts not supported by the evidence in drawing a conclusion (Nyon Sook Lee v Shields, 188 AD2d 637, 591 NYS2d 522 [2d Dept 1992], citing Interstate Cigar Co. v. Dynaire Corp., 176 AD2d 699, 574 NYS2d 789 [2d Dept 1991]). Likewise, "[c]onclusory medical affirmations or expert opinions that fail to address a plaintiff's essential factual allegations are insufficient to establish prima facie entitlement to summary judgment" (Weinstein v Lanoix, 40 Misc 3d 1236(A) [Sup [*6]Ct New York County2013], quoting Roques v Noble, 73 AD3d 204, 206 [1st Dept 2007]). Here, contrary to Dr. Jobin's assertion, it is not "undisputed" that Dr. Abulencia "merely palpated portions of the plaintiff's body in an attempt to evaluate his claimed injuries." Because Dr. Jobin has no personal knowledge of the facts upon which he bases his opinion, and in rendering that opinion, he sidesteps the parties' material factual disagreements concerning how Dr. Abulencia conducted his examination of plaintiff - in particular, as to whether Dr. Abulencia forcefully and harmfully manipulated and palpated plaintiff's left arm and shoulder, and did so repeatedly despite plaintiff's protestations that those manipulations and palpations were causing him extreme and excruciating pain - his opinion cannot be relied upon by Dr. Abulencia to establish a prima facie case for summary judgment in his favor (see Wagner v Parker, 2019 NY Slip Op 03650 [2d Dept 2019]; Bartolacci—Meir v Sassoon, 149 AD3d 567, 50 NYS3d 395 [1 Dept 2017]).

In sum, the parties' sharply differing deposition testimony creates, rather than eliminates, triable issues of fact. The conflicting testimony as to the manner in which the February 2014 IME was conducted and whether Dr. Abulencia breached his duty "to perform the examination in a manner not to cause physical harm to the examinee" (Bazakos v Lewis, supra,12 NY3d at 635), manifest material questions of fact that bear directly on whether Dr. Abulencia deviated from accepted medical practice in conducting the examination and whether the manner in which he conducted the examination caused or exacerbated the injuries alleged by plaintiff. Dr. Abulencia, therefore, has failed to establish, prima facie, an entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316], Pullman v Silverman, 28 NY3d 1060, 43 NYS3d 793 [2016]). Accordingly, his motion for summary judgment is denied.

This constitutes the decision and order of the court.

Dated: May 17, 2019



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