Gittler v Pinsky

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Gittler v Pinsky 2021 NY Slip Op 32970(U) May 4, 2021 Supreme Court, Nassau County Docket Number: Index No. 603576/19 Judge: Denise L. Sher 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 05/17/2021 12:29 PM INDEX INDEX NO. NO. 603576/2019 603576/2019 NYSCEF DOC. DOC. NO. NO. 195 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 SHORT FORM ORDER SUPREME COURT OF THESTATE OF NEW YORK PRESENT: HON. DENISE L SHER· Acting Supreme Court Justice ANDRICE GITTLER and JEREMY GITTLER, Plaintiffs, TRIAL/IASPAllT JO NASSAU COUNTY Index No.: 603576/19 Motion Seq, No.: 02 MotionDate: 11/20/2020 -againstSTEVEN H. PINSKY, M.D., ROCKVILLE ANESTHESIA GROUP, LLP, PERRYRQBERT STEVENS, M.D., SOUNDVIEW MEDICAL GROUP PLLC, MERCYMEDICALCENTER; CATHOLIC HEALTHSYSTEM OF LONG ISLAND, INC. and NORTH SHORE UNIVERSITY HOSPITAL, Defendants. The following papers have been read on this motion: Papers Numbered Notice of Motion (Seq; No. 02), Affirmation and Exhibits Affirmation in Opposition to Motion (Seq. No. 02) and Exhibits Affirmation in Reply to Motion (Seq~ No. 02) and Exhibit 1 2 3 Upon the foregoing papers, it is ordered that the motiords decided as follows: Defendant North Shore University Hospital ("NSUH'}moves (Seq. No. 02), pursuantto CPLR § 3212, for an otder granting summary judgtnent dismissing plaintiffs' Verified Comph;Lint, with prejudice, as against it, or, i11 the alternative, moves, pwsuant toCPLR § 3212(e), for an order granting it partial swmnaryJudgment. Plaintiffs.oppose the motion (Seq. No. 02). In support ofthemotion (Seq. No. 02), counsel for defendant NSt.11:I asserts.in pertinent part, that, i'[t]his action involves care rendered to plaintiff Andrice Gittler by multipie medical -----------·-·-········---···----·--·---·--····--· 1 of 19 [*FILED: 2] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 providers and facilities during the period of January J, 2016 - January 27, 2016, alleging failure to timely diagn,ose a hipjoint infection, septic arthritis ofthe hip. The claims againstthe defendant North Shore University Hospital (NSUH) are limited to one date~ Ms. Gittler's January 3, 2016 North Shore University Hospital Emergency Department (NSUHED) presentation. Plaintiff asserts three causes of action soundingin medical malpractice, lack of informed consent, and lack ofconsortium.; .. The care provided atNSUH ED on January 3, 2016 was fully in conformance with accepted Standards of emergency medicine practice and medical care as detailed by emergency medicine expert Dr, Mark Silbertnan .... Dr. Silbertnan details the role of the emergency depattment, and explains that following evaluations by multiple medical providers at NSUHED, which included obtaining a history and review of systems from the patient, and performance ofexaminations relating to her presenting complaint of hip pain, the NS UH medical providers utilized appropriate medical decision making in rendering a diagnosis of rrtusculoskeletal. pain with instruction to continue outpatient work.;.up for her complaints of hip pain in accordance with accepted standards of emergency m.edicine care. Dr; Silberman details no care or treatment beyond whatwas prnVided was clinically indicated or required in the emergency departmentse·tting, and outpatient follow-up evaluation of her hip pain was in conformance with standards of care. Emergency medicine expert Dr. Silberman and orthopedic surgery expert Dr. Douglas Unis ... det'1il that Ms; Gittler llad an atypical presentation ofa rare condition in a middle-aged female, septic arthritis of the hip. These experts explain that while the NSUH physicians appropriately cortsidered·all potential edoiogies for.Ms. Giitter'scomplaint of hip pain;· Ms. Gittler did not have discernible risk factors and did .not have signs or symptoms associated.with septic arthritis of t}le hip at the time affair J@OUary 3, .2016 NSUH ED presentation. Given the absence of risk factors and the lack ofany signs or sylliptoms suggestive 2 2 of 19 ---·················· [*FILED: 3] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 .of infection, the medical ~xperts set fprth .that no further, other or different work-up for septic arthritis of the hip was indicated during the Jat1uary 3, 20J6 NSUH ED pi;esentation. The evidence demonstrates that following the January 3, 2016 NSUH ED visit, Ms. Gittlerwas evaluated by numerous other medical providers, each of whom performed independent assessments and formulated independent diagnoses and tre.atment recommendations, arid did not rely on the NSUH ED care. Despite these further independtmt medical ev;.tluations, which included performance of blood work and imaging studies; it was not until eleven days later that a diagnosis of septic hip joint was made. Medical experts Dr; Silbem1ari and Dr. Unis detail the unusual presentation of Ms. Gittler'.s condition; highlighting that even the orthopedic consultant 10 days later at Mercy Medical Center did not suspect septic. arthritis of the, hip as Ms. Gittler remained without the discernable risk factors,··signs or