Lawi v Complete Wellness Med., P.C.
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Lawi v Complete Wellness Med., P.C. 2020 NY Slip Op 33659(U) October 28, 2020 Supreme Court, New York County Docket Number: 805350/17 Judge: Joan A. Madden 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] NYSCEF DOC. NO. 91 RECEIVED COURT SUPREME COUNTY NEW OF STATE OF THE PART YORK: OF NEW NYSCEF: 10/29/2020 YORIC 11 .----------------X NICOLE LAWI, INDEX Plaintiff, NO. 805350/17 -against- WELLNESS COMPLETE DANIEL P.C. MEDICAL, and D.C., FENSTER, Defendants. ------------------------------------- JOAN A. J.: MADDEN, In this judgment.1 ---------X action Plaintiff for damages opposes chiropractic for motion the and cross-moves move defeñdaiits malpractice, partial for for summary judgiiicnt summary on liability.2 On September of Complete defendant v. Plaintiff's expert therefore deemed to prove ("Complete of plaintiffs lower a claim the respect chiropractic malpractice Fund 161 to the Devçlopment Surgery, AD3d judgment, 114 AD3d (l" Dept 280 Corp, 75 (1" 2006), Dept app AD3d 2013); dism lack of of the consent. informed information v. Sen, as to the lack next the and back, "Expert AD3d 438 of informed she had morning, disclosed 111 an electrical performed Wellness"), director clinical and to (1" the medical plaintiff." Dept 2013). claim. consent a It is be dismissed. objection, for a chiropractor Fenster, see K,atz op.inion no cross-motion sumrnary for (2010); will and defendants' Daniel insufficiency 908 offers abandoned to P.C. side 907, affirmation 2Contrary Medical, asserts 15 NY3d Pilnik, Dr. left the also is required testimony Orphan on complaiñt 'The defendant Wellness procedure stianulation 2016, 12, since the Court defendants' claim, (1" 691 See Dept 2018); 862 v. 902 motion plaintiff raises Liberty Kershaw Triborougly (2007). consider properly timely Jarma v. Filanning 9 NY3d can v. Avenue Hospital Bridge&TUnnel s untimely identical issues with Housing for Spocial Authority, 34 [* 2] NYSCEF DOC. on burn Dr. RECEIVED 91 NO. back her S. Cash, Bradley properly perform exposure to air the secure expert in the and that arching After taking and therapy saw an x-ray and Dr. electrical Fenster 3The used and therapy stimulation parties that agree are not expert Dr. the extent not addressed by the Court not will with reply the plaintiff address he complaints of from properly pads.4 The was pads clectrode which to failing reused, electrode skin, do suffers caused not stimulation, and that Dr. that The the electrical he Dr. that Fenster Cash's by name and her the expert and bill machine." chiropractor of an filing signature, the Since stimulatian of cured a "TENS electrical complaint the therapy, painful. stimulation stimulation. "electrical affirmation been that less applied Fenster testified spasms, them electrical is nerve on advised. muscle to make Dr. home had from performed therapy has Fenster pain pain. back stimulation returned muscles relax redacted defect with #82) back stimulation unit" with "TENS plaintiff allege TENS electrical to replace document and dispute machinc. defendant from lower electrical as Dr. pain, incorrectly stimulation 3101(d). When the to fatigue of particulars for performed back. to alleviate performed CPLR Fenster lower a patient when amended (e-filing by so as to of the plaintiff's care that gel of the quality 8, 2016, Dr. her back parties Fenster to plaintiff's 5To The agrees comply bill is muscle with affirmation annexed and deemed 4Plaintiff does to is designed an electrical therapy particulars that therapy back. adhesive and pads adequate contamination pads September plaintiff, to her ice testified complaint to plaintiff's on adjustments stimulation the electrode with pads the departures, Fenster examining applied the of standard chiropractor, skin.5 Dr. chiropractic to protect the expert of her opinions from to avoid between the departed electrode failed these gaps plaintiff's first 8, she September of creating burned Plaintiff unit" as a result he failed and skin, on Based Fenster to use failed out, to plaintiff's or degraded, reduced Dr. in that procedure, drying that procedure.3 the alleges plaintiff the pads opines of area 10/29/2020 NYSCEF: unredacted which is also papers. complaint and s expert, those the bills of particulars departures them. 2 are deemed allege other abandoned departures or withdrawn, that are and of [* 3] NYSCEF DOC. He RECEIVED 91 NO. testified 2 inches meacuring next directly stimü!2tion of the the testified lubrication the their between are pads with electrode and he stores On September she reported with he plaintiff, *Plaintiff two electrode areas her of 7Dr. recall therapy the the 12, pads them anached pads the "dirty" adhered he has he would clean pads by placing the not clean pad, patient's skin. he rarely places to the with "trouble the or "wiped or discard the pads; skin into the and his before pads until 15 times sterilized patient's them goes stimulation 10 to are duration the current to them; approximately not electrode are electrical and electrical an