Wilson v Ostad

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Wilson v Ostad 2021 NY Slip Op 32464(U) November 8, 2021 Supreme Court, New York County Docket Number: Index No. 805026/2018 Judge: Judith N. McMahon 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. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON JUDITH REEVES MCMAHON Justice -------------------X LAWRENCE WILSO , DESIREE FISH 805026/2018 INDEX NO. MOTION DATE Plaintiff, 001 MOTION SEQ. NO. - V- DECISION + ORDER ON ARIEL OSTAD, ARI L OSTAD, M.D., P.C., MOTION Defendant. ---·----+--------------------------------------X The following e-filed ocuments, listed by NYSCEF document number (Motion 001) 22, 23, 24, 25, 26, 27, 28,29, 30, 31, 32, 33, 34, 35,36, 37, 38, 39,40,41,43,44,45,46,47, 48,49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59 JUDGMENT-SUMMARY were read on this mot on to/for Upon the foregoing ocuments, it is Defendants riel Ostad, M.D. ("Dr. Ostad") and Ariel Ostad, M.D., P.C. ("Ostad P.C.") (collectively "Defen ants") move this Court for an Order granting them summary judgment pursuant to CPLR § 212 and dismissing the Complaint as against them with prejudice. ("Motion"). The C urt hereby grants Defendants' Motion for summary judgment in part and denies it in part. FACTS Plaintiffs La ence Wilson ("Mr. Wilson") and Desiree Fish ("Ms. Fish") ( collectively "Plaintiffs") comme ced this Action by filing a Summons and Complaint on January 14, 2018 for medical malprac ice, lack of informed consent and loss of services. Mr. Wilson commenced treatment with Dr. stad, a dermatologist, in 2001 when he was seventy-one years old. In 2007, Page 1 of 16 805026/2018 Wilson, La rence vs. Ostad, MD, Ariel Motion No. 001 1 of 16 [* 2] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 Dr. Ostad found mel noma on Mr. Wilson's scalp. Over the years, Dr. Ostad performed 16 Mohs Micrographic urgery ("MMS") procedures to remove skin lesions on different parts of Mr. Wilson's body. r. Ostad also performed several procedures on Mr. Wilson, including Botox injections, co metic fillers, cool sculpting, total body scans and biopsies. In October 2016, Mr. Wilson h a drug-eluting stent placed in his left anterior descending ("LAD") artery by Dr. Carl Reimers at Lenox Hill Hospital. Mr. Wilson was immediately placed on a six-month course of blood thi er medication to reduce the risk of clotting after his stent procedure. While he was initially pres ribed Plavix, Mr. Wilson developed recurrent nosebleeds and was therefore switched to Brilinta or the remaining duration of the six months. Mr. Wilson resented to Dr. Ostad on December 21, 2016 to undergo a total body check for skin cancer scree ing, during which it was documented that Mr. Wilson had noticed spot(s) on his right lateral 1 wer leg that changed in size and color. According to Dr. Ostad' s notes, the physical exam show d an ill-defined erythematous patch on Mr. Wilson's right lateral lower leg. Dr. Ostad believed t e 2 cm lesion was suspicious for a squamous cell carcinoma ("SCC") and therefore performed an excisional biopsy. The Dermatopathology Report revealed "a crater-like lesion filled with ort o- and parakeratotic cells and lined by a hyperplastic epithelium with atypical keratinocyt sin its lower portion," with "[m]any keratinocytes hav[ing] abundant eosinophilic cytopla m." The diagnosis was "probable keratoacanthoma" but the report noted that "a squamous ce 1 carcinoma cannot be excluded with certainty in these sections." Plaintiffs represent that Dr. 0 tad advised that this type of skin lesion could potentially grow rapidly and invade locally and d eply. Dr. Ostad's treatment plan was to perform MMS. Plaintiffs rep esent that after Dr. Ostad' s office informed Mr. Wilson that he had to undergo MMS and eeded to stop taking any anticoagulants before the procedure, Mr. Wilson Page 2 of 16 805026/2018 Wilson, La rence vs. Ostad, MD, Ariel Motion No. 001 2 of 16 [* 3] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 contacted his cardiol gist Dr. Oboler and his primary care physician ("PCP") Dr. Gelbard. According to Plainti s, both Dr. Oboler and Dr. Gelbard told Mr. Wilson that he