Petrolito-Mccort v Latefi
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Petrolito-Mccort v Latefi 2020 NY Slip Op 34707(U) October 28, 2020 Supreme Court, Nassau County Docket Number: Index No. 603150/2017 Judge: Jack L. Libert 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] NASSAU COUNTY CLERK 11/02/2020 11:11 AM INDEX INDEX NO. NO. 603150/2017 603150/2017 NYSCEF DOC. DOC. NO. NO. 70 70 RECEIVED NYSCEF: NYSCEF: 10/29/2020 SUPREME COURT .. STATE OF NEW YORK PRESENT: HON. JACK L. LIBERT, Justice; VICKIEPETROLITO"'.MCCORTandDANIELMCCORT, TRIAL PART20 NASSAU COUNTY Plaintiff, AHMAD LATEFI, M.D. and NORTHWELL HEALTH PHYSICIAN PARTNERS, MOTION# 01, 02 INDEX# 603150/2017 MOTION SUBMITTED: JULY 14,2020 Defendants. The following papers having been read on this motion: Notice of Motion/Order to Show Cause.......... l Cross Motion/Answering Affidavits ................2, 3, 4 Reply Affidavits ..•......•.•......... ;;.,,.~ ............... .., ....... . Pursuant to CPLR 3212, defendants move for smnmaryjudgrnentdismissing the complaint (Motion #1). Plaintiff cross moves for leave to amend the complaint to add a cause of action for lack of informed consent (Motion #2). BACKGROUND This medical malpractice action arises spinal surgery perfbnned upon plaintiff by defendant LateJi at the·facility of defendant Northwell. The following facts are essentially undisputed. Thl:l decedent first presented at Winthrop University Hospital on September 30; .2010 with p~ncytopenia and a high fever. The moving.defendants undertook het care and treatment during her admission and continued to do so untilher death on September 26, 2014, Plaintiff suffered from along history ofchronic pain in her neck, back a11d extremities. Iri .2012 she was diagnosed with a herniated disc with multilevel spondylosis, at C4-C5, CS-6 and C6-7. OnDeceml;,er 4,. 2012, the defendant underwent fusion from C4-C7 (performed by a non-party ~tLirgeon). In .May of 2013, . ...... ·····l···Of·B· 1 of 8 ------------------------- [*FILED: 2] NASSAU COUNTY CLERK 11/02/2020 11:11 AM NYSCEF DOC. DOC. NO. NO. 70 70 INDEX INDEX NO. NO. 603150/2017 603150/2017 RECEIVED NYSCEF: NYSCEF: 10/29/2020 the defemlant complained of continued neck pain, bilateral scapular pain· radiating down to her thoracic spine, arm pain, numbness in her hands, and lower back pain, Following MIU studies earlier in the year on October 24, 2013, plaintiff underwent a IU111barlaminectomy decompression for a spondylolysis at L5c.:Sl (by another nonparty surgeon). None of these surgeries were perfonnedat defendant North Shote. On or about March 5, 2015, plaintiff presented to Nolihwell Health Physician Partners/Chiari Institute at Great Neck. She complained of difficulty swallowing, shortness of breath, decreased interest in sexualtelations, arid decreased sensation in her pelvic function. She reported her prior fusion and intense ·and unbearable post-operative pain. On March 3 0, 2015, plaintiff presented to Northwell Health Partners for an initial evaluation with Dr. Rekate. She reported difficulty swallowing· and pain when attempting to swallow. Dr. Rekate noted plaintiffs scans revealed a distortion of the esophagus related to bolts used from the prior fusion requiting a major revision of her prior fusion, possible decompression of the esophageal distortion and possible incorporation of the superior adjacent segment. Dr. Rekate referred plaintiff to defendant Latefi for a surgical consultation. On March 3 l, 2015, plaintiffpresented to Dr. Latefi for the first time. At her initial appointment with Dr. Latefi, plaintiff complained of severe and progressive neck pain radiating to both shoulders. and to the base of her skull. Plaintiff also reported difficulty swallowing and breathing. Dr. Latefi performed physical and neurological examinations, reviewed a CTscan ofplaintiffs cervical spine taken October 16, 2014 and reviewed an MRI of the cervical spine taken December 1, 2014. Dr; Latefirecommended