Binbing Xie v Yan Fang Chen

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Binbing Xie v Yan Fang Chen 2020 NY Slip Op 33085(U) September 18, 2020 Supreme Court, Kings County Docket Number: 6319/2016 Judge: Marsha L. Steinhardt Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 6319/2016 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/18/2020 At an IAS Term, Part 15 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 18th day of September 2020. P R E S E N T: HON. MARSHA L. STEINHARDT, Justice ---------------------------------------------X BINBING XIE, Plaintiffs, DECISION AND ORDER Index No. 6319/2016 -againstYAN FANG CHEN, PHYSICIAN, P.C., Defendants. --------------------------------------------X The following papers numbered 1 to 3 read herein: Papers Numbered Notice of Motion 1 Affirmation in Opposition 2 This is a motion brought on by Defendant for an Order granting summary judgment as to it. Plaintiff submits opposition. Upon the foregoing papers and after oral argument, Defendant’s motion is GRANTED and the above captioned matter is DISMISSED. This is an action sounding in medical malpractice. Plaintiff alleges that Defendant and, in particular, Nurse Wu failed to timely diagnose acute myeloid leukemia, which resulted in the necessity for additional cancer treatment. 1 of 4 [* 2] INDEX NO. 6319/2016 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/18/2020 Action was commenced on or about November 7, 2016 and issue was joined in March of the following year. An amended complaint, a Bill of Particulars, and an Amended Bill of Particulars followed. Plaintiff claims that, on May 9, 2014, Defendant, Yan Feng Chen, Physician, P.C., negligently utilized Nurse Wu, who misrepresented herself as a medical doctor in treating the Plaintiff, and who was unqualified to perform the duties of a medical doctor; failed to conduct blood pressure and pulse exams; failed to be aware of the dangerousness of her high pulse rate; failed to perform a complete blood test (CBC); negligently diagnosed her with a cold/flu, rather than acute myeloid leukemia (AML); and failed to conduct the proper tests to make a diagnosis of AML. Plaintiff also asserts a claim of vicarious liability against Nurse Wu and Dr. Yan Feng Chen (neither of whom are parties to this action), but not against defendant Yan Feng Chen, Physician, P.C. (Exhibit "E". 7). As a result of these allegations, Plaintiff claims that she suffered a miscarriage the following day, on May 10, 2014; did not receive the proper treatment for AML; failed to go into remission after the initial induction chemotherapy; required a high dose of re-induction chemotherapy and many strong consolidation chemotherapies; suffered unbearable pains, nausea, vomiting, starvation; had prolonged neutropenia and pancytopenia; suffered many life-threatening infections; was hospitalized very frequently; needed a bone marrow transplant after which she became infertile; and suffered from acute and chronic Graft Versus Host Disease, which required immunosuppressant medications for three years and caused fatigue, back pain, joint pain, stiffness, decreased range of motion, tightness in fingers, wrists, elbows, ankles, and knees. Plaintiff also claims that she is currently generally weak; has a compromised immune system; is at higher risk for injury, bleeding, and infection; suffers from hearing loss and ringing; compromised vision; brain nerve damage; neurological problems; headaches; dizziness; eye dryness; severe fatigue; and is unable to go to work. 2 of 4 [* 3] INDEX NO. 6319/2016 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/18/2020 In sum and substance, it is Plaintiff’s allegation that Defendant, and in particular, Nurse Wu, did not diagnose leukemia. That said illness was diagnosed five days later and that the delay in diagnoses caused the various damages outlined above. The Court notes that Plaintiff did not have an easy course but has been cancer free for six years. In support of its application, Defendant submits the affirmation of Mark Fialk, M.D., a physician board certified in internal medicine, medical oncology and hematology. It is the expert’s opinion that a five-day delay had no impact on Plaintiff’s treatment or the outcome of her illness. (Which, the Court notes, fortunately, is good.). The normal treatment for AML is clearly set forth by Dr. Fialk. The treatment rendered to Plaintiff at Bellevue Hospital is the standard treatment for the disease. That Plaintiff has been cancer free since 2015, and this fact, by itself, indicates that the diagnosis and treatment were not delayed. That Plaintiff received the appropriate chemotherapy treatment and was not deprived of treatment options. Defendant also submits the affidavit of Alexa Schneider, PhD, RN, FNP in support of the motion. Nurse Schneider clearly opines that the treatment rendered to Plaintiff by Nurse Wu was at all times within good and accepted standards of care. Furthermore, at all times relevant to this discussion, Nurse Wu was competent to render said treatment. The appropriate questions were asked and vital signs, all within normal limits, were taken. That based on Plaintiff’s presenting complaints, no further examination, testing, or medical referral was necessary. The appropriate medication was dispensed, and Plaintiff was told to return in one week. That Plaintiff’s symptoms were not consistent with ALM, a rare disorder, and that Nurse Wu at no time departed from the standard of care by not making said illness a part of her differential diagnosis. In opposition, Plaintiff submits an affirmation drafted by herself, and some exhibits. There are no medical affirmations attached. 3 of 4 [* 4] INDEX NO. 6319/2016 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/18/2020 “The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage” (Rebozo v. Wilen, 41 AD3d 457, 459 [2d Dept 2007]). “On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby” (id.). “In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury” (id; see also, Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). “General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment” (id.). Plaintiff’s own statements are self-serving and conclusory and totally without merit. Her affirmation lacks any medical basis, nor is Plaintiff competent to put forth medical facts or opinions. Her alleged injuries and damages are nothing more than the normal course of treatment for her illness. The treatment would have been identical to that which she received had it started a day or two earlier. The Court finds that the records presented by Defendant are correct. The explanation as to the discrepancy of dates (5/09/14 and 5/28/17) is explained to the Court’s satisfaction by Dr. Yan Feng Chen in his affirmation. For all the foregoing reasons defendant’s motion is granted in its entirety and the abovecaptioned action is DISMISSED with prejudice. This constitutes the opinion, decision and order of this Court. ENTER, _________________________________ HON. MARSHA L. STEINHARDT J.S.C. 4 of 4

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