electrical unless skin, himself; or pads already he does testified Dr. After electrical Fenster would returned better." a little performed and plaintiff 2106, again pads the the one apart, the on feedback; that each 2 to 3 inches turned to plaintiff's through and patient's about he then crest; pads,6 electrode back, explained He lubrication "hairy" is iliac transmitting he re-uses the lower two they down" in the applying which machine has a to plastic. "maybe was 7 pads, the procedure," them sticking and if a patient "standard and pads; on directly he replaces but patients, by with of in response to the come disposable adhesiveness; accordance "top," gel) to her closer body placement of her 15 minutes anached pads (ultrasound sticking"; lose electrode side frequency patient's are the left other the chose the mechine the the approximately into machine from wires and was the and involved on 2 inches, spine machine the treatment by to her treatment from He plaintiff's that placed have only to Dr. Fenster taking a second x-ray stimulation therapy and electrode four four if plaintiff of the machine used pads. Dr. needed and notes indicate she the discussing results to adjustments chiropractic Fenster testified treatment in two he used different back. testified Fenster model, in April and 10/29/2020 NYSCEF: no that longer the had "brand" the as he stopped machiñê, 2017. 3 a mf O1 was "Ch±±±rooga" performing but electrical he did not atimulation [* 4] NYSCEF DOC. NO. 91 RECEIVED lower back. throughout the her before She day, Plaintiff not could email am and I don't Fenster responded: At patches cream and friend" she doctor at that time, its the "Hi ice little and felt 20 minutes on nothing skin her her specialist should not still she return had to sen [sic] a to go "OK don't think sent the some in 2nd daughter after burn. degree back." on my no electrodes and I left 8:00 the me let am at 8:15 At her yesterday Please in Friday she used photograph pain come and her morning, and Dr. a.m., to check it many message and Plaintiff back September in with before. 4 she to be it may Dr. advised with ok from those triple antibiotic Forman, a "good put with continuing testified she did the not what see a insurance." on times he if that's ice, testified treatment. and the from Hospital, health Fenster, it's text and Sinai medical but Plaintiff a photo "terrible Dr. and be able uncomfortable," she will they sent seek a.m. visit Fenster: at Mr. Wanted Nicole, - I've and back, in the tomorrow's electrodes." the stimulate, "very developed and Dr. and were a "different with 9, 2016, it." around care September uncomfortable patches to on and at 7:39 and cancel wrote because did email: from she was that to sleep yesterday work primary back back back, those plaintiff is a transplant Plaintiff like can on but "I of any bandaids for on-and-off back "sock" at 3 or 4 a.m. her I should thinks that to her a protective on her went my back iced "we doing following Fenster: my back who was of to my I went on a photograph p.m, with up bubbles" She think 1:26 woke side. left I over instead. Doctor. her Fenster Dr. she "weird to Dr. I think if that felt to take following know on lay phone cell she ice night. that testified pain," of type applied and gel-pack an ice using to bed going home returned 10/29/2020 NYSCEF: you Please 19, on let 2016, the me he burns- know." sent her it does Plaintiff the look to me did not [* 5] NYSCEF NO. DOC. RECEIVED 91 to Dr. respond Jeanette, credit that stating in her September 9, 2016, no were email, not further saw was anything her her back. and his she burn could and the facts on defendants at her identification The only Dr. photograph unrecognizable on in the res of doctrine records and record of ipsa submitted The dnosition Dr. is included to whom she Fenster for was visit." not from judgment as to the is entitled the in February asked Dr. but Dr. from the left opposes malpractice the claim, of to an inference when if there Dr. Fcñster electrodes the on a consultation, lower action. instañt there and 2017, that for the on best Lash Lash on text e-mail, injury or doctors daughter's a dermatologist, Plaintiff sent office. ice, commcñced two the or his told located a refund 2016 24, She and back, a "scar, plaintiff the her of October Geronemus, back."' Defendants motion and cross- arguing that under negligence against loquitur. the with photographs reviewed plaintiff's it was liability she presented, Geroncmus. photocopy 2017, summary judgmcat medical only and Fenster the saw friend Dr. her on said Lash 21, for moving scar" complaint" "chief circumstances on Dr. by father mañger, requesting treated "annual her and not treatment for of the plaintiff September summary based 'The Dr. now are partial and her medical office his was to her and to ice, is the who a response Lash, rid and ice, 2, 2017, indicate Dr. from the Forman, plaintiff sought an email she testified Dr. between first sent a burn a dermatologist, to "get from She received doctor, do it is not are they plaintiff she was recõrds for Lucas, care Meñwhile, moves Dr. testified On October answered, that appear primary the thought and she 2016, "agree" communications Plaintiff she and 24, treatment. 