Mashack v Vincentic

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Mashack v Vincentic 2021 NY Slip Op 33034(U) November 5, 2021 Supreme Court, Bronx County Docket Number: Index No. 22568/17 Judge: Joseph E. Capella 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] BRONX COUNTY CLERK 11/19/2021 04:32 PM NYSCEF DOC. NO. 70 INDEX NO. 22568/2017E RECEIVED NYSCEF: 11/19/2021 NEW YORK SUPREME COURT - COUNTY OF BRONX PART 23 Case Disposed • Settle Order • SUPREME COURT OF THE STATE OF NEW YORK Schedule Appearance • COUNTY OF BRONX ---------------------------------------------------------------------X Index#: 22568/17 CHERYL MASHACK, DECISION/ORDER Plaintiff, Present: Hon. Joseph E. Capella J.S.C. - against ANTO VINCENTIC, D.P.M., Defendant. ---,----------------------------------X Tl1e fio11owmg papers num bere d 1 to 3 read on t 1s motion. PAPERS NUMBERED NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1 ANSWERING AFFIDAVIT AND EXHIBITS 2 REPLY AFFIDAVIT AND EXHIBITS 3 UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS GRANTED AND DENIED IN PART AS FOLLOWS: Defendant seeks summary judgment (CPLR 3212) and dismissal of the instant podiatric malpractice action in which plaintiff alleges that defendant was negligent on various dates from February 4 through April 8, 2015, in failing to timely diagnose and treat osteomyelitis of the left foot following two injections. The complaint also includes a cause of action for negligence (second cause of action), informed consent (third) and res ipsa loquitur (fourth), and alleges that defendant's conduct was wilful and wanton to warrant punitive damages. As the movant for summary judgment, defendant must make a prima facie showing of an entitlement to same as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v Prospect, 68 NY2d 320 2 of 7 [*FILED: 2] BRONX COUNTY CLERK 11/19/2021 04:32 PM NYSCEF DOC. NO. 70 INDEX NO. 22568/2017E RECEIVED NYSCEF: 11/19/2021 [1986].) In other words, defendant must provide evidentiary proof in the form of expert opinions and/or factual evidence that establishes that it did not deviate from accepted standards of care and practice, and as such, its conduct was not a proximate cause of plaintiffs injuries. (Fileccia v Massapequa, 99 AD2d 796 [2 nd Dept 1984]; affirmed 63 NY2d 639 [1984].) lfhe does, then the burden shifts to plaintiff to produce evidentiary proof in admissible form sufficient to both create issues of fact for a trial (Alvarez, 68 NY2d 320), and warrant denial of summary judgment. According to defendant's expert, Dr. Edwin Wolf, who is board certified in podiatric medicine and surgery, defendant did not depart from good and accepted pediatric care in causing or failing to treat the infection/osteomyelitis. He opines that based on the lapse of time between the subject injections, the onset of plaintiff's abscess and subsequent osteomyelitis, and the lack of findings on an MRI from March 11, 2015, the two injections administered by defendant on February 13 and 23, 2015, could not have caused plaintiff's injuries. He notes that plaintiff did not have subjective signs or symptoms of infection in the days following the injections, and there was no finding of infection, abscess or osteomyelitis on the MRI of March 11, 2015. Dr. Wolf opines that the care and treatment rendered by defendant cannot be the cause of any injury to plaintiff. Lastly, Dr. Wolf opines that defendant obtained the appropriate informed consent by discussing the risks, benefits and alternatives to the treatment rendered. According to the bill of particulars, plaintiff suffered, inter alia, abscess of left 2 3 of 7 [*FILED: 3] BRONX COUNTY CLERK 11/19/2021 04:32 PM NYSCEF DOC. NO. 70 INDEX NO. 22568/2017E RECEIVED NYSCEF: 11/19/2021 foot, fragments of focally necrotic fibrous tissue and methicillin-susceptible staphylococcus aurous. It is well settled that an action for injuries sustained while under the care of a medical practitioner may proceed on a theory of simple negligence or the more particularized theory of medical malpractice. (Hale v State ofNY, 53 AD2d 1025 [4th Dept 1976].) Simple negligence is restricted to those cases where the alleged negligent act is readily determinable by the trier of fact based upon common knowledge, whereas malpractice involves issues regarding treatment/care that more often than not requires expert testimony. (Id.) And Dr. Wolfs opinion clearly established a lack of causation, which applies equally to both simple negligence and medical malpractice. Overall, given the alleged conduct and injuries, this action does not qualify as one for simple negligence, but in fact is one that falls exclusively within the medical malpractice realm. As for the complaint's allegation that defendant's conduct was sufficiently wilful and wanton to warrant punitive damages, plaintiffs claims center around the alleged failure to timely diagnose and treat osteomyelitis of the left foot following two injections. While these alleged facts may demonstrate medical malpractice, they do not rise to the level of willful conduct that evidences a high degree of moral