symptoms associated with this condition .. These experts set forth that any claim that NSUH departed from accepted standards of care by failing to diagnose Ms. Gittler's very unusual presentation of an uncominon, rare condition ina middle-aged woman, is without merit. Furtherntore, there are no deviations from accepted sfandatds of care that caused injury to Ms. Gittler. Emergency medicine expert Dr. Silherrilan explains that there is simply no evidence thatadditional testing atNSUH would haveresulted in a diagnosis onJanuary 3rd, as multiple follow up consultations and diagnostic imaging over the next 10 days.were unrevealing. Additionally, orthopedic expert Dr. Unis explains that(sic) diagnosis 10 days earlier would not have changed Ms. Gittler' s course, prognosis or outcome. .Dr. Unis details that the medical records demonstr~te that Mrs. Gittler had an unuslµilly low virulent, slow growing infection, present for weeks pdorto the NSt.Ti{ presentat10n .. The expert explains that Ms. Gittler would have undergone the very same procedures and treatment, and would have had ari identical outcome;. had diagnosis been made· on. January 3rd .instead -of January ------··--·---·--"····------- __________ 3 of 19 ,,,,,, ...... , ... ,... , .. [*FILED: 4] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 14th . As denmnstrated through two medical experts, the allegations asserted against North Shore University Hospital are entirely without merit .... North Shore University Hospital adhered to accepted standards of emergency medicineandmedical care during Ms. Gittler'sJanuary3, 2016 presentation, and there were no deviations from accepted standards of medical care that caused injury. Ac,lditi<:mftlly, all claims of lack of informed consent mustbe dismissed as there were no invasive proceduresperformed by the moving dc:!fendant. Fµrthermore,.as dis111issa1·or the claim on behalfofMs. Gittleds warranted, the derivative cause of action on behalf of Ms. Gittler's husband, plaintiff Jeremy Gittler, cannot stand. For these reasons, summary . .. judgment in.its entirety is warranted.'' See Defendant NSUH's Affirtnation in Support Exhibits A andB. Counsel for defendantNSUH further submits, in pertinentpart, that, "D~. Silberman affil'll1s, to a re11Sonable degree of medical e;ertainty, that NSUH ED undertook an evaluation and assessment in conformance with accepted standards ofemergency medicine and medical care, including taking a history from the patient and perfortning examinations, and coming to a reasonable and appropriate diagnosis ofmusculoskeletal pain, with instructions for continued outpatient evaluation and assessment, on January 3, 2016 .... Dr. Silberman details that (sic) emergency medicine standard of care does not mandate or require providers to rule out every possible diagnosi.s in an emergency department setting .... The expert explains that the differential diagnosis for hip p<l.ih is extremely broad and includes many etiologies including traurn,a, primary rnusculosk~letal pain (strains/spr/.llns), rheu.rnatological disease~ malignant disease, blood clots, ne1.1rolo_gi¢ai disease, and infectious processes, ~ .. While each ofthese diagnoses were considered by the. NSUH emergency department _physiciansi Dr, Silberman explains that tlie NSUH providers appropriately utiiized their medical training; experience, 4 44 of 19 [*FILED: 5] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 expertise, and judgment in coming to a diagnosis of primary musculoskeletalpain based upon the patient's history and examination pertinent positive and negative findings, in confonnance with accepted standards ofcare .... Further,as the patient was fourmonths postpartum, musculoske:letal pain from childbirth or holding and carrying a baby was a reasonable explanation for. her complaints .. ;. The expert highlights that the diagnosis: made by the NSUH EDproviders on January J, 2016 ofmusculoskeleµl pain wa.s reasonable, appropriate, and in conformance with standards o:fcare .... The experts detail that Ms. Gittler did not present to NSUH ED on January 3, 2016 with risk factors, signs or symptoms that would have (sic) suggestive ofseptic arthritis ofthe hip .. ,. The experts explain that infection, and particularly septic arthritis of the hip, was properly extremely low on the differential based mi Ms. Gittler' s lack of risk factors and the absence of any suggestive signs and symptoms .... The patient was not of advanced age, had no pre-existingjointdisease, no recent joint surgery orinjection, no skin or soft tissue infection, denied intravenous drug use, no indwelling catheters, and denied having no (sic) itninurtosuppression cortditiorts such as diabetes or cancer .... Further, MS. Gittler didnothave the cardinal signs ofseptic arthritis of the hip include (sic) fever, swelling, warmth/redness, and restricted movement in the joint on herexam.ination .... Given the absence . . .ofrisk factors and the lack of any symptoms suggestive of infection, emergency medicine: expert Dr. Silberman Sets forth that no further or other work".up or testing fodnfectiort Was clinically