Delia v Wieder

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Delia v Wieder 2021 NY Slip Op 32989(U) February 11, 2021 Supreme Court, Nassau County Docket Number: Index No. 617091/18 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 02/16/2021 11:34 AM NYSCEF DOC. NO. 214 DOC. NO. INDEX 617091/2018 NO. 617091/2018 INDEX NO. RECEIVED NYSCEF: NYSCEF: 02/16/2021 S.HOR'l'. FORM ORDER -SUPREME COURT OF TfJE STATE OF .NEW YORK PRESENT: HON. DENISE L. SHER ActingSupreme Court Justice TRIAL/IAS PART 30 NASSAU COUNTY MICHAEL DELIA and ·PAULA DELiA, IndexNo;: 617091/18 Pl'1,intiffsJ . Motion .Seq. No.:- 94 Motion Date: 0'9/08/20i0 -against~ ALA~J"wtEOER. M:D.._;-MERCY . MEDICAL CENTER, J. SHUTLER, M.D. JESSICA AMBROSE, .·p_,A., LUKAS . and ANTHONY BRUNO1 M,D.~. •' . .. Defendants. The following papers have been read on this motion: Papers Numbered· 1 Notice of Motion (Seq. No. 04); Affirmation and Exhibits Affirmation in Opposition to Motion (Seq. No. 04) and Exhibit and Affidavits· Affirmation in.Reply to·.·Motion (Seq. No. 04) · · 2 3. Upon tl.1e foregoiµg papers, ·it is. ordered that the motion· is decided as follows: Oefendfl.IltAlan. Wieder, ·M.D. (''Dr. Wieder") moves, (Seq. No. 04), pursuant to CPLR f 32{2·, for an ord,er gr®ti11g summary judgment disniissing plaintiffs' Verified Complaint ru1 agains(him. Plaintiffs oppose the motion (Seq. 1'Jo. 04}. in support of defendant Dr. Wiedet's motion (Seq', No. 04), his counsel asserts, in pertinent part, that; .!\(i]11support of the pres~nt.application, the moving de;fend~t, DR. WIEDER, submits the expert affirmation of internal medical expert, CharlesL. Bard¢S, 1v!;D.... and infectious disease: .expert, Dial Hewlett, M:D .... Dr. Bardes':s and Dr. Hewlett's aftinnations, fo addition tb the niedicai.rec.ords··and depositions taken in-this ca~;e a.swell.as the 1 of 19 ... ······-·········-·· · · - · · · - · - · · · · · - - - - - - - - - - - - [*FILED: 2] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 expert affidavits submitted in support of another motion for summaiy judgment, all submitted in whole or in part to this affamation, establish that defendant; DR. WIEDER, is entitled to jµdgment as a matter of law because the treatment and care rendered to plaintiff, MICHAEL DELIA (hereinafter, the 'plaintiff\ was within good and accepted standards of care atall times alleged in this lawsuit, which is July 7, 2016. Briefly, this matter involves an unfortunate case of the plaintiff developing Fournier's Gangrene; a markedly rare condition, characterized by its rapid advancement within hours. While it is well-apparent the plaintiff did not have F oumiet' s upon his presentation to the moving defendant, the plaintiffalleges·DR. WIEDER improperly treated him when he referred the plaintiff to a specialist oh an emergent basis. The following will demonstrate, and as supported by expert testirnony, DR. WIEDER propedy treated the plaintiff on the date alleged to be at issue by plaintiff, July 7, 2016, the plaintiff did not have Foumier's when he saw DR. WIEDER and there was simply nothingDR. WIEDER did or did not do that caused the plaintiffs all~ged injuries.'' See DefendantDr. Wieder's Affirmation in Support of :Motion(Seq.. No. 04) Exhibits A andB. Counsel for defendant Dr. Wieder submits; in pertineritpart, that, ''[t]his matter concerns itself with a currently 63 year old man who had a history of prostate cancer which required a radicalsuprapubic prostatectomyin June 2000, performed by Dr. KatzatNew York Presbyterian Hospital. Ever since that surgery, the plaintiff suffered from stress and urge urinary incontinence, requiring Spads per day. The plaintiff also had occasional urinary tract infections. Furthermore, he suffers from a longstanding history of high blood pressure; obesity, intermittent· flank pain, t.ertal colic, kidney stones and depression; Toe plaintiff has been seeih~ a primary care physician, Pr. Martin Bo lie,• since· 2003 but testified (sic) he wanted to switch due to what .he th.ought was 'insufficient care~ from Dr. Bolic and started treating at Arsenic Medical Services with 2 - - - -. ··-··-·--··• .......... ____________________________ ···-··------··----2 of 19 ... [*FILED: 3] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 Dr. Wieder - whom he saw for the first time in Apdl,2015 .... All of the plaintiffs visits with Dr. Wieder before August, 2015 dealt with complaints of bilateral foot numbness and tingling .... The plaintiff visited Dr. Wieder on August 1O; 2015 with complaints of bladder pressure and urinary urgency .... There was no burning or blood; ... Dr. Wieder ordered a urinalysis culture which revealed a urinary tract infection withE Coli .... Dr. Wieder prescribed Cipro at250 mg a day, two times a day for 7 days, ... This treatment cleared up the infection as the plaintiffs subsequentvisits did not include any continued urinary complaints .... This treatment is not an isslie in this lawsuit as per the Bills ofParticulars as the only date of negligence alleged against DR. WIEDER by plaintiff is the office visit ofJuly.7,2016 .. .. About? months later on March 2, 