culpability. (Rey v Park, 262 AD2d [2 nd Dept 1999].) In addition, the complaint does not allege a foreign body or injury occurring at an operative site while plaintiff was anesthetized, (Mack v Hall, 121 AD2d 431 [2nd Dept 1986; Pipers v Rosenow, 39 AD2d 240 [2nd Dept 1972]), that would 3 4 of 7 [*FILED: 4] BRONX COUNTY CLERK 11/19/2021 04:32 PM NYSCEF DOC. NO. 70 INDEX NO. 22568/2017E RECEIVED NYSCEF: 11/19/2021 warrant a res ipsa loquitor claim. Based on the aforementioned, the court is satisfied that defendant has met his burden for summary judgment, (Zuckerman v City of NY, 49 NY2d 557 [1980]; Kaffka v NY Hospital, 228 AD2d 332 [l st Dept 1996]), which now shifts to plaintiff to demonstrate that issues of fact exist to warrant a trial. In opposition, plaintiff provides an expert affidavit from Dr. Steven L. Goldman, a board certified podiatrist duly authorized to practice in the State of New York. 1 The affidavit is not notarized, nor does not indicate where it was executed; however, as Dr. Goldman's curriculum vitae states that he lives in Virginia, it is fair to say that it was executed in Virginia. As the affidavit lacks a notary stamp and a certificate of conformity, it is not in admissible fonn. (CPLR § 2309(c).) Giving Dr. Goldman the benefit of the doubt that this was an oversight, plaintiff shall have 30 days from receipt of this decision to serve and file a corrected affidavit by Dr. Goldman with the appropriate notary stamp and certificate of confonnity. Failure to do so timely shall result in its preclusion as opposition to defendants' motion, thereby warranting a renewal motion (CPLR 222l(e)) by defendant. Setting this issue aside for now, a review of Dr. Goldman's affidavit reveals that given plaintiffs testimony, it is his opinion that defendant's "failure to disinfect his hands, maintain the injection supplies sterile and failure to perform any skin preparation, coupled with the risk of the use of steroids, deviated from the standard" of care and caused the resulting abscess. Plaintiff served an untimely "Supplemental Affirmation in Opposition" dated May 27, 2020; therefore, it is not being considered in review of this motion. 1 4 5 of 7 [*FILED: 5] BRONX COUNTY CLERK 11/19/2021 04:32 PM NYSCEF DOC. NO. 70 INDEX NO. 22568/2017E RECEIVED NYSCEF: 11/19/2021 Dr. Goldman also notes. that the MRI perfonned on March 11, 2015, "demonstrated a presence of fluid in the peroneal tendon sheath, consistent with a finding in the presence of infection." And in response to Dr. Wolfs contention that an infection would have been evident three to five days after the injections, Dr. Goldman states that incubation periods can be as long as 10 days, and this coupled with the MRI "should have raised the suspicion that an infection was indeed brewing deep within" plaintiffs heel. He opines that defendant's failure to timely notice the infection was a deviation from the standard of care. Dr. Goldman further opines that defendant's "failure to administer the injections on the side of the heel and failure to provide any post-procedure guidance to [plaintiff], such as to avoid exposing the injection site, was a deviation from the standard of care and undoubtedly contributed to the development of the infection." Dr. Goldman does not address plaintiffs claim for lack of informed consent and res ipsa loquitor. Viewing the evidence in a light most favorable to plaintiff, (0 'Sullivan v Presbyterian, 217 AD2d 98 [ 151 Dept 1995]), these experts disagree on material issues of fact regarding whether there was a departure and proximate cause (Alvarez v Prospect, 68 NY2d 320 [1986])- issues must be resolved by the trier of fact. (Barnett v Fashakin, 85 AD3d 832 [2 nd Dept 2011]; Frye v Montejiore, 70 AD3d 15 [l st Dept 2009]). The trier of fact will hear from these experts, including the evidence that each one relies upon in forming the basis for their expert opinion, and in tum they will evaluate the weight and credibility of the testimony of these experts. (Cassano v Hagstrom, 5 NY2d 643 [1959]; 5 6 of 7 [*FILED: 6] BRONX COUNTY CLERK 11/19/2021 04:32 PM NYSCEF DOC. NO. 70 INDEX NO. 22568/2017E RECEIVED NYSCEF: 11/19/2021 State v Marks, 87 AD3d 73 [3 rd Dept 201 I].) Given the aforementioned, plaintiff has demonstrated that issues of fact exist to warrant a trial on her medical malpractice claim. Therefore, defendant's motion is granted only to the extent of dismissing plaintiff's claims for negligence, lack of informed consent, res ipsa loquitur, wilful and wanton conduct and punitive damages. As previously noted, however, if plaintiff fails to serve and file within 30 days of receipt of this decision, a corrected affidavit by Dr. Goldman with the appropriate notary stamp and certificate of conformity, then defendant may renew the instant motion (CPLR 222l(e)). Defendant is directed to serve a copy of this decision with notice of entry by first class mail upon plaintiff within 30 days of receipt of copy of same. This constitutes the decision and order of this court. 11/5/21 - - Dated 6 7 of 7

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