indicated or required .. ,. The expert details that blood work, imaging studies including x-ray, MRI, CT, and ultrasound, invasive: procedures such as arthrocente:sis ancl or ¢onsultations inc:luding with orthopediq surgl:lcy and infections disea,ses, wt::re not clinically warranted at the January 3, 2016 NSUH ED prf;.'lsentation given the la¢k of risk factors; sigps or sy.tnptoms of a hip infection;; .. Emergency Medicine expert Dr. Silberman explains that the evaluation on• 5 -----·-·-··"-"·"-·· 5 of 19 -----------------···········-··········-·· [*FILED: 6] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 January 3, 2016 revealed Ms. Gittler did not have signs, symptoms or risk factors· of a serious, emergency medical condition; rather, work-up as an outpatient was appropriate and in confonnance with accepted standards of care .... The experts explains (sil') Ms; Gittler understood these 'directions, and comm:enced (si¢) outpatient evaluation with her primary·care provider who referred het to a neurologist the very next day .... Again,. as Dr. Silberman explains. it is not within (sic) standard pf care to rule out every possible diagnosis in an emergency department setting, and in this clinical scenario, outpatient evaluation was recommended in accordance with standards of care ...• Accordingly, based upon the expert affirmation of emergency medicine expertDr. Silberman,the treatment provided to plaintiff Andrice Gittler by NSUH on January 3, 2016 -adhered and was in•.conformance with the accepted standards of medical and emergency medici11e care;" See id.. Counsel for defendant NSUH also asserts,jn pertinent part, that, "[t]he medical experts detail that while blood work and imaging of the hip during the NSUH ED presentation was not clinically indicted ot warranted, nonetheless, perfonnance of these tests would not have resulted in earlier diagnosis of septic arthritis of the righthip .... Dr. Silbenrtan details (sic) Ms. Gittler had a nonnal while blood cell count and negative blood cultures through the time of diagnosis on January 14th, despite no antibiotic therapy .... As such, performance of blood work during the NSUH EDpresentation of January3 rd , 2016 would have been unrevealing as this imaging perfonned 10 days later at Mercy was read as normal with no acute findings .... To. say that labs or imaging on January 3,. 2016 at NDUH would have led to (sf¢) earfo:r diagnosis is· conirary to the medical .records ... ; Orthopedic Surgery expert Dr. Douglas U:nis opines to a reasonable de:gtee of medical certainty that the· alleged departures of def~ndant NSUH are not casqally connected to plaintiff Aildtice ·Gittler' s claimed injuries .... Dr. Unis affirms that nothing NSUH 6. __________________ 66 of 19 ,,, ..... , ...... , ___ ,,, ____ ,,,_,_, __ ,_, __ ,_,,,,, ..... , .......... , .. __ ,,,_,_, ___ ,_,,,_,,,,,_, ___ , __ ,,,,, .. , ..... .. [*FILED: 7] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 dici or allegedly failed to do caused or contributed to Ms. Gittler' s outcome or prognosis .... Dt. Unis explains (sic) diagnosis of septic arthritis of the hip 10 days earlier would not have changed Ms. Gittler's management, treatment, outcome or prognosis .... the expert explains that Ms. Gittler had a low virulent, slow growing infection, that colonized in her right hip causing cartilage damage at. least several weeks prior to her NSUH ED presentation oil January 3., 2016 based upon the characteristics of Ms. Gittler's infectious process and the radiologic imaging and intra.operative findings,,. .. Dr. Unis affirms that Ms. Gittler would have undergone the very same procedures and treatments had the diagnosis been made on January Jr'\ as she did when it was made following presentationto Mercy oil January·13 th ..•• Further;Dr. Unis details Ms. Gitt1er's cartilage damage had already 1;,een ongoing for an extencled time prior to the NSUH present~lion, therefore diagnosis lO days eEtrlier on January 3rd would not have spared Ms. Gittler from development of osteoarthritis .... As there is a complete absence of proximate cause, summary judgment is warranted." See Defendant NSUI-Jl s Affirmation in Support :Exhibits. A-B and N-Q. . . In opposition to defendant NSUH's :motion (Seq. No. 02), counsel for plaintiffs asserts, in pertinent part, that, "[a]tthe outset, Plaintiffs go not oppose thatbranch ofDefendailts' motion seeking to dismiss the infonned consent claims. It is submitted that the Defendants' motion for summElfY judgment should be otherwise denied under the circumstances of this case·siilce: {l) The Defendants have failed to establish their prima facie entitlement to summary judgment, as the expert affirmation and other physician averments submitted in support ar~ conclusory, fail to address .the totality of the· evidence, and fail to address Plaintiffs; pertinent allegations; (2) even assuming Defendants met their initiai motion burden, Plaintiffs have ra:1sed issues of factby proff~ringexpert physidan affinrtations which, upon addressing all of the relevant evidence and facts, identify multiple departures as to NORTH SHORE UNIVERSITY 