could not stop taking Brilinta, he s uld not undergo MMS while taking Brilinta and that he should wait to schedule the proced e after he stopped taking this medication. According to Plaintiffs, Mr. Wilson called Dr. 0 ad and told him that he did not want to undergo the MMS based on the advice of his cardiol gist and PCP. Mr. Wilson represents that Dr. Ostad insisted that he had experience performi g MMS on patients taking anticoagulants and it would not be an issue. Dr. Ostad allegedly also old Mr. Wilson that he had to proceed with the MMS procedure because the lesion would just get bigger ifhe waited. Mr. Wilson represents that relying upon Dr. Ostad's representati n and their longstanding relationship, he decided to undergo the MMS procedure. Mr. Wilson p esented to Dr. Ostad's office to undergo the MMS procedure on January 10, 2017. Dr. Ostad estified that before having Mr. Wilson sign the consent form, he would have reviewed the ri ks associated with MMS, risks of bleeding due to Brilinta, possible alternative treatment and the need for Mr. Wilson to post-operatively elevate his leg and stay off his feet. Mr. Wilson also completed a Mohs Decision for Medical Necessity Form, which indicated that MMS as medically necessary since the lesion was larger than 2 cm in diameter on a non-facial area nd that the diagnosis was supported by the biopsy report. After Mr. Wilson was locally anestheti ed, Dr. Ostad excised the tissue with approximately three-to-fourmillimeter margins d cauterized the area to ensure there was no bleeding. Mr. Wilson was bandaged and told t stay in the waiting room while Dr. Ostad examined the tumor margins to ensure the margins ere clear. After confirming that the margins were clear, Dr. Ostad closed the surgical wound ith sutures. According to Dr. Ostad' s office notes, Mr. Wilson was 805026/2018 Wilson, La rence vs. Ostad, MD, Ariel Motion No. 001 Page 3 of 16 3 of 16 [* 4] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 instructed to elevate is leg and not walk around. Mr. Wilson was discharged in stable condition, made no c mplaints before leaving the office and took a cab home. Mr. Wilson t stified that he called Dr. Ostad's office after he saw blood "pouring down" his right leg and was told to come back to the office. Mr. Wilson presented to Dr. Ostad's office the same day at 2: 10 M with bruising, swelling and bleeding at the surgical site extending down to the ankle. Accord ng to Dr. Ostad's notes, "patient states he went home after his surgery, walked his dog and t en went to lay down in bed. He reports feeling pain and active bleeding for 1 hour before returni g to the office." The Court notes that Plaintiffs contest Dr. Ostad's notes and state that Mr. w·1son "specifically denied walking his dog in the interim." Mr. Wilson used a washcloth as a tou iquet to slow the bleeding. After Dr. Ostad removed the pressure bandage, he noted there was a ematoma, active bleeding and a 3.5-inch laceration adjacent to the surgical site. Mr. Wilson los approximately a quart of blood. Dr. Ostad us d sterile gauze to apply manual pressure for 20 minutes and Mr. Wilson was given Ativan and O codone to decrease his blood pressure and to help relax him. Dr. Ostad removed the sutures "thout issue and evacuated the hematoma. Dr. Ostad cauterized the bleeders and placed ew sutures to repair the surgical defect and laceration. Dr. Ostad's notes reflect that Mr. Wils n reported hot sweats, shakiness and dizziness. A pressure bandage with an Ace wrap was appli and he was placed in Trendelenburg position with an ice pack placed to his chest. Mr. Wilso was discharged sixty minutes later in stable condition with instructions to keep his elevated an not walk on his foot. According to his notes, Dr. Ostad spoke with Mr. Wilson's cardiologis and internist, who both strongly advised against stopping Brilinta since Mr. Wilson needed to co plete his six-month course of the medication. Page4 of 16 805026/2018 Wilson, La rence vs. Ostad, MD, Ariel Motion No. 001 4 of 16 [* 5] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 On January 1 , 2017, Nurse Jennifer Schroeder called Mr. Wilson at 9:12 a.m., during which