12, 2016 referenced It does October on doctors two September for friend. but Fenster, 10/29/2020 NYSCEF: by and motion of plaintiff's her with Scptcmber expert, Dr. 5 that injury have Fenster's 13, 2016 are cross-motion, e-mail not been records, to Dr. were provided and the to the is a minuscule Fenster. of records marked for Court. and [* 6] NYSCEF DOC. RECEIVED 91 NO. Just as in chiropractic of the and v. O'Halleran, by in the and particulars, (1 Dept based this satisfy facts the in the defendar.t's expert the "elucidate Wasserman v. "[T]o commit malpractice Roques v. Nobel, medical doctor departure opinions was are Montefiore 382 (l" summary that and the that proximate adequately "in [1" 226 To meet defendant Dept departed the injuries by the record, 70 AD3d 15 the burden, (l" proximate 6 AD3d did and that the cause "plaintiff from summary 2008). proper 403, why."' Dept is supported bill of AD3d 204 must be of opinion was 69 73 (l" opinion the treatment demonstrate alleged." Dept that Nobcl. and expert, defendant 430 Expert 2008). patient's AD3d Mctc!f and (PI 404 Dept L4 (quoting 2003]). must of Dept to the 'what was this (2"d v. cause 2016); or the a departure no Dept complaint 10/29/2020 in proximate testimony Lwrence_Ho_spital plaintiff malpractice opinion Sp_e Roqucs "explain 225, cause supported Center, must 104 nature. the v. Ocasio-Gary the the way" what expert the (2nd 12 in the 727 not v, Silverman, known personally AD3d 138 was there was allegatións in AD3d 54 judgment, at 207. attesting Medical Dept factual AD2d departure preseñ: and 307 supra must specific care." any Mitrovic 2016); essential opinion expert avert Dept or those showing judgment summary that facie that for moving v. Cavagñüolo, the specify of Carella. or v. Svh, should Defendant's 2010). practice addresses record standard a prima defendant Joyner-Pack facts (2"d burden, record, make Bongiovanni 758 is detailed, 2010); on . See AD3d 137 To chiropractic alleged. a defendant action, must action, accepted injuries 2013). malpractice malpractice good from a medical NYSCEF: 2009); must accepted Ld. the If the must in and from a that the expert conflicting be denied. v. St Barnabas 1lospital. fact injuries." affidavit practice parties' did plaintiffs an submit medical judgment Cruz of defendant San Frve v. 50 AD3d [* 7] NYSCEF DOC. 91 NO. At the expert in plaintiff's of motion. surprise "it obtained (1" 516-517 Dept "set the accepted standards 39 Bloshinsky. (2nd Dept of that to liability, Dr. Fenster chiropractic machine lower services, he failed since malpractice the a physician is chargeable proper Dept care and bill to act with which v. 90 in accordance of the v. and is more AD3d must simply negligence," alleged with those knowing Contreras Kata particulars of the treatment accord 2007); the proof in nature, Colwin theories new judgment limit pleadings, constituting failed are so they is evidentiary action, physician identified summa·y disclosure." expert departures defendants' amplify that the particülãrs, to is to or omissions which (2"d 849 and acts to the 848, back as a result noted "TENS defendañts' not failed to in the exercise including due back; of the plaintiff's objection, asserted to exercise to plaintiff's 9As replace in applicable AD3d the opposition a matter set forth of that NYSCEF: but good and medically plaintiff." v. Toth 102 Adevemi, AD3d 720 2013). theories back; manner practice, Contrary alia, of in bill of particulars a bill not need objection in her time In a medical need medical of first 2011). statement accepted the included depositions a general forth not through "provide not for defendants' address are purpose at trial, appropriately must raised the Although prevent Court affirmation improperly liability 516, the outset, RECEIVED and bill of particulars. reasonable the application care, caution plaintiff electrical the complaint above, unit" "electrical with expert care, of affirmation The caution an electrical and vigilance in suffered burns, skin machine.' stimulation and bill stimulation of particulars machiñê." 7 Q v4 O1 bill and does of particulars diligence stimulation discoloration In opposing been new inter alleges, in performing machiñe on an electrical applying have assert not and stimülãtion to her scarring defendants' deemed plaintiff's motion, amended to 10/29/2020 [* 8] NYSCEF DOC. 91 NO. RECEIVED expert plaintiff's information obtained the changed to the pads and Contreras v. plaintiff's theory (2019). from their of these who opposition v. In support a board certified chiropractic the medical in response Murphy submits suffered a burn affirmation her records and to plaintiff in the area the deposition and Notably, of Dr. ly during Dr. not in v. Dept 2020); distinct are from electrical den, app NY3d 34 906 Fenster's deposition a supplemental affidavit by plaintiff's attempted expert. assert to and motion, an expert pleadings, s oppositiõü affidavit. Dept), he as such, a