7 7 of 19 ------------------····················. [*FILED: 8] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 HOSPITAL ... that were a (sic) proximate· cause (sic) ofthe injuries· suffered by Plaintiffs; and (3) At a minimum, the conflicting expert opinions presentmaterial issues of fact that should be resolved by a jury attrial .. In short, as avowed by Plaintiffs; experts, had the Defendant[s] not deviated from standards of care; Mrs. Gittler's condition could have been properly managed, her infection would not have been remotely as<severe, no surgery would have been required, and her resulting pain and suffering would have been avoided." In support of the opposition, coun;sel Jor plaintiffs submits the expert affirmation ofira Mehlman, M.D. {''Dr. Mehlman"). See Plaintiffs' Affirmation in Opposition Exhibit A Dr. Mehlman asserts~ in pe:ttinentpart, that; "[i]t is my opinion, within a reasonable degree of medical certainty, thafthe defendant[s], North Shore University Hospital; , .. , departed from acceptable standards of medical care in the treatment of the plaintiff AND RICE GITTLER in failing to recognize the clear signs and symptoms of an infection and to, in compliance with mandatory standards of care, timely, entertain this very serious possibility in their 'differential diagnoses' and properly and appropriately evaluate and treatfor same. Furthermore, it is my opinion within a reasonable degree of medical certainty, thatthedeviations of the defendant[s], proximately caused the injuries suffered by ANDRICEGITTLER induding the need for surgery .and ·extended hospital stay, need fo:t intravenous medication; pain,. and anguish, and future probable likely sequelae. In sum, based upon the review of the records, it is my opinion that defendant[s] deviated from standards· ofcare in missing an opportunity to diagnose plaintiff as. suffering from,inter alia Staphylococcus a:ureus i11fection;. Staphylococcf4 arthritis qfthe right hip, right septic hip, and treatANDiUCE GITTLER, a,t art e!lI'ly stage when appropriate treatment would in all probability (sic) been curative with full rei;mvery and 110 risk of future complications from delayed untimely diagnosis and treatment. It is my opinion, within a 8 88 of 19 --------------··········-·····-····-···-···· [*FILED: 9] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 reasonable degree of certainty, that when.Mrs. dittlerpresented to defendant[s],shepresented with clinical signs and symptoms which required further investigation and the mandatory inclusion in the differential diagnosis of deep seated infection which required further testing; and immediate consideration and treatment.'; Seeid Dr. Mehlman further assertS, in pertinent part; that, ''[b]ased on all the evidence available, it is my opinion within a reasonable degree of medical ·certainty, that the Defendant[s] in this case negligently failed to consider the possibility ofan ongoing right hip infection in the days that led up to Mrs. Gittler' s presentatio11 to Mercy Hospital, despite the fact that her complaints were clearly in her righfhip. Based on the testimony ofMrs. Gittler, she had severe, and worsening unrelenting pain in the right hip, a deep seated joint irt the days prior to her presentation to North Shore Hospital, ... Benign rtmsculoskeletal pa.iris· generally are improving after 72 hours (3 days), 'bad' pains continue (sic) ate notrelieved by usual remedies, are getting worse, ate constant, sever, unrelenting, and lo11get than 3 days - in fact worsening over many days. If is egregious to 11ot evaluate what she was actually in fact complaining about - the right hip!... The doctors at North Shore University Hospital ED; ... failed to meet the standards ofcare and denied Mrs. Gittler the best possible outcome and denied her complete early timely diagnosis and treatment which would have decreased her righf hip bone and cartilage destruction giving her a much better outcome and ·no future potential pro blems secondary to delay in definitive treatmerttarid further cartilage and bone infection and destruction from prolonged witteated infection. ltinust also be noted thatit is Well known that treating patients with undiagnosed infections with steroids such a:s dexaniethasone and prednisone can aggravate and potentially worsen the untreate4 ip,fectioh. P~tients returning a.second time for uniinproving or g 99 of 19 [*FILED: 10] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 worsening medicaLproblems require a good thorough complete evaluation to rule out life and/or . . . limb t_hreatening problems." Dr. Mehlman also submits, in pertinent part, that, "[i]n my medical opinion from fifty years of evaluating such patients; and familiarity wlth the medical literature regarding these issues, within a reasonable degree ofmedical certainty, it is notat all rare or unusual for patients with such serious infections to present afebrile ot to present with a normal or even low white blood cell· count. Patients presenting with SIRS (systemic inflammatory response syndrome) from a bacterial infection even with sepsis often have a pµlses (sic) greater than 90 bmp, and can have high, normal or low WBCs and be afebrile or even ·have low temperatures,. wen described in the literature and from my· experience with such cases. When Mrs. Gittler presented to North Shore ED her pules (sic) was 113 bpro, which was elevated for a woman her age. The doctors at North Shore should have investigated further, such as ordering MRI imaging ofthe right hip, some basic laboratory blood tests given her symptoms and severe unrelenting right hip pain; It is also my medical opinion; within a reasonable clegree of medical certainty, that since Mrs. Gittler' s pains were present for more than three days, and in fact, worsening, and not relieved by the typical treatment of rest and ibuprofen ot anti"-inflantn1atories, the differential diagnosis of infection should have been considered - including deep seated infection in that right hip-the standard ofcare·fot such patients .... Typically, with infections in deep seated joints (such as spine, hip, shoulder) it can be difficult to determine. 'warmth, swelling, or redness', as there may be 3"'4 inches of body 'tissues' iri t}le way, which is why proper imaging is .critical. Unexplained, persi~tent, or worsening deep joirit pain, .umeleriting: and even wotseniilg, even at rest, wiiho-qt ~ known caui;;e or understood mecllani$ril ?{ould be indicative ofpossible deep seate:dj oint infection; lt mµst be investigated and a d~ffererttial diagnosis of infection or space 10 - - - - - - - - - - - - - - - ~ 1 . . : : _10 0 of 19 1_9_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ [*FILED: 11] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 occupying lesion such as a tumor musfbe considered. Direct appropriate imaging such as an . . MRI of the affected are:a must be done - in this case it is clear the right hip was repeatedly rem1).rked as the site ofpain - it is a clear deviation from standards· of care to have not had a right hip infection at the top of the differential diagnoses_, by likelihood and by acuity because such infections demand early timely diagnosis and treatment to insure best and safestoutcornes. The defendants should have ordered an NIRI of Mrs. Gittler's hip, the area that was symptomaticand the c:-reactive protein and sed rate· should have been tested along with the above other concerns. Notat all unusual, and well lmown clinically and in the medical literature, patients may present with serious infections even life-threatening~ without a fever, possibly even hypothermic, with a nonnal white blood cell count or even aJow WBC; and such la:b tests may be relatively notmal and non-:contributory or non-diagnostic, but regardless they are the standard of care when serious infectious conditionsincluding deep seated joint infections are rightfully included in the differential diagnosis as shou(dhave been when patient Gittler presented on January 3,2016, and each day afterwards. With persisting unexplained unrelenting pain in the right hip, the same pain present prior to January J rd when patient Gittler presented to North Shore ED and subsequently to Drs. Stevens and Pinsky, with the same otherwise non-contributory hist?ry and symptoms; without fever or elevated V/BC courtt; when these doctors, although repeatedly noting the chief complaint ofright hip pain, none qf them ordered imaging ofthe right hip area With imaging of either a CAT scan ot MRI (best), never ordered the CBS and Sedimentation rate and/or C reac1ive protein, which in my opinion would have led fo the tiirtely diagnosis of her right hip infection early and timely wheli She presented. The defendant[s] (sic) experts \¥Ould have. one· believe this was an unusual case but it was not, the patients (sic) complaint of right hip. pain is consistently present throughouta/lthe .encounters, even the radiologist Dr. Vidya 11 11 of 19 -------------------------··········--·-···-···············-·-·······---·-············· [*FILED: 12] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 Malhortra noted the right hip symptoms in his reading/report fotthe spine MRI, and even Dr. Stevens (January 4th) in his assessment remarked to 'consider right hip etiology,' all as I notedabove,.BUT none of these 'care-givers;·did ... and hip infections are themostacute diagnosis, the :most destructive diagnosis which should be in (sic) at the top ofthe 'differential diagnosis' for such a patient as patient Gittler, becai..lse 'time=tissue' and failure to diagnosis (sic)timely places the patient atincreased risk of even sepsis and death and certainly as noted of progressive cartilage and bone destruction if diagnosis is not made and treatment with antibiotics initiated timely. These deep seated infections occur, a:re clearly not rare, and when appropriately searched fot by 'thinking ofthem' as when the right hip. joint effusion was noted on January 13 th . when incidentally the effusion was noted on art abdominal CAT scan ... (again the wrong x tay (sic) but close enough to the right hip thatit detected the right hip effusion) which would have been clear on a CAT scan or even better an MRI ofthe hip January 3,4, or onward ifithad been performed, as it should have been - namely, the standard of care in this patient. Then it became inescapable that the diagnosis ofptobablerighthipinfection would explainwhatwas rightin front of these doctors, but they ignored ... at patient Gittler's·expense and well-being .... This case was not tate, not difficult to diagnose, itjlist needs to be appropriately logically entertained ih a patientwith persistent, unresolving right hip pain oil every visit; pain even at test .... Of important note, when. the O-reactiVe protein and sedimentation rate were finally ordered on 1/13/2016, they were respectively 14. 