2016 the plaintiff visited urologist, Dr. Jeff Schiff, with complaints of right flank pain .... The plaintiff had previously seen Dr. SchiffatWinthrop Urology in 2014 for right flank pain and for treatment ofhis urinary incontinence .. ,. Dr. Schiff diagnosed the plaintiff with kidney stones and renal colic .. ;. The plaintiff visited urologist, Dr. Anthony Bri.mo, 011 April 28, 2016, with complaints of right side back and flank pain .... Dr. Bruno checked for lower urinary tract symptoms but the plaintiffhad no fever or chills, only flank pain .... He had no testicular masses, penile discharge or gross· hematuria. Dr. Bruno ordered a. CT scan, KUB and urinalysis, all of which were unremarkable, ... In May, 2d 16 the plaintiff was also treating with physical medicine and rehabilitation physician Dr. Sam Yee for his right sided stabbing back pain which radiated into his feet .... Dr. Wieder testified as to having reviewed Dr. Yee's records .... Inthatregard, Dr. Wieder was aware that Dr. Yee ordered an EMG test and subsequently diagnosed the plaintiff with netiropathy in his legs. The plaintiff preseflted to Dt Wieder on Jw1e 3 0, 2016 with complaints ofright leg pa1n which involved his.tight bttttock and groin doWJ1 his leg .... Additionally; the plaintiff gave a hi~toty of having dysuria and urgency (but not frequency) for 3 of 19 s.••································--------------------------······················-·-·········-·······························-···························· ..................................... [*FILED: 4] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 one week but noted this resolved on its own days prior to the office visit .... As stated eatliet, this visit is not at issue in this lawsuit.Dr. Wieder diagnosed the plaintiff with sciatica and had stlspicions concerning a possible urinary tractinfection, but noted the plaintiff did not exhibit the requisite symptomology for same ... ; Dr. Wieder prescribed a Medtol dose pack for the plaintiff's back pain and inflammation .... Dr. Wieder also prescribed Cipro 250mgs BID for seven days for a possible Urinary tract infection, but instructed the plaintiff to wait to take. the antibiotic until either the symptoms returned or the culture came back positive for a UTiand he contacted the plafotiff regarding the results .... The plaintiff first testified (sic) he was never infonned (sic) he had to wait t() take the Cipro until he experienced pain when urinating, Instead, he testified that he began taking it the d11y hepicked·itup .... However,. Dr. Bruno's chart reveals the plaintiff only took three (3) doses of Cipro prior to July ih .... Dr. Wieder received the urine culture• results on July 3rd and found they showed some bacterial growth. but not enough to be considered positive for a UTI. , .. Thus, Di'. Wieder did not call the plaintiff because there was no active Urinary tractinfection, ... Rather, Dr. Wieder felt, based on the objective testing and lack of urinary complaints atthe June 30,.2016 visit, the plaintiff had a possible past urinary tract infectioi1 that was in the process of clearing up on its o\vn and that explained the urine test. results. The plaintiff also never·contacted him with any new complaints. This was a proper diagnosis by· Dr. Wieder and it was ,a proper decision to not prescribe antibiotics for this as it was not a UTI based on the urine culture results as there were not enough colony forming to make tlle diagnosis .... Regardless, plaintiff is.not making any allegations against Dr. Wieder·for this visi_t, On July 5, the Inwood Fite Department Ambulance brought the plaintiff to Mercy Medical Center ..... Once at Mercy, he con1plaiiied he thought he was having an allergic reaction to. Aleve that he had taken .... The complaints the phuntiff made to the ambulartce (s fr:). were consistent 4 44 of 19 [*FILED: 5] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 with the emergency room chart and were both sans urinary and scrotal coin plaints. The plaintiff returned to Dr. Wieder on July 7, 2016 at 3:57 p.m .... Overall,Dr. Wieder noted complahitS of dysuria and heniatutia. He examined the plaintiff's ge11itilia (sic) and noted blood atthetip ofthe penis and on the pad in the underwear. ... He noted the testicles to be non~tender and normal in size and contour .... No erythema (redness), indt.rration, foul odor, Crepitus nor any other visible discolorations were pre,sent, .. Dr. Wieder's impression was possible UTI, kidney stones, and, because of the blood in the urine, potentially cancer .... In any event, Dr. Wieder was evidently concerned that the plaintiff had blood in his urine a:nd pad- so he ordered a complete blood counta:nd a urine culture and serit him to his urologist; Dr. Bruno. immediately .... He also prescribed art antibiotic empirically for a suspected possible UTI; LeVaquin 500 mg: every day for 7 days .... Theblood tests and urine c:uJture did not come bac:k and were nofseeh by [Dr.} Wieder untilJuly 11, 2016 as documented in the chart and as he testified .... The plaintiff arrived at Dr. Bruno's office at4:51 p.m. the same day, July 7. 