new theory departures the the motion. S_qq Dr. Joseph Murphy, particulars, the determining supra. the films, has be considered submit reviewed the the Anthony (2"d nor of additional pads. with, identified judgment v. Adeyemi. who back can 661 submitted departures plaintiff that defeñdañts motion, a supplemental on finds have summary chiropractor, and above, of the addresses Contreras supra; present obviously AD3d performing (l" 576 defendants and Court AD3d the conflict in use when pads, he stored 180 neither negligence defendants' to v. Ravi. his he applied when 10/29/2020 using as to electrode skin, in which details 173 were details, expert Smina, manner Fenster's the patient's the allegations these testimony he re-used see Mehtvin counsel the and the v. Rana. specifically in plaintiff's Anthony noted those times of Fenster's Dr. additional Dr. Marti their circumstances, in liability identified as to expert as to Sqe pads 2018); These liability and he testified Dept of and skin, supra. Adevemi, Defendants Under (1" 604, procedure. stimulation when patient's the of the picture" detailed particularly number the he cleñcd when AD3d 159 Smina, discovery, machiñe, pads, a "more presents during stimulation electrical gel affirmation NYSCEF: Fenster's 8 affidavit the bills of and testimony, cross-motion Dr. from for Murphy does treatment and Dr. Fenster's summary not chart. that her back As Dr. judgmcat, dispute as result, relevant plaintiff is [* 9] NYSCEF DOC. NO. 91 and scarred, reachiñe rare" RECEIVED instances where or the Dr. he Dr. standard of adhesive properties, that a re-usable opines still ensure that its pad to prior there departure sufficient longer maintained Dr. Cash's opposite this pads have conclusion, Dr. the machine As opines m÷+=in of how are the only moisture so concern it is stored is the as a re-usable due a "multitude to pertinent is not mea*a4aad and moisture electrode pads with re-use the adhesiveness care of and it is stored, stored that sufficient standard practitioner's the departure to the Murphy the as the speculative, properties where pads are pads re-used, of "extremely by use. Fenster that failed Dr. to use would Fenster as he explicitly gel/moisture, "good are not electrode is sufficient Dr. record. electrode focus regardless dispute" conclusion, the properties, the in the adhesive sufficient that Cash, pads, the on pads Dr. electrode electrode repeated that the that qualities, that or evidence in tolerañce. expert, to ensure opines which it is "beyond refutes store adhesive to cach no testimony or they in manner the facts the He adhesive ensures maintained they support as here, electrode's the opines Murphy once Fenster's of by occur the subjective patient's can burns 10/29/2020 stimu!2tor electrical the malfunctions, of plaintiff's a practitioner to be re-used. loses respect opinions protect where, to electrode they record and practitiêñer With them requires only He the extent to properly eventually provided Dr. supported sufficiency factors." gel, not are continue and electrode the practitioner can amount of care the they that failed Fenster requires asserts the when that machine beyond is set far a burn suffer acknowledges stimulator current identifies not will he explicitly electrical the Murphy departures a patient that properly," is "working malfunction, that he states while NYSCEF: contact." as there no treatment 9 Dr. Murphy is no only testified opines testimony records address that that from the he no adequate pads would facts replacc in the Dr. plaintiff, issue, to the and plaintiff [* 10] NYSCEF NO. DOC. her and cõñcede expert that opines use RECEIVED 91 the undisputed or replace standard the there of Fenster not that him Dr. to which affects the patient would not would normally the of the feel when machine, was Dr. to use his circumstances, to setting she participated more opines wipe or her down judgment to ensure current and is raised; here, that the a pre-treated to in Dr. any an electrode that reason contact, not as the pads, electrode concerns for is con+-siasted 10 possible is not the Dr. care of and only conductivity, in that the mesñiñg increase as it feel could the similar to her suggests theory. of care the and côñdition. by require not requires cc-ñtsmiñãtion, used does as Dr. since, testimony standard the did use. to was Cash's care had not plaintiff's from Dr. of patient, she re- opines since machine, experience wandard pad, also electrodes would her from He prior pad to the with depart depart standard testified that not iñadeqüãte strength and did used, the of current opines he pads. the and is inconsistent did they whether were creating current of electrode plaintiff Murphy re-usable identify that machiñe's the Fenster electrode they effectiveness however, which Dr. time or the electrical the setting adequate, of the as to whether electrode correct, the in poor results for site were impacted equipment. than cõñtsination to avoid practitioner the similar Cash to transmit ability electrical also Murphy have the with conductivity would if Dr. adhesiveñêss machine's