70 and 85 - very elevated, and both consistent wit~ deep seated infection, It is .my sfrong opinion (hey would Ii ave been likewise ele.vated Jan#fl,Y 3rd tihd the other days, 1,ad they been appr()priately done, in. such a case - the stan4ard <1/ care .... For the above stated reasons, I fi,nd within a reasonabl~ degree of medical certainty that the defendant[s], Norlh Shore University Hospital ... , departt:id. from prop~ and• 12 ---------··-·'"··•...... -............... ___________ 12 of 19 [*FILED: 13] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 accepted medical practicein [their] care and treatment of.Mrs. Gittler, and [their]deviations denied her the best outcome, (sic) prolonged pain; and almostcertainly will lead to long tetn1 sequelae because ofprolonged and worsening bone and cartilagedestruction from delays.of timely diagnosis and definitive treatment - namely, standard of care." See id. Also in support of the opposition, counsel for plaintiffs submits the expert affirmation of John Schaefer; M.D. ("Dr.•Schaefer;'). See Plaintiffs' Affinnationin Opposition Exhibit B. Dr; Schaefer asserts; in pertinent part, that, ''[i]tis my .opinion within a reasonable degree of medical certainty, that the deviations of the defendant[s] ·proximately caused the injuries suffered by ANDRICE GITTLER including the need for surgery and extended hospital stay, need for intravenous medication, pain; arid anguish, and future probable likely•sequelae. As detailed below, itis my opinion within a reasonable degree of medical certainty that the Defendant[s] in this action, departed from accepted standl:ltds of care causing Mrs. Gittler's injuries. In sum, based upon the review of the records, when Mrs. Gittler presented to the defendant[s], she presented with clinical signs and symptoms·which required further investigation and the mandatory irtclusionih ·the differential diagnosis of deep seated infection which requited further testing; and immediate consideration and treatment The defendant[s] deviated from standards· of care in missing an opportunity to diagnose plaintiff as suffering frnm,irtter alia Staphylococcus aureus, Staphylococcal arthritis of the right hip, right septic hip, and treat ANDRICE GITTLER, atan early stage when appropriate treatment would in aHprobability been curative with full recovery and no risk of future complications. from delayed liritimely diagnosis and.treatment." See id . In reply to the opposition, .co.wisel for defenqant NSUH qorttends, in pertinent part, µtat; ''[p]laintiffs' .exp~rts (sic) subrnission_s are fatally flawed and of no probadve value· as they: 13 13 of 19 ---- ----·-··-····-·--·--------------------····-. ·······················-·········-···················· [*FILED: 14] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 1) rely on facts contJ:adicted and not supported by the evidence (medical records and deposition testimony); 2) fraught with mere speculation and unsubstantiated conclusions; 3) fails (sic) to address specific assertions made by NSUH through Drs. Silbennan artd Unis on both standard of care and proximate causation; 4) overlooks (sic)critical portions of the facts; and 5) opines (sic) outside the expertS' areas of expertise on proximate causation. Furthermore, pla:i11tiffs' emergency medicine expert agrees that (sic) standard ofcare was met during Ms. Gittler' s first .medical presentation at (sic) with complaints of typical musculoskeletal hip pain!;'See Defendant NSUH' s Affirmation in Reply Exhibit R; Defendant NSUH' s Affinnation in Support Exhibits A artd B; Plaintiffs' Affinnation in Opposition Exhibit A. Counselfor defendantNSUH further asserts, in pertinent part, that, "[t]heris (sic)no conflicting 1:1xpert opinions to warrant a jury determination regarding the cause ofaction aHeging medical malpractice insofar as asserted against NSUH, [citation omitted]. Plaintiffs' expert submissions are of NO probative value as they are contrary to the evidence, overlook critical evidence, speculative, conclusory, fail to address specific assertions made by NSUH(sic)experts on both standard ofcare and proximate causation, opines (sic) outside the experts' areas of expertise .on proximate causation, and agrees (sic) standard of care was met. Jn fact, a close examination of plaintiffs' papers will reveal that the expertS never detail a single departure from accepted standards of care as to NS UH; rather, NSUB. is. Jumped into overly broad, conclusory paragraphs with the other