surgical intervention to remove the previously placed plate and screws from het cervical spine. He also recommended an ENT consult concerning the breathing and swallowing issues, OnApril 7, 2015, plaintiff returned to Dr. Latefi's office with continuing complaints of severe neck pain, cough, difficulty swallowing.and bilateral· shoulder pain. Dr: Latefi again performed physical and neurological excµninations and again recoi11111.ended that the plate be removed and thatplaintiff undergo a one level low.:.profile anterior cervicai discectomy and fusiqn above the level of her e:,di;tirig fusion; He pointed out that she had adj acentlevel degeneration and subluxation at the C3-C4 level. 011 April. 22, .2015, defendant was admitted to defendant Noi:thShore by Pr. Late_n on Aprii 22, 2015 for the ACD :F pro9e4ure and .spinal hardware removal and re.-fixatidn of the vertebra. using 2 2 of 8 a model ''R.01-C'; cervfcal cage [*FILED: 3] NASSAU COUNTY CLERK 11/02/2020 11:11 AM NYSCEF DOC. DOC. NO. NO. 70 70 INDEX INDEX NO. NO. 603150/2017 603150/2017 RECEIVED NYSCEF: NYSCEF: 10/29/2020 (manufactured by "Zimmer Biomet)". Dr.Latefi was familiar with the LDR ROI-C cervicaLcage, having used it on other surgical patients; The procedure was completed at 3: 11 p.m. without complication. Doctor Kadkade, a non party ENT physician assisted with the ENT portion of the Surgery. After the surgery plaintiff was transferred to the PACUin stable condition.She was discharged home in stable condition on April 24, 2015 with post operative medications and dietary restrictions. On May 1, 201 5, plaintiffpresented for a one week follow-up appointment with Dr. Kadkade. She complained ofpostnasal drip and moderate difficultyswallowing solids, but was able to tolerate swallowing liquids. Dr. Kadk_ade's post-operative assessment was edema and chronic allergic rhinitis. On May 5, 2015, plaintiff returned toDr. Latefi's office andreported that her pain and cough had improved and she was able to ambulate, tolerate soft foods and no longer had shortness ofbteath. She reported mild pain in the back ofherneck. Dt. Latefi ordered an x-ray ofthe cervical spine and advised plaintiff follow up with him again after the x~ray was taken. He also instructed plaintiff to begin physical therapy, On May 26, 2015, plaintiff ·underwent x~rays.ofthe cervical spine, which showed the ROI-cage atC3-4, without evidence of hardware failure ot fracture. Plaintiffreturned to Dr. Latefi's office on June 2; 2015, with complaints of headaches and right leg pain from the right buttocks down to the lateral aspect of the tight leg. She denied any swallowing or breathing difficulty·and did not complain about neck pain and associated symptoms ... After conducting a physical and neurological examination Dr. Latefi determined that plaintiff's headaches were related to the cerVical spine operation and that She had signS of sciatica oh the right leg. Dr. Latefi recommended conservative treatment for the headaches and leg pain. On June 16, 2015, plaintiff returned toDt. Latefi's office and reported intermittent left shoulder and forearm pain. She still complained of frontal headaches around the area of the sinuses. Following a physical and neurological examination, Dt. Lafeti advised plaintiff to return in September 2015 With updated x::rays. On October 6; 2015, plaintiff re:ttrrried to Dr. Latefi' s office with the new x-rays. The. x-rays rt:vealed that the hardware was in place and fui;::re was bone fusion across the C3.:.C4. The physical examination showed a motor strength. of4/5 on plaintiff''.s left handgrip. the. x.