experiences failing that reduced out, that at the and treatmcat to the opines gel decision and use, the he stored his He treatment. assessment further for are pre-gelled, gel/moisture further which in based and moisture insufficient he used pads gel/moisture, points prior the had Fenster Dr. in plaintiff's used iñspection and manner electrodes apply Murphy inadequate effect the the electrodes that personal his qualities on based care testified require Cash adhesive evidence is no on pads, the inspected demonstrate facts electrode sufficient maintained never they 10/29/2020 NYSCEF: in a practitioner such [* 11] NYSCEF DOC. NO. 91 RECEIVED He opines the electrodes for used about testify contains before, facts no plaintiff's or añytliiñg products, used record the the prior the number present use or ccaditiõñ on times skin plaintiff's of the had they parties electrodes, been not did or the as to any testify and electrodes; Fenster of did were not definitely re- prior the during 10/29/2020 skin dirt, they condition their and Dr. whether specifically re-used centamination as to potential to a concern as the trashent, else of rise giving NYSCEF: uses. As that plaintiff's and sca=es injury. burn is consistent treatments. been logic" explanations injury, the by to the location. she wound Dr. are had developed of that Dr. Cash's back, area. the treatment fact that that He since plaintiff opines at some and was the Fenster's prior point that standard to her only and he engages the explain and could while burn is located applying ice factual on-and-off plaintiff's for icing over icing course of her plaintitPs the back, in back, hours, same to the possible two an entire which must burn or visible of number any "very for these the merely the area, of stimulation placed repeatedly the shape record of no complaints plaintiff's and concludes between had of the electrical been same on-and-off size quadrant Cash reasoning confirms as the have in the distinctions plaintiff 11 Dr. in hindsight the used left conelesion Cash's development is misleading, electrodes that the confirms lower Dr. evidence electrodes in the treatment, following support photographic opinion asserts the record would is located injury the treatment, of her symptoms opiñiõñ shape the Dr. Cash's and that after or traumas Fenster's in departures, events Dr. that Murphy that no size within locations caused of opines detail, 25% applies same the Murphy rcpicscñts Dr. no facts alleged the by factors, location with without specific have precise Dr. caused other asserts Murphy addresses Murphy is in the of no that burn which was injury Dr. indiestes, Dr. to causation, ended signs day, and when of [* 12] NYSCEF NO. DOC. 91 RECEIVED went she to sleep without visible caused conclude with Dr. and the even shape of had no of or time injury is not burns do notes that in immediate time, or feeling injury until express any signs and the themselves right she was of injury. entire of the away without this mf size and shape when she been the cause of "fully developed of injury the with and the the with of of area 91 the Dr. the wound Cash's the and/or burn, visible any of throughout as she injury, and the given the morning, opinion Dr. time, developing back observed following over a serious her first wound"; the progress sustained 12 12 such in record coñsisteñt are and Disagrccing plaintiff touchiñg burn to record, the opines how having no progression day, the in the a defect by was sizes. discovery care. of as to account Fenster's the shape He caused burn treatment." facts no burn. the was information discovering was burn and treatment he maintains throughout though no and there Cash, yet symptoms, even Fenster's Dr. size plaintiff's that Dr. to Dr. the caused the and case still it is "impossible subject the by in this that that was plaintiff's that opines caused plaintiff back, "possibility" Murphy burn that shapes of treatment related to the her icing the was mechanism asserts a variety the burn about he provides of fully the possibility Cash with between symptoms that Dr. the opines symptoms according of Dr. further always developmcat observing come causally not ice, the electrode, is inconsistent amount during the Murphy signs including that of day given nothing out ruling an entire and about though which injury that after syrsptoms, certainty conclusion and Dr. of opines evidence electrodes, and injury degree any Murphy no machine, of that Noting instrumeraslities," a reliable contains size signs "other by support at night. 10/29/2020 NYSCEF: that Murphy gradual and suffered signs the of day no injury without [* 13] NYSCEF DOC. NO. Dr. that facts his do Cash's ultimate the process observed his review have plaintiff trcaw:cñt. caused some course the caused such by Dr. way visible sleep that opines of degree with night if this pain, the the Fenster's area or any a visible before, progression treatment, and caused true" by prior ice. Dr. of plaintiff's treatment. 