defendants at the conclusion of the expert's opinion which is ofno probative value and 1nsufficientto create a triable issue of fact. Further, proximate .causation is iacking in this medical malpractice .case." It is weil settled that the proponentofa motion for sll1Tlll1ary judgment mµst mal<.e a prima facie showing of entitlement to judgment as a matter oflaw by providing sufficient 14 14 of 19 ------------------··························-················· [*FILED: 15] NASSAU COUNTY CLERK 05/17/2021 12:29 PM INDEX INDEX NO. NO. 603576/2019 603576/2019 NYSCEF DOC. DOC. NO. NO. 195 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 evidence to demonstrate the absence of mate_rial issues of fact. See Sillman v. Twentieth _Century~Fox Film Corp., 3-N.Y.2d 395, 165.N.Y.S.2d 498 (1957);Alvarez v, Prospect Hospital, 68 N.Y.2d 320,508 N.Y.S.2d923 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557,427 N.Y.S.2d595 (1980);-Bhattiv. Roche, 140 AD.2d 660,528 N.Y.S.2d-1020 (2dDept. 1988).-To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in adrniss,i. hie form, sufficient to warrant the court, as a matter of . Jaw, to directjudgmentin the movant's favor, See Friends ofAnimals, Inc. v. AssociatedFur Mfrs., Inc., 46 N .Y:2d l 065, 416 N. Y.S.2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation, See -CPLR § 3212 (b); Olan v. Farrell Lineslnc., 64 N.Y.2dl092,489 N,Y.S.2d 884 (1985). Ifa sufficientprimafacie showing is demonstrated, the burden then shifts to the non--moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which·necess,arily precludes the granting ofsummary . . judgment and necessitates atrial. See Zuckermanv. Cityo/New York, supra. When considering a motion for summary judgment, the function ofthe courtis not to resolve issues but rather to determine ifany such material issues offactexist. See Sillman v. Twentieth Century-Fox Film Corp., supra. Mere conclusions or unsubstantiated allegations are insuf:ficientto raise atriable issue._See Gilbert Frank Corp. v. Federallns. Co.; 70N.Y.2d966,525 N.Y.S.2d793 (1988). Furthe,r, to grant sul11tl1aryj1.1dgment, it must clearly appear 'that no material triable issue of fact is presented. The burden on the court ill, deciding thi:s type of motion is not to resolve issues of fact or de:tennine matters of credil,ilify, but merely to detertnine _whether such issues exist. See Barrv. AlhanyCounty; 50 N.Y.2d 247,428 N.Y.S.2d 665 (1980); Daliendo v. Johnson, 147 A.D.2d 312,543 }tY;S.2d 9.87 (2d Dept. 1989). It is the existence ofan issue, not 15 15 of 19 [*FILED: 16] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 its relative strength that is the critical and controlling consideration. Se_e Barrett v. Jacobs; 25 5 N.Y. 520 (1931); Cross v. ·Cross, 112 A.D.2d 62,491 N.Y.S2d353 (1 st Dept. 1985). The evidence should be construed in alight most favorable to the party moved against: See Weiss v. Garfield,21 A.D.2d 156,249N.Y.S.2d458 (3dDept.1964). "'In order to establish the liability of a physician for medical malpractice, a plaintiff must prov~ that the physician deviated or departed from accepted community standards of practice, and thatsuch departure was a proximate cause of the plaintiff's injuries.'"·Leighv; Kyle, 143 A.D.3d 779, 39N.Y,S.3d 45 (2dDept2016)quotingStukas v. Strei/er, 83AD.3d18, 918 N.Y.S.2d 176 (2d Dept. 2011). "A defendant seeking. sumrttary Judgment 'in a medical malpractice action bears the initial burden of establishing; prima facie, either that there was no departure from the applicable standard ofcare, or that any alleged departure did not proximately cause the plaintiffs injuries." Michel v. Long ls. Jewish Med Ctr., 125 A.D.3d 945; 5 N:Y.S.3d 162 {2dDept. 2015) Iv denied 26 N.Y.3d 905, 17 N.Y.S.3d 86 (2015:). See also Barrocales v. New York Methodist Hosp., 122 A.D.3d648, 996 N.Y.S.2d 155 (2d Dept. 2014);Berthenv; Bania, 121 A.D.3d 732, 994 N.Y.S.2d 359(2dDept. 2014); Trauringv. Gendal, 121 A.D.3d 1097, 995 N.Y.S2d 182 (2d Dept. 2014); Stukas vStreiter, supraat23; Gillespie v. New York Hosp; Queens, 96 A.D.3d 901, 947 N. Y. S2d .148 (2d Dept. 2012). Expert evidence is required when evaluating the "performance of functions that are an integral part of the process of rendering medical treatment ,;, to a patient" D'Elia v, MenorahHome and Hosp.fortheAged& Infirm, 51 A;D.3d 848, 859 N.Y.S.2d 224 (2d Dep~. 2008). See also ~aster v. Davenport~ 142 A.D3d 966, 37 N.Y.S.3d 323 (2d Dept. 2016) Iv to appeal cfenied 28 N. Y.3d 911, 47 N; Y. S .3 cl 22 7 (2016); Additio:rially, the 1€i of 19 _ _ _ _ _ _ _ _ _ _ _ _ _16 ::::....::._---=--=.--=----=:..__----------------------------------------------------------------------------------------- [*FILED: 17] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 conclusions.reached by the defendant and his or her expert(s) must be supported by evidence in the record. See Poter v. Adams, 104 A.D.3d 925,961 N.Y.S.2d 556 (2d Dept. 20.13). "Once a defendant physician has made such a showing, the burden shiftsto the plaintiff to demonstrate the existence of a triable issue of fact, but only asto the elements on which the defend!lllt met theprima fade burden." Gillespie v. New York Hosp. Queens, 96A.D.3d901, 947 N.Y.S.2d 148 {2dDept. 