-raysindicated radiculopathy at G7.:T 1, Dr. Latefirecommended a cervical MRI, and prescribed a course of steroids. On October· 16,2015, plaintiff 3 of 8 - - - - - -----------------a----e-f----8---------·· --- -- - -··· - ···-·- . ·-·······-··· ·····- . [*FILED: 4] NASSAU COUNTY CLERK 11/02/2020 11:11 AM NYSCEF DOC. DOC. NO. NO. 70 70 INDEX INDEX NO. NO. 603150/2017 603150/2017 RECEIVED NYSCEF: NYSCEF: 10/29/2020 underwent the cervical MRI which showed integratiortoftheRQI-3 device with no evidence ofneurological impairment.and solid struts of bone bridging the C4..;C5. Plaintiff returned to Dr . .Latefi's office on October 20, 2015 and October 27, 2015, Dr. Latefi performed a physical and neurological examination at each visitand he scheduled a further x.,.ray an.d CT scan. Plaintiff was placed in a neck collar; Anx-ray and a CT scan of the cervical spine :were performed October 30, 201 5. On November 3,2015, plaintiff returned to Dr. Latefi'soffice complaining of tingling or rtutnbness in the her rightarm and right lower extreillity as well as neck; shoulder and leg pain. Dr. Latefireviewed the recent radiology studies, and noted the CTstudyofthe cervical spine revealed a solidfusion from segment C4-C7. a:nd the start of a bony fusion. across· C3 .,.c4 with hardware in excellentalignment and no evidence· of movement or instability. Dr. Latefi found no radiological explanation for the neurological symptoms complained of and referred plaintiff to a neurologist (Stephen Newm~, M.D.). for treatment. On November 13, 2015, plaintiff consulted with non-party orthopedic surgeon, Marc Agulnick. The doctor reviewed plaintiff's radiology studies and found the cervical hardware appeared stable with no evidence of loosening; Dr. Agulnitk noted that since plaintiff was only seven months. out from her last surgery, it was too soon to tell whether she was completely fused at the C3-C4 level. Dr. Ag;ulnick reconunended continued physical therapy and treatmentfor pain management. ·On November 28; 2015., plaintiff presented to the ER at Winthrop University Hospital with complaints of neck and back pain. A CT of the cervical spine did not revea:l an.y evidence of steno sis or bulging discs. Ah Nffi.I of the cervicalspine was taken. The plaintiff was examined by orthopedic resident Dr. Timothy Fei. Plaintiffcontplairted of left sided numbness and voice malopathy, She denied having bowel or urirtaryincontinence, Dr. Fei reviewed plaintiffs radiology studies and noted, "a 1'bony bridging aqhe C3-.41 evel. C3,-4 did not yet appear ,icompletely fused. 11 Dr. Fei noted that plaintiff's symptoms were inconsistent with spinalpathology and sh¢ was discharged that same day. Plaintiffreturrted tQ Dr. Agulnick1s office on December 2, 2015, .complaining of 1'ilew neckpain 11 headacbes, and tenderness 1n her arms. According to Dr. Agulnick th\;:re was nothing in any of the radiological studies dorte suggestive of these symptoms and she·was neurologically stable. Dr. Agulnick 4 4 of 8 ---····-··············--····· [*FILED: 5] NASSAU COUNTY CLERK 11/02/2020 11:11 AM NYSCEF DOC. DOC. NO. NO. 70 70 INDEX INDEX NO. NO. 603150/2017 603150/2017 RECEIVED NYSCEF: NYSCEF: 10/29/2020 recommended repeat x-rays in three months and a follow up CT scan. Plaintiff returned to Dr. Latefi1s office. on Janu.uy 19, 2016, stating that her neck pain had resolved, ·but she had severe leg, back and groin pain. She reported a recent visit. at Winthrop University Hospital which she said was for bladder dysfunction and urirt.uy incontinence. Dr. Latefi advised her to see a urologist, but she failed to clo so. Plaintiffreturned to Dr. Latefi's office again on January 26, 2016 with similar lumbar complaints. Plaintiffs last visit with Dr, Latefi's took place on February 24,2016. At that time she complained ofneckpain,jointpain andjawpain. Dr. Latefi noted the CT scan showed bone.fusionatthe C3-C41evel· and thex-raysdid notrevealinstability. The doctor performed physical and neurological examinations and concluded that. plaintiffs symptoms were· rtOt due to the cervical spine surgery. Plaintiffpresented to the Hospital for Special Surgery ( 11 HS S") on Februaryl 7,2016 with complaints· .of chronic right foot pain since her lumbar surgery in October of 2013. She also reported bilateral foot numbness and paresthesia. He;r symptoms