13 in Dr. fact Murphy burn injuries her a.m., s testimony opines that such not Dr. as this to Fenster's it would its have development that on with proximately was based prior redness based is inconsistent were a burn to she that and treatment, during while sleep, related of she opines to going causally point that Murphy -Pum, Fenster's plaintiff the Dr. was explanation Cash's or symptoms 7:00 at a refutes plaintiff testimony day, to or, at some given developmcat that the to the actually while Dr. pain at approximately it was applyiñg and time assuming period with no pain, "somehow time had but Cash, 10/29/2020 theory serious and develops, to plaintiff's during swelling, is "particularly while time or symptoms discomfort burn injury short and lesion, were injury of the Pointing kind, Dr. Cash's Dr. symptoms by type that the support causing is inconsistent plaintiff by this at some injury taken which day, of any not described during of do asleep assumption develops. home, sign photograph the of the photographs, on to touching repeatedly lesions her the progression such or itself He of how swelling expressed going explanation injury some the of progression of office, have would would the redacss, Fenster's there on no was progressed that type this plaintiff on logic" and gradual fully opines which of it rests and mediciñê "facts, while and since Murphy by the type analysis appeared Dr. Dr. the conclusion, instañtañeously asleep." show not that developed lesion Dr. contrary, in opines Murphy a significant as the NYSCEF: RECEIVED 91 over was she his review it having caused of been by [* 14] NYSCEF NO. DOC. 91 RECEIVED to plaintiff's Turning and Rehabilitation. of photocopies plaintiff's stimulation with procedure Dr. Murphy, establishes injury but the converse that Dr. Fenster to Dr. pair one therapy uses risk of of electrical defect electrodes electrical in the on electrode Dr. machine. consistent with also that the scar is located notes plaintiff's While possible manner electrode in the to the size and records of the identify itself, the or in the of the defect burn in the Dr. that caused the occurred, of deficiency procedure. lie contain Dr. the actual plaintiff's defect the opines gel on that the Fenster Dr. necessarily electrode defect plaintiff's electrical for he used Cash by opines have pad; been notably, in the burn with the burn scar are the electrodes. it is not Fenster, that based either he electrode He that showing placed Dr. some stimulation. rendering testified electrode an actual 14 used of a computerized burn, would shape and or plaintiff's fault" the a potential poses of through since and machine significant burn current spine, the using initial he agrees states electrical photocopies by "some size an electrical treatment the color electrode" location without the that lumbo-sacral in Murphy's of plaintiff's injecting error Dr. presence by in the and and procedure. Medicine color properly, the electrodes, on as the Geronemus that via caused a "standard precise fibers based Fenster, the works practitioner was injury shape perform skin that concedes that Physical in records, Geronemus, Murphy meaning certified Fenster's it is performed properly by opines Dr. of true, to the by used if muscle either the acknowledging in which duration Cash Dr. Dr. stimulation applied evident" machine not stimulate to a patient burns the is also Dr. of that a burn did to current it is "patently wõüñd, cause electrical Cash, records out pointing not should According at least by is board depositions, the wound, S. Cash Bradley parties' the burn He begins affidavit. expert reviewed He Dr. expert, NYSCEF: in finds on the no sufficient the actual departure to 10/29/2020 [* 15] NYSCEF NO. DOC. 91 cause not RECEIVED a burn, stored properly in since skin, electrode the the the the gel would be replaced exposed Cash to air, gaps between burn injury. to protect plastic that pads the by Dr. the standard to the skin He the the they plastic cover inadequate care. opines it is "more Dr. gel when plaintiff's until the electrode can dry to air of the are properly sealed so as to properly Dr. Cash further out, Dr. the Cash opines that 15 Dr. Fenster notes that from them based the surface that result the of her the binds stimu!ation to gel to the is degradation that he reused and the testified great" pads to the on the the pads and out, that plaintiff's materials he come his skin, can stored use are creates cause and a sealed stored the in packaged out. drying and and that be properly testified and properly quality arcing to air drying stored not adhesive should exposure pads secure or their they but was additional "not in electrical result to prevent protect gel reduces re-used, drying machine. are can burn contact." are overused which that pads and pads to assure infirmity" Fenster became adhesiveness and apply obvious as Dr. machine electrical not were inadequate skin disperse "most "good out, skin the pad patient's he did skin, ment÷cd the the that of the the that pads plaintiff's electrode that in of likely" and electrode resulting checks transmit opines and and electrode of re-use to the testimony Cash patient's and to pre-applied the longer when the