time Mr. Wils n noted he had mild pain (which improved from the previous day), denied bleeding at the site a d stated that he began taking the prescribed antibiotic the night before. Mr. Wilson also said that he regretted having the MMS procedure and "will take the advise (sic) of his cardiologist and r frain from any additional surgical procedures until he is able to hold Birlinta (sic)." Less an one hour later, Mr. Wilson presented to Dr. Ostad's office at 10:00 a.m. with complaints of bleeding. Mr. Wilson had a blister on his right posterior lower leg with bubble-like lesions, well as a dark purple patch. According to Plaintiffs, Mr. Wilson presented "with a so and shoe soaked with serosanguinous drainage from the surgical site." Mr. Wilson underwe t an incision and drainage of the bullae before being discharged in stable condition with instru tions to remain off his feet for 24 hours. Mr. Wilson r turned to Dr. Ostad's office to have his bandage changed on January 12, 2017. Mr. Wilson co plained of shooting pain on the incision area and pain after being seated for a long period of ti e. Upon physical examination, it was noted that the right lateral ankle had erythematous flu ct-filled nodules and erythema and the right lateral lower-leg had sutured wound with erythem and bruising. Incision and drainage of the seven bullae located on Mr. Wilson's right lateral ankle were performed. The surgical site was cleaned, the bandage was changed and an Ace ap was placed. Dr. Ostad recommended Mr. Wilson take Tylenol and Ativan while continu ng to rest with his leg elevated. Dr. Ostad told Mr. Wilson he could go to his home on Long Isl d, but that he had to take it easy and follow-up in one day. According to Dr. Ostad's testimon , there was no evidence of infection. Plaintiffs repr sent that Mr. Wilson presented again on January 13, 2017 with several complaints, includin bleeding, aching, blistering, oozing, an open wound, pain when walking, 805026/2018 Wilson, Law ence vs. Ostad, MD, Ariel Motion No. 001 Page 5 of 16 5 of 16 [* 6] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 tenderness and ulcer tion. According to Dr. Ostad's records, Dr. Ostad advised Mr. Wilson that the site was healing ell and that it was okay to shower, get the area wet and resume general walking. Since there was no evidence of bleeding, the ace wrap was no longer necessary and there were no signs symptoms of infection at the visit. Mr. Wilson was told to follow up in two days. Mr. Wilso subsequently went to his house on Long Island for the weekend, at which time standing and w lking became increasingly painful and the surgical wound was starting to get red. According to deposition testimony, the Plaintiffs contacted Dr. Ostad on January 14th and 151\ at which time D . Ostad told them to keep the leg elevated, change the dressing using gloves, apply Bacitr in and follow-up on Monday. On January 16, 2017, Mr. Wilson was scheduled for a Dop ler of his right leg to rule out a DVT at East River Medical Imaging, which never took place. M . Wilson contacted his PCP, who advised him to go to the Lenox Hill Hospital's Emergenc Department ("ED"). Mr. Wilson presented to Dr. Ostad's office on January 16th prior to oing to the ED with complaints of shooting pain that increased in the last two days, difficulty utting weight on his right leg due to pain, increasing redness and blisters. Mr. Wilson represen ed that he completed his five-day course of antibiotics. Physical examination showed at Mr. Wilson had indurated erythematous scar with surrounding erythema extending own his ankle and dorsal foot. Mr. Wilson had a bulla on his right lateral ankle for which Dr. stad performed incision and drainage, with less than 1 mL serous fluid drained. Dr. Ostad's impression was cellulitis secondary to MMS. After obtaining cultures to rule out infection, Dr Ostad noted that Mr. Wilson was going to the ED to see a vascular surgeon and advised im to see an infectious disease specialist to rule out an infection and for IV antibiotic therapy. 