were de:scribed as a sciatica pain localized to the right groin with pain worse with walking. Dr. Schwab performed a physical examination finding range of motion without elicitation of any pain. Ort March 3, 2016, plaintiffreturned to Dr. Schwab's office with complaints of neck and amt pain, Following an examination, conservative versus surgical treatment options were discussed. Anx-ray of the cervical spine indicated alignment. was satisfactory with no· abnonnal motion on flexion and extension. Plaintiff opted to undergo another fusion surgery. On April 5, 2016, Dr; Schwab perforhled a posterior fusion at HSS. The ROI-C device utilized by Dr. Latefi was left in place. A CT ofthe cervical spine from HSS Radiology from October 21, 2016 showed a united intetbody fusion at the C3,.C4 level. Plaintiff visited Dr. Schwab on April 14,20 I 7. She reported increased pain following breast cancer surgery, but had beflnt.U1ableJo.Undergo physical therapy forherne.ck because ofher cancer diagnosis. A followup MRI of the cervical spine 5:howed fusion at the C3-C7 level without cord compression. The CT ·scan qf the cervical spine also showed the: fi.ision. ln 201 t plaintiff treated with non~party neurologist Laurl!nce H~ber complaining of neck, ariri and shoulder pain and associated dizziness,. rturribness. and headaches. She. claimed that the pain was worsened 5 5 of 8 [*FILED: 6] NASSAU COUNTY CLERK 11/02/2020 11:11 AM NYSCEF DOC. DOC. NO. NO. 70 70 INDEX INDEX NO. NO. 603150/2017 603150/2017 RECEIVED NYSCEF: NYSCEF: 10/29/2020 by movement which was relieved with the use of narcotics. She also reported difficulty ambulating. Dt. Haber otdeted MRlstudies, which did Iiot show anysten:osis. Dt. Haber discussed with plaintiff hi.s concern about extended narcotic usewithout a identifiable physiologic cause. Dr; Schwab spoke with Dr. Haber and both agreed thatplaintiff'ssy111ptoms had no cervical spine etiology. On April 5, 2018, plaintiffretUmed to Dr. Schwa.bis. office. She was. again advised that there was a lack of definitive pathology on imaging that explained her symptoms. DEFENDANT'S EVIDENCE Moving defendants submitted the affirmed expert reports of Craig JI. Sherman, a board certified radiologist; Jack Stern, a board certified neurosurgeon; and Kevin Ong, PhD, a mechanical engineer. specializing in biomechanics and biomedical engineering. Doctor Sherman's affirn:iatio:ti contains a thorough and detailed analysis.of the care and treatment given to the plaintiffand a review of good and accepted standards of' medical practice throughout the course of plaintiffs treatment. Dr; Sherman concluded to a reasonable degree of medical certainty that the moving defendants did not depart from accepted medical care andtreatment and thatnone ofthe actions ofthemoving defendants were a substantial factor in causing her claimed injuries. The affirmation of Dr. Stern contains a similar detailed analysis and reaches the same conclusions. He also concludes that informed consent was properly obtained. Dr. Ong reviewed the use oftheROI-C cervical cage and concludes that the device was safe and usage ofthe device in the surgery petfotmedby Dr. Latefi was appropriate. The latter conclusion goes beyond the scope of Dt. Ong' s expertise as a non-physician and was not considered. However; viewed collectively the three expert reports make out aptimafaciecase for suli11naty judgment. The burdenthen shifts to plaintiff to establish triable issues of fact. PLAINTIFF"S EVIDENCE Plaintiff submitted the sworn report of Dr:. Schwab) a boa.rd: certified. otjhppaedic surgeon and one of the physicians that treated plaintiff after .the surgery performed defendant Latefj. As with the expert reports submitted by defendant, the report of D1< Schwab is detailed and thorough. He concludes 11to a 6 - - - - - - - - - - - - - - - - - - - ·--······-····•·6---e-f--H.--... 