exposure out to dry Cash Fenster's gel from gel maintenance 15 times pre-applied manufacturer of Dr. no that that pads, aññüal preparation and electrode with the skin, when failure the between to 10 to opines expired so as to efficiently about pad Fenster's with interface opines the them under is an inadequate pads Dr. Dr. between plaintiff's and/or of causing intensity. Pointing or pad electrode pads gel area. targeted use to comply conduction securely electrode of failure and frequency a defect of the or inaiñ:ained or the conduction, proper include could NYSCEF: of He electrode departures he reviewed, opines the from nature 10/29/2020 [* 16] NYSCEF DOC. burn of plaintiff's patients that gel out, drying were on the support to the pads and arching pad are the burn such not visible out the any for plaintiff allowed eye injury, pads gaps but of or difficult pads the that were patient not his that might to discem, and pads the practice standard to be contaminated the that notes by use of also become adherence skin, sure in resulting the skin and and wipe he might do of re-used. were or dirty hairy facts adhesion with fiom skin, can pads to be interfere pads the the and practitioner where the inadequate pad the might here, as the cause between on prior it was can to assure failure opines to pads to plaintiff's Cash s skin, which important" if the Dr. the to p otect adhered plaintiff and substances that use s burn "incumbent" it is pad, the injury. creating is "particularly testimony burn that failure adequately contaminants foreign an alcohol naked plaintiff's conduction, of which with practice to the Dr. so, Dr. caused and makes by Dr. factual with particularly had been Murphy's Fenster's treatment, assumptions respect burned. to and the Dr. as to the opinion Dr. arrives time interval Cash opines Cash absence asserts at conclusions between that that the proof Dr. that a patient's 16 of burn that substance a foreign alcohol plaintiff's Murphy itself can burn injury "hard evidence incorrect," are medically and plaintiff's reaction ignores to pain "full off Cash pads. was she free of or other oils were pads clectrode He opines Fenster's pad the poor and and Addressing that skin injury. clean electrode opines explanation dirt, skin to Dr. Pointing causes the hydrated, electrode applying prabable" it is "most sufficiently the for procedure therapy, that assure between of pad, conductivity to producing contamination by was pads failure an alternative coñtamiñated the the and competent the As the electrode accepted and stimulation electrical undergoing the standard and injury, 10/29/2020 NYSCEF: RECEIVED 91 NO. appreciation" is subjective and dry [* 17] NYSCEF DOC. NO. 91 patients RECEIVED often pain. He also reductiõn of similarly the numbness masks of plaintiff's that where progression, not initially, to full when photographs, in exterñally, which explains He opines that result in the gradual realized progression wonñd recognition how serious of burn and but takes even to more deep the actuality why if Cash the the the burn initial taking time to of burn severity the it was injuries." is "fully Dr. fully gel she burn wounds over time are burn burn is much burn express over points degree out 17 the that as they time burn was the in the between medically burn and burn while Dr. and Murphy is from resulting wound not and in shown visible after it occurred. progression until would the consequently treatment known which subcutañêóüs immediately severity, subcutaneously, burn likely tissue they burn apparent, plaintifPs secondary of since occur, and "visible" the of as secoñdary fully of appreciated hours with static become superficial, its the deeper fully were a at the progression case to create not support factors cutanecüsly to consequential was pain; be experiencing is know injury, in the that superficial not in what as it progresses actual might a producing both pathopphysiologic the opines and pain; experience may by for tolerance underlying in pain 10/29/2020 pack. of the consistent Cash the ice extent time Dr. stimulation, from that themselves nature producing to address opiiics to days. hours progressing further Cash immediately, the fails Murphy a reduction pain mask can cause whatever applying express the electrical muscle deep the occur several typically Dr. injury, also to appreciate when Dr. known medically does later will which individual a patient progresses, testified, condition underlying ability and burn plaintiff's are the pack on depending therapy as plaintiff ice of an degrees stimulation or numbñêss, application Objecting different as electrical that sensation procedure the in markedly pain opiñes that reduction of register NYSCEF: plaintiff recognized repeatedly states that [* 18] NYSCEF DOC. plaintiff's burn provides been no on the Based fact of not does the current is set machine that the On the standard did not of care skin, that Opiñiñg were no electrode pads additional gel patient's by skin on the have caused to plaintifPs prior 15 times pad to the or the Dr. on Dr. and which storing patient's