805026/2018 Wilson, Law ence vs. Ostad, MD, Ariel Motion No. 001 Page 6 of 16 6 of 16 [* 7] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 Mr. Wilson p esented to Lenox Hill Hospital's ED with complaints of significant bleeding from the s gical site after the MMS, increasing redness and pain. The ED physicians believed Mr. Wilson had tissue injury secondary to pressure dressing. Dr. Gelbard documented that she and Mr. Wil on' s cardiologist advised Mr. Wilson to wait until six months after his stent placement so his anti oagulation could be held. Dr. Gelbard's assessment included right lower extremity hematoma pressure necrosis and cellulitis. Dr. Gelbard obtained two blood cultures and placed Mr. Wils non empiric IV antibiotics. On January 17th, Dr. Gelbard documented that Mr. Wilson spiked a ever overnight and experienced chills with shaking. Mr. Wilson's antibiotics were ch ged and Infectious Disease was consulted. Upon physical examination, it was noted that Mr. ilson's right lower extremity was warm, had blackened areas of necrotic skin and was tender. On January 1 , 2017, Mr. Wilson was evaluated by the Infection Disease specialist, who made an assessment f probable beta hemolytic streptococcal cellulitis given the presence of bullae and abrupt on et and recommenced continuing antibiotic therapy paired with local wound care. Mr. Wilson w discharged home on January 20, 2017 to continue IV antibiotics for six days. Mr. Wilson w s also told to follow-up as an outpatient with his vascular surgeon and Infectious Diseases ecialist. During his deposition, Mr. Wilson testified that he still suffers from right leg weakn ss/instability that impacts his gait, causes him to fall and restricts his ability to walk and tr vel. Mr. Wilson further testified that such injury required physical therapy and assistive devices Dr. Ostad tes ified that while he knew Mr. Wilson was taking Brilanta on the day he performed the MMS, he was not aware that Mr. Wilson had switched from another blood thinner B05026/201B Wilson, Law ence vs. Ostad, MD, Ariel Motion No. 001 Page 7 of 16 7 of 16 [* 8] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 to Brilinta due to epi odes of excessive bleeding. When asked how he became aware that Mr. Wilson was on Brili ta prior to performing the MMS, Dr. Ostad testified that I certainly kn w when it came time to be doing the surgery because we had a discussion about it prior o starting the surgery that day. I don't know if we had a phone conversation. I don't remember. I want to say maybe. I have a feeling he called me about it to di cuss his concerned about Brilinta. I certainly know we had a conversation at the time of the surgery. And my answer to him was, it absolutely no sense for him to stop his Brili ta, given the stent that was placed in his LAD. LAD, stands for Long Ascending ery. It's a main coronary artery, otherwise known as the widow maker and it that gets bl eked, there is a high change of death and that's where he had his stent placed, and t at' s why he was on Brilinta, to make sure that stent does not close. And for me, it was ab olutely not an option to stop the Brilinta, knowing there is a risk that that stent can clos . He would have to be off his Brilinta for a few days before, not to initiate it for a coupl of days after. And that window can potentially cause death. And to me, being on Bril nta, knowing full well that it increases his risk of bleeding, was a better option for hi to go off Brilinta." Dr. Ostad Brilinta for at least her testified that since he believed Mr. Wilson was going to be on the other five to six months, "it did not make sense to postpone surgery for hs, knowing the potential nature of this lesion." According to Dr. Ostad, the Keratoacanthom type of SCC could have invaded further and deeper into the muscle or "go elsewhere", which w uld have subjected Mr. Wilson to a "much, much more complicated surgery." Dr. Ostad estified that he never attempted to contact Mr. Wilson's PCP or cardiologist prior to performing t e MMS on him to discuss the issue, explaining I'm his surge n and I didn' t need to contact them for the surgery. I knew he was on Brilinta, I kn what Brilinta is and I knew what he was going to do. I knew the nature of his disease and I knew the nature of his medical history, so