6 of 8 __ ..... _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ [*FILED: 7] NASSAU COUNTY CLERK 11/02/2020 11:11 AM NYSCEF DOC. DOC. NO. NO. 70 70 INDEX INDEX NO. NO. 603150/2017 603150/2017 RECEIVED NYSCEF: NYSCEF: 10/29/2020 reasonable degree of medical certainty" that the moving defendants deviated from accepted standards of medical care and treatment in a number of respects including misreading information in the, radiological studies, using the ROI.. C device,: using the anterior approach to perform the fusion and not using "appropriate plates and screws". Dr, Schwab corn::ludes that these departures Caused the plaintiff to suffer pain and reqµire further treatment including the :revision surgery thathe performed. DISCUSSION The essential elements ofmedical malpractice are {l) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury (Dimitri v. Monsouri, 302 AD2d 420, 421). 11Thus~ oh a motion for sum:maty judgment dismissing the Complaint in a medical malpracticeaction;the defendantdoctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiffwas riot injured thereby" Wexelbaum v:. Jean, 80 AD3d 756; 915 N.Y.S.2d 161 (Second Dept, 2011). If the defendant meets this burden, the plaintiffs are required to produce evidenttary proof in admissible form sufficient to rebut the movant1s primafacie showing in order to demonstrate the existence of a triable issue of fact (see Wexelbautn, supra, at 758). A defendant seeking Sutninary judgment in a medical malpractice action beats the initial burden of establishing, prima facie; either that there was no departure from the applicable standard of care, or that any alleged departure did not proximately cause the injuries. In opposition, the plaintiffmust demonstrate the existence ofa triable issue .of fact as to the elements with respect to which the defendant has met its initial burden (see Gentile v. McFarlane-Johansson, 108A.D.3d499, 969N,Y.S.2d 118; Sukhrajv.New YorkCity Health& Hasps. Corp., 106 A.D.3d 809,965 N.Y.S2d 532; Riv'ers v; Birnbaum, 102 A.D.3d26, 43,953 N,Y.S.2d 232; Swanson v. Raju, 95 A.D.3d 1105, 945 N.Y.S.2d 101). "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflipting medical expertopirtions. Such credibility issues can only be resolved by a Jury (Wetelbaum, ~upra at 758). 11 The case.at bar falls weil within the ambit of the above-cited cases. The parties.have presented expert medical opinions from exceptionally well-credentialed doctors. These opinions are completely in 7 7 of 8 [*FILED: 8] NASSAU COUNTY CLERK 11/02/2020 11:11 AM NYSCEF DOC. DOC. NO. NO. 70 70 INDEX INDEX NO. NO. 603150/2017 603150/2017 RECEIVED NYSCEF: NYSCEF: 10/29/2020 conflict with respect to both deviations from standard of care and causation, Defendants' motion for summary judgment (~fotion #1) is denied. LACK OJ<" INFORMED CONSENT Plaintiff seeks leave to arnend its complaint to include a specific cause of action H,r lack ofinfom1,~d consent Defendants assert that aHo\ving the amendment at this late stage of the proceeding (after the completion of discovery) \vould be prejudicial. This assertion is belied by the fuct that defendants~ motion addressed the issue of informed consent at length in its moving papers prior to the cross motkm being filed. The issue \Vas also addressed in &:rreat detail during discovery. The original complaint and bills ofpartkular contained allegations about lack of infonned consent, putting defendants on notice that this issue existed, albeit as a departure rather thru1 a separate cause of ,tction. The cross rnotion to amend the complaint (Motion #2) is granted. A,ny request .frw relief not specifically granted is denied. This constitutes the decision and order of the court. ENTER DA TED: October 28~ 2020 . / \ \ ENTERED Nov 02 2020 \.., ......•••'' NASSAU COUNTY COUNTY CLERK'S OFFICE 8 .......................... ···················••fl Qf, ... .&J 8....of 8............................................................................................--••"""""""""'"""'"""""""""'""""
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