procedure. Cash, skin, Cash had had points them Cash to nor also 18 Dr. machine the burn will the record Murphy, Fenster's rare" instances or the malfunction, occur not when contains no morning Dr. Fenster after the evidence in any the in that a gap he and way, the out or the the provides were pads and between a medical electrodes burned his patients, explanation that her and skin. so the contaminated, practice the from pads as to reusing testimony machine, electrode the which pads departed used between or arching, the clean of area malfunctioned Fenster's inside "extremely that opines created Dr. Dr. raise treatment. procedure, dried in until back that opinions expert, the Fenster condüction skin, Dr. her expert in on but Fenster's the pads occur pads Dr. by perform the back however, on Dr. in electrical gel "sticky," burn expert, adhere 10 to electrode the defendants' tolerance, used the can electrode opines, the by to properly pre-applied to the of failing longer or the machine aware a defect a bum that Murphy plaintiff's hand, causiñg the he device, where conflicting on her injury subjective Dr. become other stimulation location Significantly, a burn patient's pads not sufficiently plaintiff's pads not it could procedure, the or the causation. machine properly." did electrical in the type, presented have acknowledges beyond machine plaintiff since and stim±far is "working parties the suffered he explicitly far of this injury or the occurred. plaintiff electrical Fenster Dr. by a burn departures that and caused foregoing, as to the dispute treatment, where have could not how explanation placed, issues was injury 10/29/2020 NYSCEF: RECEIVED 91 NO. not nor for the to apply clean the the lapse [* 19] NYSCEF DOC. in time the between Dr. to wipe pad or the patient's was more than in the setting gel/or moisture the as she not the address electrical Dr. that arching Dr. While Cash injury, Dr. plaintiff's icing of same Moreover, while consistent with the to such size, burn before the Fenster's pads or wound Dr. testimony were but would when not Dr. as to 2 inches the of the the the the of the and electrodes the by lack not, of reducing machine's strength however, plaiñtiff and participated opines the He does to the conductivity machine the and current gel the He also is raised. setting that the require apply machiñê the of procedures. electrical or to suggests effectiveñcss between fails Murphy her size, location of Dr. visible neither Dr. location of 2 inches, the shape s skin created and location used of nor Murphy the which Dr. electrodes means 19 by and reviewed photograph Cash just on they Dr. the burn he Fenster, on back square. of addresses and Rather, that is injury no of is part or mentions injury. provides photographs injury that opining plaintiff's plaintiff's were by caused relies plaintiff's issue as likely of for explanation this addresses procedure electrode Cash an alternative to provide affidavit after back the that a single by on not does skin, affects the care of testimony impact supplemental and Moreover, patient's prior a gap or location. shape based injury, skin. opines shape or the during feel not that area standard feel could would Murphy's Cash size, scar, Court. he used the burn the that plaintiff's done that her objects burn that would opinion plaintiff's details pads burned pad she had patient Cash's of opining electrode opines as it normally increase Cash, testified electrode meaning Dr. as she current, the on conductivity, with He also skin. awareness injuries." burn a re-usable down adeqüã‡c, of plaintiff's and disagrees Murphy practitioner directly of progression "recognized would procedure 10/29/2020 NYSCEF: RECEIVED 91 NO. plaintiff's the record Dr. the Dr. electrode Murphy [* 20] NYSCEF states incorrectly used," electrodes different shapes the possible on asserts no that and sizes, her causes are in the electrodes provides malpractice not doctrine have of injury. size a stãüdard shape various types. the res of is misplaced burn the regarding photocopies claim, plaintiff's record do on the reliance of facts loquitur ipsa S_e_eSklarpva and are as a liability opinions conflicting AD3d 180 v. Coopprsmith, the but size, to establish experts' the given of shape and as to (1"t 510 2020). Dept in view Thus, and therefore Cruz v. expert conflicting preclude Hospital,su_pra. issues opinions, See judgment. summary St Bamabas Defendants' Frve of fact exist v. Montefiore and motion as to the departures Medical Center, cross-motion plaintiff's are denied. Accordingly, ORDERED informed the of which causation, supra; consent ORDERED and and plaintiff's law of "there and Finally, matter that 10/29/2020 NYSCEF: RECEIVED 91 NO. DOC. it is that defendants' and claim; that in all motion is granted only to the extent of the dismissing it is further other respects defendants' for motion judgment summry is denied; it is further ORDERED DATED: Octo THAT lack plaintiff's for cross-motion partial summary judgment is denied. ENTER: 2020 .C. HOOL JOAN A. MADDEN J.S.C 20 of
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