I felt that - I felt that I could have - hat it was okay to proceed to do his procedure, knowing the risk of bleeding." According to r. Ostad, the standard of care would require him to communicate with the PCP or cardiologist" nly if you need to stop the medication", which would not be possible in Mr. Wilson's case si ce Mr. Wilson would have to stay on the Brilinta "to save his life. 805026/2018 Wilson, Law ence vs. Ostad, MD, Ariel Motion No. 001 Page 8 of 16 8 of 16 [* 9] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 According to laintiffs' Verified Bill of Particulars, Dr. Ostad failed to appreciate the significance of the ri ks of performing surgery on Mr. Wilson while he was taking Brilinta, caused Mr. Wilson t have excessive bleeding, failed to properly close the incision and failed to consult with Mr. Wil on's internist and/or cardiologist prior to performing MMS. Plaintiffs further allege that Dr Ostad failed to timely diagnose and treat Mr. Wilson's infection, appreciate Mr. Wilso 's elevated post-operative blood pressure, take the necessary steps to admit Mr. Wilson to the ho pital and properly address his post-operative complaint. Defendants' Motion for Summary Judgment In support of heir motion for summary judgment, Defendants submit the affidavit of Jeffrey Ellis, M.D. (" r. Ellis"), who states that the MMS performed on Mr. Wilson's lower right leg was done in accordance with good and accepted surgical practice. Dr. Ellis opines that Brilinta is not a cont diction to MMS and that there was no reason to postpone the surgery. According to Dr. Elli , Keratoacanthoma has "both metastatic potential and the potential to grow rapidly if untreated" d treating it as soon as possible "to keep the wound as small as possible" was appropriate. Dr. Ellis further opines that "there was no reason for Dr. Ostad to contact the plaintiffs primary c e physician or his cardiologist, prior to the Mohs procedure. Dr. Ostad was aware the patient wa on Brilinta and was aware of the risks of bleeding." Furthermore, Dr. Ellis states, Dr. Ostad "wa under no obligation" to contact Mr. Wilson's PCP or cardiologist prior to the procedure. Dr. E lis explains that Dr. Ostad took every precaution to make sure the wound was not bleeding or tively oozing during the procedure. Dr. Ellis states that Dr. Ostad also properly closed the Dr. Ellis mai tains that while Dr. Ostad properly and emphatically told Mr. Wilson to go home and elevate his leg after the procedure, the notes reflect Mr. Wilson went home and walked 805026/2018 Wilson, Law ence vs. Ostad, MD, Ariel Motion No. 001 Page 9 of 16 9 of 16 [* 10] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 his dog after the proc <lure. Dr. Ellis opines that "to a reasonable degree of medical certainty that the bleeding afte the Mohs surgery was caused by failure of Mr. Wilson to follow Dr. Ostad's orders" and t at Mr. Wilson was negligent by walking his dog shortly after the surgery. Dr. Ellis states that en Mr. Wilson returned to Dr. Ostad's office with complaints of bleeding on the same day as t e surgery, Dr. Ostad appropriately managed Mr. Wilson's bleeding at the surgical site by remo ing the bandage, applying manual pressure, performing an evacuation of the hematoma and re suturing the wound. Dr. Ellis opines that Mr. Wilson was also properly monitored before lea ing Dr. Ostad's office on that day. Dr. Ellis expl ·us that Dr. Ostad properly performed an incision and drainage on January 11th and January 12th during which time there was no reason for Dr. Ostad to change the patient's managemen or send him to the emergency room. According to Dr. Ellis, there was also no indication for Dr. Ostad to be concerned abut Mr. Wilson's condition or an indication he should send Mr. Wil on to the emergency room during the January 13th office visit or telephone calls with Plaintiffs o January 14th and 15th. Dr. Ellis further opines that Dr. Ostad appropriately directe Mr. Wilson to go to the emergency room on January 16th . Dr. Ellis maintains that Dr. Os ad did not depart from the accepted standards of care in treating Mr. Wilson or that any ac or omission on his part was a substantial factor in causing the injuries alleged. Dr. Ellis ex lains that based upon Dr. Ostad's deposition testimony and the forms signed by Mr. Wilso prior to the procedure, Dr. Ostad provided him with the appropriate information regardin potential risks of surgery and obtained valid consent from Mr. Wilson prior to commencing he procedure. 