2016 .... Dr. Bruno examined the plaintiffand noted Sorne swelling of the scrotum, but no tenderness .... He also did not note any discoloration or crepitus in the area ... ; In light ofthe bleeding, Dr. Bruno performed a cystoscopy ili order to evaluate any. sources of bleeding as well as examine the bladder .... He found no kidney stones, blood or infections .... Dr. Bruno performed a urinalysis which revealed only trace blood and trace leukocytes, ... Dr; Bruno attributed the scrotum swelling to the patient's discontinuance of his furosemide {diuretic) .... Neither Dr. Wieder nor Dr; Bruno observed ariy discoloration of the plair1tifr $ .penis or foul odors emanating fron1 the greater genital area, The plaintiff presentecl to du~ Winthrop Emergency Peparlmerit. three days later on July i 0; .· 20i 6..... As per the plaintiffs testimony, the swelling and pain increa$ed over the span of the three days and became much worse .. ;. He was noted to have a fever and his scrotum was 5 5 of 19 ---••"""'"'""-"''"··---------------------------·-·"'-••·---•--'"" ... , ______ [*FILED: 6] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 warm and discolored .... A CT scan performed at \Vi11throp revealed the presence of some gas pockets in the proximal penile shaft with some extension into the abdomen, compatible with potential Foumier' $ gangrene .... F oumier' s gangrene is generally characterized as.a very rate; markedly aggressive infectious.process that affects the genitals; ... The infecticm causes necrosis in a very short period of time, usually within hours of fonuing .. ;. Unfortunately, this necrotizing fasciitis can only be identified once it becomes clinically evident whichis when it reaches the skin. Fournier' s gangrene does not exist for days .... The plaintiff was taken in for surgery by urologic surgeon, Dr. Toby Handler. ... Intraoperatively, Dr. Handler noted in the left side of the scrotum nearthe penile shaft a pttrulent cavity was found with foul smelling pus .... Most significantly, Dr. Handler found there was no blackened. tissue and the fascia did not appear necrotic whatsoever - indicating this fast moving infection was just in its early stages;.,. Markedly, all tissues were pink and healthy . ... ''See Defendant Dr. Wieder's Affirmation in Support of Motion (Seq. No. 04) Exhibits A, B, G, K. Mand R-Y. Counsel forqefendartt Dr. Wieder further asserts, in pertinent part, that, "[a]s is explained in the affirmations of Dr, Charles Bardes (internal medicine expert) and Dr. Dial Hewlett (infectious disease expert), th~ care and treatment rendered by Dr. Wieder clid not depart from the accepted standards of medical care and treatment. It is the opinion of both Dr. Bardes and Dr. Hewlett that the care and treatment rendered b)'Dr. Wieder at all times comported with the standards of care and treatment and did not proximatel.Y cause the. plaintiffs allegedjnjuries .... At the outset; it niUStbe brought to this Honorable Court's attention that the date of the allegations in the Bill of Particulars ls July 7, 2016.... The plaintiff is not alleging any malpractice with regard to his earlier presentations to Dr. Wieder. Nonetheless, as Dr. Bardes opines, Dr. Wieder exerci.sed. proper 111edical judgment at the Jurie. ·3 0, 2016 ·visit arid throughout . . 6 66 of 19 [*FILED: 7] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 his entire care and treatment of the plaintiff ... Whereas plaintiff's counsel alleges (sic) Dr. Wieder failed to provide adequate and propennedical care and treatment to the plaintiff on July 7; 2016 when he purportedly presented with complaints of bright red urine, pain and scrotal edema for one [to] two days- both Dr. Bardes and Dr. Hewlett opine, thisis not supported by the records or Dr. Wieder's exam findings .... In viewoftheplaintiffs symptomology, which included hematuria and dysuria, and his examination findings, Dr. Bardes and Dr. Hewlett agree Dr. Wieder made the proper and appropriate decision to refer the plaintiff to a urology specialist on an emergent basis .... Our experts opine that the differential diagnoses arrived atby Dr. Wieder wete proper and it was also proper to prescribe empiric Levaquin at 500mgevery day for 7 days as this is an appropriate antibiotic to prescribe for a suspected possibleUTl. ... Whereas plaintiff. s counsel alleges• that Dr. Wieder failed to obtainappropriate ·consultations, including an infectious disease specialist and/or sending the plaintiffto the emergency room to diagnose Fournier' s gangrene - having beeri. aware the plaintiff was treating. with an (sic) urcilcigist, both Dr.Bardes and Dr. Hewlett opine it was not a departure from the standard of care for Dr. Wieder to defer to that specific· specialist directly .... Additionally, bcith our experts agree (sic) the plaintiffs condition, symptoms and exam findings on July 7, 2016 did not warrant a referral to an infectious clisease doctor or sending the plaintiff to an ER for Fournier's gangrene because; as st11ted earlier; the plaintiffdid not have Foumier's gangrene c1t this time ... , As our . . experts opine, the plaintiffs presentation to Dr. Wieder on July 7, 2016 was not consistent with Fournier's gangrene and was conshtent with a possible UTI, kidney stones or urinary cancer because. of the bloodin the urine .... Dr. Bardes and Dr. Hewlettagree that none of these conditions warranta referral to ah infectious disease doctbtor.a referral to art ER and such a referral at this time wb.uld not have led to a diagnosis .of Foutrlier' s gangrene• because the 7 7 of 19 ---------------------····--·---·-· ..