2012). ·,,Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant's departure was a substantial factor in causing the plaintiff's injury."Semel v. Guzman;84A.D.3d 1054, 924 N.Y~S.2d 414.(2d Dept. 2011) citing Johnson V; JamaicaHosp. Med. Ctr., 21 A . D.3d 881, 800 N.Y.S.2d 609 (2d Dept.2005); Goldbergv. Horowitz, 21 A.D.3d 802, 73 A.D.3d 691, 901 N;Y.S.2d95 (2d Dept. 2010). See·also Skelly-Hand v. Lizardi, 111 A.D.3d 1187; 975 N.Y.S.2d 514 (2d Dept. 2013). A plaintiffis not required to eliminate all other possible causes; See Skelly-Hand v. Lizardi, supra at 1189. '''The plaintiff's evidence may be deemed legally sufficient even if [her] expert cannot quantify the extent to which the defendant's act or omission decreased the plaintiff's chance ofa better outcome or increased [the] injmy, as long as evidence is presented fr6m which the jury may infer that th~ defendant's conduct diminished the plaintiffs chance ofa better outcome or increased [the] injury."' Alicea v. Ligouri, 54 AD .3d 784, 864 N. Y. S.2dA62 (2d Dept 2008) quoting Flaheriyv. Fromberg, 46 A.D.3d 743, 849 N,Y:S.21i 278 (2d Dept, 2007) citing Barbuto v. Winthrop llniv. Hosp.,. 3.05 A.D.2cl 623, 760 l{Y.S.2d 199 (2d Dept. 2003); .Wong v. Tang, 2 A.D.3d 840, 769 N.Y.S;2d 381 (2d Dept. 2003); Jumpv. F'acelle, 275 A.0~:Zd 345,712 17 ___________________ 17 of 19 ,, .. , .. ,_ ... , __________ [*FILED: 18] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 N'. Y. S.2d 162 (2d Dept. 2000) Iv denied 95 N. Y.2d 931, 721 N:Y. S.2d 607 (2{JO0) Iv denied 98 N.Y,2d 612, 749N.Y;S.2d 3 (2002). "'While it is true that a medical expert need not be a specialist in aparticular fielci in order to· testify regarding· accepted practices in that field ... the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable."' Behar v. Coren; 21 A.D.3 d 1045, 803 N. Y.S.2d 629 (2d Dept. 2005) Iv denied 6 N. Y.3d 705, 812 N. Y.S.2d 34 .(2006) quoting Postlethwaite v. United Health Servs; Hosps,, 5 A.D.3d 892, 773 N.Y.S.2d 480 (2d Dept 2004). ''Thus, where~ a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability ofthe opinion rendered;" Behar v. Coren, supra at 1047. "'[G]eneral allegations that ~e conclusory and unsupported by competent evidence tending to establish the essential elements ofmedical malpractice are insufficient to defeafa defendant's motion for-summary judgment."' Bendel v. Rajpal, 101 A;D.3d 662,955 N.Y.S.2d 187 (2d Dept. 2012) quoting Bezerman v. Eailine, 95 A.D.3d 1153, 945 N.Y.S.2d l(i6 (2d Dept. 2012). See also Savage v. Quinn, 91 A.D.3d 748, 937 N.Y.S.2d 265 (2d. Dept. 2012); Myers v; Ferrara,56 A.D.3d 78; 864 N.Y.S.2d 517 (2d Dept. 2008) citing Alvarez v: Prospect Hosp., supra at325; Thompsonv, Orner, 36 A.D.3d 791, 828 N.Y.S.2d 509 (2dDept.2007); DiMitri v. Monsouri, .302 A.D.2d 420, 754N.Y.S.2d 674{2dDept. 2003). Aplaintiff's expert's statement which "fail[s] to respond to relevant issues raised by the defendants' experts" does not suffice to ~stablish the existence of a material issue .of fact See Ahmed v. Pannone, 116 A.D,3 d 802, 984 N:Y$.2cl 104 (2d Dept. 2014) lv dismissed25 N.Y.3d 964, .8·N.Y.$:3d·261 (2015) rearg denied 26 N:Y.3d 944, .17 N;Y.SJd 61 (2015);. Brinkley v.. Nassau ]fealth Care Corp;, 120 A.D.3d 1287, 993 N ;y,s,2d 73 (2d Dept.2014). Furthermore, an expert''s opinion which.is conclusory 18 of 19 [*FILED: 19] NASSAU COUNTY CLERK 05/17/2021 12:29 PM NYSCEF DOC. DOC. NO. NO. 195 INDEX INDEX NO. NO. 603576/2019 603576/2019 RECEIVED NYSCEF: NYSCEF: 05/05/2021 05/05/2021 and fails to set forth his or her rationale, methodology and reasons therefore also fails to establish an issue of fact See Rivers v, Birnbaum, 102 A.D.3d 26,953 N.Y.S.2d 232{2d Dept. 2012); Dunn v. Khan, 62 A.D.3d828, 880 N.Y.S.2d 653 (2dDept..2009). Based upon the above, the Court finds the Expert Affirmations of DL Mehlman and Dr. Schaefer, offered in support ofplairttiffs' opposition, aredeficientii1 manyrespects; as outlined in defendant NSUH's reply arguments and in its expert physician's Further Affirtnation in Support and in Reply. See Defendant NSUH's Affinnation in Reply Exhibit R The.Court would further note that Dr. Mehlman',s affirmation states that he retired from the Army Medical Corps in 1992 and does not otherwise indicate he was practicing medicine in New York in 2016, or anywhere for that matter. Dr. Schaefer's affirmation states that he· is a Virginia licensed physician, and does not indicate he has ever practiced medicine in New York. Accordingly, defendant NSUH's motion (Seq. Nb. 02), pursuantto CPLR § 3212, for an order granting summaryjudgmentclismissing plaintiffs' Verified Complaint, with prejudice, is hereby GRANTED. And it is further ORDERED that defendant NSUH shall be removed from the caption ofthis action. This constitutes the Decisionand Order of this Court. ENTERED Dated: Mineola, New York May 4, 2021 May 17 2021 NASSAU COUNTY COUNTY CLERK'S OFFICE 19 _____________ ___________________ ...-. 19 of 19 _..;;;.;:_..:..;;;.....:;_:

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