805026/2018 Wilson, Law ence vs. Ostad, MD, Ariel Motion No. 001 Page 10 of 16 10 of 16 [* 11] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 Plaintiffs' Opposition to Defendants' Motion In opposition o Defendants' motion, Plaintiffs submit a redacted affidavit by a medical doctor, who is board ertified in Internal Medicine with a sub-certification in Infectious Disease ("Plaintiffs' Expert") Plaintiffs' Expert explains that Keratoacanthoma is a "relatively common low-grade cutaneous umor" that has a rapid initial growth of up to six to eight weeks, followed by a variable period f lesion stability (lasting several weeks to several months) and then, in most cases, spontane us resolution (a process that takes four to six weeks or longer)." In most cases, such tumors o ly cause "minimal skin destruction" and rarely "may behave more etastasize." According to Plaintiffs' Expert, SCC is the second most cancer and is slow-growing and rarely metastasizes. Discussing the various factors that a e used to determine the treatment option for Keratoacanthoma and SCC, Plaintiffs' Expert sta s that the 2017 standard of care required a period of close monitoring in the case of a stent pa ient with a new Keratoacanthoma ("KA") or SCC who requires uninterrupted blood inners in the short term. While the biopsy could not exclude SCC, "Mr. Wilson's lesion, whe her it was a KA or SCC, did not require urgent treatment given that it was a new lesion with ave Plaintiffs' Expert f1 low risk of aggressive local growth or metastasis if left untreated." her explains that Dr. Ostad departed from the standard of care in failing to offer Mr. Wilson the ltemative of waiting to do the MMS procedure and monitoring the lesion ert maintains that the standard of care required Dr. Ostad to consult with Mr. Wilson's cardiol gist and/or PCP to discuss the nature of the surgical treatment, whether the anticoagulation medi ation needed to be continued for the procedure, how long Mr. Wilson would be required to take Brilinta and the risk for excessive bleeding considering his history of 805026/2018 Wilson, Law ence vs. Ostad, MD, Ariel Motion No. 001 Page 11 of 16 11 of 16 [* 12] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 excessive nosebleeds while taking blood thinners. According to Plaintiffs' Expert, the standard of care requires such coordination since the PCP and cardiologist are best positioned to calculate the risk of discontinu ng the medication and/or proceeding with the surgical procedure without stopping it. Plaintiff: ' Expert further explains that had Dr. Ostad contacted the PCP or cardiologist prior to t e procedure, he would have been made aware that Mr. Wilson would be stop taking the Brili a in three months and had a history of excessive bleeding while on Plavix in addition to chroni kidney disease. Plaintiffs' Expert maintains that Dr. Ostad's failure to contact Mr. Wilson's doctors, particularly upon learning of their opinion that Mr. Wilson should not proceed with the MS while he was on Brilinta, constituted a departure from the standard of care. While Plaintiff: ' Expert shares the opinion of Dr. Ellis in that Mr. Wilson could not discontinue the Brili ta for the six-month period, he states that Mr. Wilson's risk of excessive bleeding "clearly out eighed the benefits of proceeding with an immediate MMS in January 2017 to treat this ski lesion, whether that lesion was a KA or a SCC" and Dr. Ostad departed from the standard of are in deciding to go forward with the MMS instead of observing the lesion for the last thr e months of the Brilinta course of treatment. Regarding M . Wilson's post-operative treatment, Plaintiffs' Expert opines that Dr. Ostad and his staff departe from the standard off care by improperly applying compression bandages and Ace wrap to Mr. Wilson's right lower leg and caused