··········-----·-·····-······-·- [*FILED: 8] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 plaintiff did not have symptoms of it because he did not have ityet. ... Both of our experts detailed that Dr. Wieder as well as Dr. Bruno specifically charted thatthe plaintiffs genitals were not discolored, did not have crepitus and were not emanating any four odors - all vital characteristics ofFournier' s gangrene;" See Defendant Dr. Wieder' s Affirmation in Support of Motion (Seq.No. 04) Exhibits A, B and·K. In opposition to defendant Dr. Wieder's motion (Seq. No. 04), plaintiffs' cmmsd asserts, in pel'tinent part, that, "[p ]laintiff MICHAEL DELIA began suffering from more frequenturinary tract infections in 2015, about 15 years after a radical prostatectomy. Around that time, Mr. DELIA began to treat with Defendant Alan Wieder, M.D. as his primary care physician. On June 30, 2016, he presented to Dr. Wieder with complaints ofpain in his lower back, swelling and pain in his testicles; redness in his scrotal area and painful urination in the few days prior to the presentation, butthe symptoms of painful urination seemed to lessen by the time ofthe visjt According to the Plaintiff, Dr. Wieder did not perform a physical examination of Plaintiff on June 30, 2016, yet he did prescribe the antibiotic Cipro. The Plaintiff filed the prescription and took the Cipro as prescribed through July 5, 2016, However, he continuedto have back pain, testicular pain and swelling in his scrotum and his. symptoms worsened. Due to. pain, he left work early on July 1, 2016. The pain in his testicles on July 2, 2016 caused him to putapillow betweenhis legs when lying down. He had difficulty moving and complained of weakness when attempting to get out of bed. The weakness and pa(n continued in his lower back and testicles through July 3;.2016.and July 4, 2016. By July 5, 201t5i.PlaintiffMICHAEL DELIA was unable to sleep or .go to work. He. described the pain in his lower back and scrotal. area had increased to an 8 o:r9out·of 10, and recounted that he had physical symptoms of 1 sweatingi and 'shaking', He was takeri to Defendant MERCY MEDICAL CENTER via ambulance on that date. Plaintiff 8 88 of 19 -------------------------------················--······-··························· [*FILED: 9] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 explained all of his symptoms to the ambulance emergency medical technicians, including the chills, terrible pain in his groin area, extreme weakness. He also mentioned that he thbughthe had.takenAleve. For reasons unknown to Plaiµtiff, theEMTs indicated that they believed his symptoms were due to a reaction to Al eve. Plaintiffrepeated his symptoms to the medical providers at Defendant MERCY MEDICAL CENTER. After several hours, he was advised that his white blood cell Count was elevated with no explanation ofwhat that meant. He was discharged without the issue of his pain addressed and without any prescriptions. The next day, July 6, 2016, PlaintiffPAULA DELIA called Defendant DR. WIEDER and an appointment was scheduled for July 7, 2016. PlaintifrMICHAEL DELIA stayed in bed on July 6 and 7, 2016 until< it was ti1ne to get ready for his appointment. Over these two days, Plaintiff remained bedridden mid was unable to work due to weakness as wen as significantpainin his lower back and scrotum. His scrotum was swollen and, tender to the touch. Immediately prior to his appointment with Defendant DR. WIEDER on July?, 2016, Plaintiff MICHAEL DELIA described being ten-ified to discover that his incontinence pad was soaked in blood. When I)efen4ant DR. WIEDER saw Plaintiff at approximately 3:30 p.m.,. Plaintiff showed DR. WIEDER the bloody pad, explained that he was bleeding from his penis; that he testicles were swollen and painful, that he had back pain arid had recently been to the emergency room on July 5; 2016, In response, DR. WIEDER advised Plaintiff MICHAEL DELIA to visit a urologist iimnediately. Mr. DELlA made an emergency appointment with Advanced Urology, where he had previously been a patient, for the sam~ day. Plaintiff arrived ;at Advanced Urology at approximately 5:00 p.m., provided a mine sample and was talcf:::11 into an exa.I11ination room accompanied by his wife, who remained in the room with him until a procedu,re was performed: When Defendant OR. BRUNO arrived, Plaintiff showed him-the JJad fµll ofbl9od an4. described his painfl.11 9 99 of 19 --------------------------·-··----·-----·-···"----- [*FILED: 10] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 symptoms. He advised Defendant DR. BRUNO that he had been experiencing back pain for weeks, and this his 'groin area' was swollen for days. Defendant DR. BRUNO performed a cystoscopy procedure and advised the Plaintiff that the procedure would determine the source o:f the bleeding, Subsequent to the procedure; Defendm.1t DR.BRUNO infmmed Plaintiffs that Mr. DELlAts bladder was 'fine' and that he did not have a tumor. He advised Plaintiff to take his 'water pill' and walk around in order to alleviate his symptoms. Despite followingDefendant DR. BRUNO's instructions as much·as_possibk for thertexttwo days, Plaintiff MICHAEL. DELIA 's symptoms of weakness arid pain worsened. In addition, Plaintiff experienced severe child ai1d sweats. By Sunday, July 10, 2016, seeing no improvement and an increase in the severity of symptoms, PlaintiffPAULADELIA brought Plaintiff MICHAEL DELIA tothe emergency room ofWinthrop University Hospital as Defendant DR. BRUNO's practice was affiliated with Winthrop. He· was transported from his car to the emergency room by wheelchair with the assistance ofa security guard. He was transferred to·a bed almost·immediately due to (sic) inability to sit upright in the wheelchair caused by weakness and pain. Plaintiffs temperature was recorded at 105 degrees, After a CT scan, Plaintiff MICHAEL DELIA was infonned that he was very ill and required immediate surgery. Due to his grave condition and possible fatal outcome of surgery, 1v1f. DELIA's wife and daughter were told to say 'goodbye' to him. The em(;!rgency surgery was performed by Defendant DR BRUNO'S coworker, Dr. Toby Handler. While Mr; DELIA survived the surgery, he was treated in the ICU. He and his family learned that his symptoms over the past weeks.were due to an infection which resulted in Fournier' s Gangrene, an· infection. of the. scrotum arid penis. Plaintiff underwent weeks of hyperba:rictteatrnehts, several wound debridementsurgeties; painful wound dressing changes and follow up treatment at a.wound care center for approximately a month subsequent to his• 10 10 of 19 [*FILED: 11] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 discharge. The physical damage to Plaintiff was devastating as he lost a portion of his penis. \1/hat remained of his penis was retracted into his scrotum. The retraction of his penis into his scrntum caused urine to pool in his scrotum when he urinated which would then be released when he stood up, soaking his clothes. Plaintiffwas required to carry ·extra pants and w:iderwear when he left his home. Due to the severe urinary incontinence, he carried an unpleasantly disarming odor which caused the Plaintiff great humiliation and ultimately cost him his job due to complaints from co-workers concerning the odor, Plaintiffcontinuedto suffer from urinary tract infections and he was prescribed daily antibiotics to address the infections. The incontinence was more severe than previously and he went from using 1-2 pads a day to replacing theincontinencepad•every few hours. Despite his be$t efforts, Plaintiff was unable•to find other, permanent full ..tim.e employment due to his incontinence. Ultimately, he gained employment as a parHime aide in an elementary school. Since his hospitalization in July 2016, Plaintiff has endured years of continued medical treatment and surgeries due to the sequelae of the Fournier's Gangrene. The continued urina,ry tract infections, resulted in a second instance of Fournier' s. Gangrene in January 2019 which resulted in tile colllplete loss of Plaintiff'.s penis, multiple painful surgical procedures and excruciating bladder spasms. Plaintiff was required to undergo 01ultiple surgeries tobuild a permanent ostomy for urination as he no longer has a penis. He must cope with the unnatural, uncomfortable and dehumanizing circumstance of having a bag ofurirte attachedtohisbody for the rest ofhis life . Over one year later, Plaintiff is still undergoing treatment and enduring prbcedures to .ccitt.ect datnag;ed ureters, fistu:las and painful adhesimts/scar tissue." See Plaintiff Michael Delia's Affidavitin.Opposition to. Motion (Seq. Nb; 04). 11 11 of 19 [*FILED: 12] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 Counsel for plaintiffs argues, inpertinent part, that, ''[t]he Defendant in this matter has not p'rovided sufficient evidence to satisfy the.burden which the proponent ofa summary j udgmetit motion mnstmeet. The Affinnatiohs ofDefendaiit' s experts do not establish pr Una facie entitlemenUojudgment as a matter of law as they have failed to demonstrate with evidence that Defendant DR. WIEDER. acted within the acceptable standard of medical care. Moreover, the Affirmations of Defendant's experts must be carefully scrutinized as they focus solely on whether or not P lairttiff was suffering from Foumier' s Gangrene on July 7, 2016. ·They fail to address the critical fact that if Defendant WIEDER had properlytreated PlaintiffMICHAEL DELIA during the period of June 30, 20 l 6Jhrough July 7, 2016, including addressing his abnormal urine test results on July 1 and 3, 2016,. investigating the cause of his symptoms and advisingthe urologist of Plaintiffs sympto1ns, it is tnore