soft tissue pressure damage. Plaintiffs' Expert further explai s that the standard of care required Dr. Ostad to refer Mr. Wilson to the ED or wound specialist r treatment by January 13th at the latest based upon his symptoms. Plaintiffs' Expert ma ntains that Dr. Ostad's failure to refer Mr. Wilson to an ED or wound specialist after learni g about the progression of his symptoms on January 14th and 15th constituted a departu e from the standard of care. Plaintiffs' Expert opines that Dr. Ostad's 805026/2018 Wilson, Law ence vs. Ostad, MD, Ariel Motion No. 001 Page 12 of 16 12 of 16 [* 13] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 departures from the s andard of care were also significant contributing factors in causing Mr. Wilson to suffer pers stent right leg pain, scarring, weakness/instability, persistent right ankle discomfort and relate limitations on his activities. Regarding Dr. Ellis' assertion that Mr. Wilson contributed t his injuries by walking his dog after the procedure, Plaintiffs' Expert points to Mr. Wilson s testimony that he denied walking his dog between the first and second presentation to Dr. 0 tad's office on January 10, 2017. DISCUSSION Pursuant to C LR §3212(b), a motion for summary judgment "shall be granted if, upon all the papers and pr of submitted, the cause of action or defense shall be established sufficiently to warrant the Court s a matter of law in directing Judgment in favor of any party." CPLR §3212(b). A party se king summary judgment must show that there are not material issues of fact that are in disput and that it is entitled to judgment as a matter of law. See DallasStephenson v. Waism n, 39 AD3d 303,306 [1st Dept., 2007]. Once a movant makes such a showing, "the burde shifts to the party opposing the motion to produce evidentiary proof in admissible form suffi ient to establish the existence of a material issue of fact that precludes summary judgment a d requires a trial. Id. Standar for Summary Judgment in Medical Malpractice Actions "A defendant ·n a medical malpractice action establishes prima facie entitlement to summary judgment b showing that in treating the plaintiff, he or she did not depart from good and accepted medical practice, or that any such departure was not a proximate cause of the plaintiffs alleged inj ies." Anyie B. v. Bronx Lebanon Hosp. , 128 AD3d 1, 3 [1st Dept 2015]. (See Costa v. Colum ia Presbyt. Med. Ctr., 105 AD3d 525, 525 [1st Dept 2013]). "Once a defendant has establi hed prima facie entitlement to summary judgment, the burden shifts to 805026/2018 Wilson, Law nee vs. Ostad, MD, Ariel Motion No. 001 Page 13 of 16 13 of 16 [* 14] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 plaintiff to ' rebut the prima facie showing via medical evidence attesting that the defendant departed from accept d medical practice and that such departure was a proximate cause of the injuries alleged."' D casse v. New York City Health and Hasps. Corp., 148 AD3d 434,435 [1st Dept 2017] (internal itations omitted). "The opinion of a qualified expert that a plaintiffs injuries were caused y a deviation from relevant industry standards would preclude a grant of summary judgment i favor of the defendants." Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544 [2002]. "To defeat s ary judgment, the expert's opinion "must demonstrate 'the requisite nexus between them practice allegedly committed' and the harm suffered." Anyie B. v. Bronx Lebanon Hosp., 128 D3d I, 3 [1st Dept 2015] (internal citations omitted). "General allegations of medical malpracti e, merely conclusory and unsupported by competent evidence tending to establish the essentia elements of medical malpractice, are insufficient to defeat defendant physician's summary · udgment motion." Alvarez v. Prospect Hosp., 68 NY2d 320, 325 [1986]. (See Otero v. Faierm n, 128 AD3d 499,500 [1st Dept 2015]. See generally Cruz v. New York City Health and Hos s. Corp., 188 AD3d 592, 593 [I st Dept 2020]; Henry v. Duncan, 169 AD3d 421 [1st Dept 2019]). "In order not to be considered speculative or conclusory, expert opinions in opposition should ddress specific assertions made by the movant's experts, setting forth