likely than not that Mr. DELIA would not have developed Fournier's Gangrene orthe resultantdevastatinginjuties. Not do the Defendant's expe1ts address any of the other injuries and areas of malpractice alleged in Plaintiffs' Verified Complaint and Verified Bill of Particulars .... Defendant's counsel's attempts to support the:ir (sic) claims that there are no triable issues of fact herein by stating that Plaintiff MICHAEL DELIA did not have Fournier's Gangtene on July 7, 2016 is (sic) insufficient to establish summary judgment. Defenqant' s counsel ignores the crucial fact that Plaintiff would never have developed Foumier's Gangrene ifhe had been appropriately treated by Defendant DR. WIEDER during the·imrilediate·time periodleadingup to.July 7,2016 .... Additionally, Defendant; s .courts el argues. that DR. WIED ER acted within the .accepted. standards of medical care when he. diagnosed Plai11tiff as- having 'either a UTI, kidney stones or cancer'; However, that 'diagnosis' is nowhere in Defendant's office visit note. '. ;. Thus, this gratuitous sta:tentent cannot be consii:lei'ed relevant.', See Plaintiff Nfichael Delia's Affirmation in Oppos1tiort to 12 - - - - ------·--·- ............. . 12 of 19 [*FILED: 13] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 Motion (Seq. No.04)Exhibit A; Defendant Dr. Wieder'sAffirmaticm in Suppo1t of Motion (Seq, No, 04) Exhibits E, G and R. Counsel for plaintiffs further contends,in pertinentpatt, that, ''[d]efendant WIEDER's internal medicine expert, Dr. Charles Bardes, claims that Dr. WIEDER acted within the accepted standard of medical care and that his actions or inaction were not the cause of Plaintiff MICHAEL DELIA's injuries. Dr, Bardes opinesthatDR. WIEDER rendered good care to the Plaintiff. ... He states that Defendant DR, WIEDER.properly referred Plaintiff MICHAEL DELIAto a urologist artd that no Fournier':s Gangrene was present on July 71 2016 .... Dr. Bardes foe.uses On the referral and lack of the presence of Fournier' s Gangrene on July 7, 2016; minimizes the impact of the negligent care provided by Defendant DR. WIEDER in the week leading up to the (sic) July 7, 2016, and dismisses the need for DR, WIEDER to contact Plaintiffs urologist to advise (sic) ofhis alleged, but undocumented, concerns on July 7, 2016. Additionally, Dr. Bardes makes an incredible assumption, completely unsupported by Defendant DR. WIEDER'S deposition testimony, thatDefendant DR. WIEDER would nothave acted differently if he had been in possession of the Plaintiffs. Mercy Medical Center emergency departmentrecords from July 5, 2016 .... Such an assumption, it is respectfully submitted, has no basis in fact and must be rejeqted .. Defondant WIEDER'sinfectious clisease expert,_Dr. Dial . . Hewlett, Jr.,also claims that Dr. WIEDER acted within the accepted standard of medical care and that his actions or inaction were not the cause of Plaintiff MICHAEL-DELIA'S.injuries. Dr. Hewlett opines thatDR. WIEDER rendered good care to the Plaintiff.,., He states that Defendant DR, WIED ER properly .referred Plaintiff to a urologist and acted appropriately in changing Plaintiffs antibiotic. Dr, Hewlett also states that no Fourhier;s .Gangrene was present on July 7, 2016 .... Defendai1t .WIED ER also relies on an Affihnation provided by Dr; Toby 13 13 of 19 [*FILED: 14] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 Handler in support of Defendant DR, ANTHONY BRUNO'S motion to bolster his experts' opinions that Plaintiff MI CHAEL DELIA did not have F outnier' s Gangrene on July 7;, 2016. Dr. Handler's Affirmation is scarcely probative as she conspicuously failed to disclose·thather opinion is biased due to her financial relationship with Dr. Bruno as his partner in his urology practice at the time that she treated Plaintiff. ... Moreover, herstatements in her Affirmation that Plaintiff did not have Fournier's Gangrene are contradicted by the medical record, and apparently; Defendant DR. WIEDER'S own experts. Specifically; her own practice's records list Fournier' s·Gangrene as the diagi'lbsis .... Plaintiffs internal medicine expert disputes virtua.lly every allegation of Defenda.nt's experts. He/she opines that there were multiple deviations by Defendant DR. WIEDER including: failing to contact Plair1tiffMICHAEL DELIA's urologist on July 7, 2016 to advise Plaintiffs urologist of his symptoms of infection; failing to adequately review Plaintiff MICHAEL DELIA's symptoms durirtghis July 7, 2016 office visit, including Plaintiff's complaints of.scrotal swelling and presentation of infection syrnptori1s; failing to appropriately treat and address Plaintiff MICHAEL DELIA 's symptoms of infet:tion, pain, and painful urination onJuneJ0,2016 and July 7, 2016; failing to appropriately log and document P laintiffMICHAEL DELIA' s symptoms of pain, induding tenderness andlocalization; failing to address PfaintiffMICHAEL DELIA's abnormal urine test results received on or about July 1 and 3, 2016; 1ncluding but not limited to the presence of gram negative rods and moderate leukocytes indicating the presence ofinfection; failing to appropriately follow Up with PlaintiffMICHAEL DELIA regarding the abnormal urine culture results received on or about July 1 and 3, 2016; failing to diagnose Plaintiff MICHAEL DELIA's.infection; failing to examine Plaintiff MICHAEL DELIA' s scrotum: on July 7, 2016 -despite Plaintiffs documented complaint of scrotal swelli11g; failing to p1;escribe appropriate ni.edications to· treat Plaintiffs. infection; and 14 14 of 19 [*FILED: 15] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 faiHng to timely investigate, diagnose and adequately treat Plaintiff MICHAEL DELIA's symptoms ofinfection during the period.· (sic} June 30, 2016 through July 7, 2016. Plaintiffs internal medicine expert further·opines; in direct opposition to the statements made by Defendant's ex:perts, that if DR. WIEDER had acted within the accepted standards of medical care and had investigated.the cause of Plaintiffs ongoing symptoms, Mr. DELIA'sinfec;tion would have been treated and it is more likely that not that he would not have developed Fo1irnier's.Gartgrene." See Plaintiff Michael Delia's Affirmation in·Oppositionto Motion (Seq. No. 04) Exhibit A; Defendant Dr. Wieder's Affirmation in Support of Motion (Seq. No. 04) Exhibits A, B and T. It is well settled that the proponentofa motion for summary judgment must make a primafacie showing of entitlement to judgment as• a matter of law by providing sUfficient evidence to demonstrate the absence of material issues of fact. See Sillman v: Twentieth Centwy-FoxFilin Coip,, 3 N;Y.2d395, 165 N.Y.S.2d 498 (1957); Alvarez v: Prospect Hospital, 68 N:Y.2d 320,508 N.Y.S.2d 923 (1986); Zu.ckerman v. City ofNew York, 49 N.Y.2d 557, 427 N,Y.S.2d59S(1980);Bhattiv. Roche; 140 A.D.2d 660~ 52KN,YS.2d 1020 (2d Dept.1988). To obtain summary judgment, the movirtg party must establish its claim or defense by tendering sufficient t!Videntiary proof, in admissible fonn, sufficient to warrant the court, as a matter of law, to direct judgmentin the movant's favor. See Friends ofAnimals, Inc. v. Associated Fur Mfrs:; Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d790 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to art attorney's affirmation. See CPLR § 3212 (b); Dian v. Farrell Lines Inc., 64 N;Y2d 1092, 489 N .Y$.2d 884 (1985}. If a sufficientprimafdcie showiJJ.g is demonstrated, the.burden then shifts fo the rton,;moving party to collie. forward with competerit .evidence fo demonstrate the existeilce of a 15 ............... --~... .... .. ........................ __ .........,,,, - , , , , ___ 15 of 19 ---·················-·-·············................ . [*FILED: 16] NASSAU COUNTY CLERK 02/16/2021 11:34 AM INDEX INDEX NO. NO. 617091/2018 617091/2018 NYSCEF DOC. DOC. NO. NO. 214 214 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 material issue of fact, the existence of which necessarily ptecludeSthe granting of stimmary judgment and necessitates a trial. See Zuckerman v. City o/Ner11 York, supra. When considering a motion for summary judgment, the function ofthe court is not to resolve issues but rather to detehnine if any such material issues offact exist.See Sillman v. Twentieth Century-Fox Film Corp, , supra. Mete cond us ions or unsubstantiated allegations a.re insufficient to raise a triable issue. See Gilbert Frank Cm1J, v. Federal Ins. Co;, 70N.Y.2d 966,525 N.Y.S.2d 793 (I 988). Further, to grant summary judgment, it must clearly appear that no tnatetial triable issue offact is presented, The burden on the court in deciding this type of motion is not to resolve issues. of fact or determine matters of ctedibi lity, but merely to ·determine whether such issues .exist. See Barr v. Albany County, 50 N. Y.2d 247, 428 N. YS.2d 665 ( 1980); Daliendo v. Johnson, 147 A.D.2d 312,543 N.Y.S.2d 987 (2dDept. 1989), Itis the existenceofan issue,not its relative strength that is the critical and contro1ling consideration. See Barrett v. Jacobs, 255 . . . . . .· . . . . . ·. . . t . .. .. .. N.Y. 520 (1931); Cross v. Cross, 112 A.D.2d 62,491 N.Y:S.2d 353 (P Dept. 1985), The evidence should be construed in a light mostfavotable to the party moved against. See Weiss v: Garfield,21 AD.2d 156,249 N,Y:S.2d 458 (3d Dept. 1964). '"In order to establish the liability of a physician for medical malpractice, a plaihtiffmust prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause ofthe plaintiff's injuries.'" Leighv, Kyle, 143 A.DJd.779,.39N.Y.S.3d 45 (2d Dept, 2016) quoting Stukas v, Streiter, ·83 AD,3cl 18, 918 N,Y.S.2d 176 (2d Dept. 2011), '\A defendant seeking summary judgment in a medical malpractfoe action bears the initial burden of establishing~ primafacie, either that there was no departure from the applicable :Standard of care, or Hiat any• 1:1.lleged departure did not proximately cause the plaintiff's inj u:ries. '' 16 16 of 19 ----------···-··-······················-·-·················· ····················- ········································- .......................................... ··············-················-···-·-········--- [*FILED: 17] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 A1ichelv. Long ls. Jewish Med. Ctr., 