an explanation of the re saning and relying on ' specifically cited evidence in the record."' Lowe v. Japal, 170 AD3d 701 , 703 [2d Dept 2019]. See Frye v. Montefiore Med Ctr. , 70 AD3d 15, 24 [1 st Dept 2009]. Here, the Co rt finds that Defendants met their prima facie burden and showed that they did not depart from t e standard of care or proximately cause Mr. Wilson's injuries. In his affidavit, Dr. Ellis de ails his opinion as to why Dr. Ostad did not depart from the standard of 805026/2018 Wilson, Law nee vs. Ostad, MD, Ariel Page 14 of 16 Motion No. 001 14 of 16 [* 15] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 care and explains th need to treat Mr. Wilson's lesion as soon as possible due to the metastatic potential of untreate Keratoacanthoma. Dr. Ellis also sufficiently opines that the Dr. Ostad properly performed e MMS procedure, took the proper precautions and properly closed the wound at the end of he surgery. Dr. Ellis explains his Dr. Ostad obtained proper informed consent and that he as not obligated to contact Mr. Wilson's PCP or cardiologist prior to the procedure. Dr. Ellis ufficiently proffers his opinion that Mr. Wilson's post-operative bleeding was caused by Mr. ilson's failure to follow Dr. Ostad's orders by walking his dog after the surgery. With respe t to Dr. Ostad's post-operative treatment of Mr. Wilson, Dr. Ellis details how there was no in ication for Dr. Ostad to send Mr. Wilson to the ED prior to January 16th • However, the Court also finds that Plaintiffs have sufficiently rebutted this prima facie showing via medical evidence demonstrating that Defendants departed from accepted medical practice and that sud departure was a proximate cause of Mr. Wilson's alleged injuries. Based upon the affidavit of laintiffs' Expert, the Court finds that a material issue of fact exists as to whether Dr. Ostad d paited from the standard of care in failing to contact Mr. Wilson's PCP and cardiologist to discu s how long Mr. Wilson would be required to take Brilinta, the nature of the surgical treatment an his medical history. The Court finds that there is an issue of fact particularly since Mr Wilson told Dr. Ostad that his cardiologist and PCP recommended he wait to undergo the MMS until he was off the Brilinta. Plaintiffs' Expert also sufficiently details how Dr. Ostad should ha held off performing the MMS until Mr. Wilson was off the Brilinta since the lesion "whether i was KA or SCC, did not require urgent treatment given that it was a new lesion with a very Io work of aggressive local growth or metastasis ifleft untreated." An issue of fact also exists as o whether Dr. Ostad departed from the standard of care in his postoperative treatment o Mr. Wilson, including his placement of compression bandages on Mr. 805026/2018 Wilson, Law ence vs. Ostad, MD, Ariel Motion No. 001 Page 15 of 16 15 of 16 [* 16] INDEX NO. 805026/2018 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/09/2021 Wilson's leg and his failure to to recommend Mr. Wilson go to the ED prior to January 16th • The Court notes that Plai tiffs' Expert failed to address the issue of informed consent and therefore the cause of action fi r lack of informed consent must be dismissed. Therefore, e ept as to the cause of action for lack of informed consent, the Court hereby denies Defendants' otion for summary judgment dismissal of the Complaint as alleged against them. Accordingly, it is hereby ORDERED hat Defendants' motion to dismiss Plaintiffs' cause of action for lack of informed co ent is hereby granted; it is further at the remainder of Defendants' motion for summary judgment is hereby denied; it is at the Clerk of the Court shall enter the Judgment accordingly; it is further hat any and all other requests for relief are hereby denied; and it is at the next Microsoft Teams Court Conference is scheduled for Novembe 30, 2021 at 11 A.M. 11/8/2021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED • NON-FINAL D DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 805026/2018 Wilson, La rence vs. Ostad, MD, Ariel Motion No. 001 • • OTHER REFERENCE Page 16 of 16 16 of 16

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