125 A.D.3d 945, 5 N.Y.S.3d f62 (2d Dept. 2015) Iv denied 26 N.Y.3d 905, 17 N.Y.S.3d86(2015). See alsoBarroca/e()' v. New York Methodist Hosp., 122 A.D.3d648, 996 N,Y.S.2d 155 (2d Dept. 2014);Berthen v. Bania~ 121 A.D.3d 732, 994 N.Y.S,2d 359 (2d Dept. 2014); Trauring v. Gendal, 121 A.D.3d 1097; 995 N.Y.S.2d 182 (2d Dept. 2014); Stukas vStreiter, supraat23;Gillespie v. New York Hosp: Queens, 96A.D.3d 901, 947 N. Y. S.2d 148 (2d Dept. 2012} Expertevidence is required when evaluating th~ "perlormance of functions that are an integral part o fthe process ofrendering medical treatment ... to a patient." D'Elia v, lvfenotah Horne and Hosp.for the Aged & Infirm, 51 AD.3d 848,859 N.Y.S.2d224 (2d Dept. 2008). See also Koster v. Davenport, 142A.D.3d 966, 37N.Y.S,3d 323 (2d Dept. 2016) Iv to appeal denied 28 N. Y Jd 911, 4 7 N. Y.S.3d 227 (2016). Additionally, the 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.2d556 (2d Dept. 2013). "Once a defendant physician has made such a showing; the burden shifts. to the plaintiff to demonstrate the existence of a triable issue: of fact, but only as to the elem<::,nts on which the defendant met the prima facie burden." Gillespie v: New York Hosp. Queens, 96 A.D.3d 901, 947 N.Y.S.2d 148 (2d Dept. 2012). ''Establishing proximate cause in medical malpractice· cases requires a plai~t_iff to present sufficient medical evidern:e from whic:h a reasonabl~ person might conclude that it was more probable than not thatthe defendant; s departure was a substantial factor in causing the plaintiff's fojury."Semel v; Guzman, 84 A.D.3.d 1054, 924 N.Y.S.Zd 414 (2d Dept. 2011) citin$f Johnson v. Jamaica Hosp; Med Ctr., 21 AD.3d 88J,. 800N.Y,S.2d 609 (2d Dept 2005); Goldbergv. Hotow1tz 1 21 A.DJd 802, 73 A.b.3d 691, 901 N.Y.S.2d 95 (2d Dept 2010). See also ~~keity-Hdnd v. Lizardi, 11 i A.D.3 d 118 7, 97 5 N. Y. 82d 514 (2d Dept 2013). A. piairitiff is not 17 17 of 19 - - - - - · - ·······------·---···- [*FILED: 18] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 required to eliminate another possible causes. See Skelly-Hand v, Lizardi, supra at 1189. '"The plaintiffs evidence may be deemed legally sufficient even if [her] expert cannot quantify the extent to which the defendant's act or omission decreased the plaintiffs chance of a better otttcome or increased [the] iiljury,. as kmg as evidence is presented from whichthe jury. may infer that the defendant's conduct diminished the plaintiffs chance of a better outcome or increased [the] injury.,.;, Alicea v. Ligouri,54 AD.3d 784,. 864 N.Y.S.2d 462 (2d Dept. 2008) quoting Flahe'rty v. Fromberg, 46 A.D.3d 743,849 N.Y.S.2d 278 (2d Dept. 2007) citing Barbuto v. Winthrop Univ. Hosp.,305 A.D.2d 623, 760 N:Y.S.2d 199 (2d Dept. 2003); Wong v. Tang, 2 A.DJd 840; 769 N.Y.S.2d 381 (2d Dept 2003); Jinnp v. Facelle, 275 A.D.2d 345, 712 N.Y.S.2d 162 (2d Dept. 2000) Iv denied 95 N. Y.2d 931, 721 N.Y.S.2d 607 (2000) Iv denied98 N.Y.2d 612 1 749 N.Y.S.2d3 (2002). Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical opinions. See Romanov. Persky; 117 A.D.3d 814, 985 N.YS.2d 633 (2d Dept. 2014); She he bar v. Boro ParkDbstetrfr:s & Gyne.cology, P. C, 106 AD.3d 715, 964 N.Y$.2d 239 (2d Dept. 2013); Poter v. Adams, 104 A.D,3d 925, 961 N.Y.S.2d 556 (2d Dept. 2013); Hayden v. Gordon, 91 AD .3d 819, 93 7 N. Y.S.2d 299 (2d Dept. 2012); Wexe/baum v; Jean, 80 A.D.3d756, 915N.Y.S.2d 161 (2d Dept. 2011); McKenziev. Clarke, 77 A.D.3d 637, 908N.Y.S.2d 370 (2d Dept. 2010); Roca v. Pere!, 51 A.D,3d 757,859 N:Y.S.2d 203 (2dDept. 2008); Graham v. Mitchell, 37A.D.3d 408; 829 N.Y.S.2d 628 (2dDept. 2007); Feinbergv. Feit, 23 A.D.3d 517, 806 N:Y.S.2d 661 (2d Dept. 2005). ''Such conflicting expert opinions will raise credibility issifes which can only be resolved by ajuty." DiGerotzimo v. 957 N.YS.2d 167 (2dDept. 2012). 18 ···-·---·········-··--··· ·-······---·····-··· ......... . 18 of 19 Fuchs, 101 A.D.3d 933, [*FILED: 19] NASSAU COUNTY CLERK 02/16/2021 11:34 AM NYSCEF DOC. DOC. NO. NO. 214 214 INDEX INDEX NO. NO. 617091/2018 617091/2018 RECEIVED NYSCEF: NYSCEF: 02/16/2021 02/16/2021 The Court notes tbat there are opposing opinions of defendant Dr. Wiedet's medical experts and plaintiffs; medical expert concerning. the allegations of medical malpractice. The Court, therefore, finds that surhmaryjudgment is not appropriate in the instant matter with respectto plaintiffs' medical malpractice claims. Therefore, based upon the above, defend~nt Dr. Wiedet's motion (Seq, No. 04), pursuant to CPLR § 3212,·for an order granting summaryjudgmentdismissingplaintiffs' Verified Complaint as against him, is hereby DENIED. The parties shall appear for Trial, in Nassau.County Supreme Court, Differentiated Case Ma11agen1ent Patt (DCM), at 100 Supreme CourtDrive, Mineola, New York, on April 13, 2021, at9:30 a.rn. This constitutes the Decision a11d Order of this C:~ ....· . ENTER: :,~ ,----....;;;:~.-'--~----~----r...;::,.;.__,,- nENI Dated: Mineola; NewYork February 11, 2021 L. SHER, ~ ENTERED Feb 16 2021 NASSAU COUNTY COUNTY CLERK"S OFFICE 19 19 of 19 ---------·•-•'-"""·-----

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