Walsh v Resnick

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Walsh v Resnick 2021 NY Slip Op 33444(U) May 14, 2021 Supreme Court, Orange County Docket Number: Index No. EF004132-2019 Judge: Sandra B. Sciortino 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. INDEX NO. EF004132-2019 FILED: ORANGE COUNTY CLERK 05/17/2021 03:34 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 05/17/2021 To commence the statutoiy time for appeals as ofrighl (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of enll)', upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY. OF ORANGE_ ------------------------------------------------------,---X DALE WALSH, Plaintiff, DECISION AND ORDER INDEX NO.: EF004132-2019 Motion Date: 3/25/21 Sequence Nos. 1 - 2 -againstEPHRAIM RESNICK, M.D., HIGHLAND MEDICAL, P.C., ROBERT FISHER, M.D., JAMES RIELLY, M.D., and MONTEFIORE NYACK HOSPITAL, •Defendants. -------------------------- -------------X SCIORTINO, J. The following papers numbered 1 to 18 were considered in connection with the motion of defendant ROBERT FISHER, M.D. (Seq. #1); and the cross-motion of defendants EPHRAIM RESNICK,M.D.,HIGHLANDMEDICAL,P.C.andMONTEFIORENYACKHOSPITAL(Seq.#2) for leave to amend the pleadings to preserve the CPLR Article 16 rights of those defendants: PAPERS NUMBERED Notice of Motion (Seq. #!)/Affirmation (Morales)/Affidavit (Fisher)/ Affirmation (Smiley)/Exhibits C-H · Notice of Cross-Motion (Seq. #2)/Affirmation in Support and in Umited Opposition (Arciero)/Exhibits A-D Plaintiffs Affirmation in Reply to Cross~Motion (Kobin) Affirmation in Reply and in Opposition to Cross-Motion (Morales) 1 - 10 11 -16 17 18 Conference of the matter was held on May 12, 2021 and the issues presented in these motions were addressed. After considering submissions and statements of counsel during court conferences, defendant Fisher's motion for summary judgment is granted and qefendants Resnick, Highland Page.I of 11 Filed in Orange County [* 1] 05/17/2021 03:34:35 PM $0.00 of 11 Pg : 907 Bk:15136 Index: # EF004132-2019 Clerk: DK ~I FILED: ORANGE COUNTY CLERK 05/17/2021 03:34 PM NYSCEF DOC. NO. 92 INDEX NO. EF004132-2019 RECEIVED NYSCEF: 05/17/2021 Medical and Nyack is granted with limitations. Background This action for medical malpractice arises out of a medical procedure performed on March 14, 2018 at Montefiore Nyack Hospital (Nyack). That day, defendant EPHRAIM RESNICK, M.D. (Resnick) was to perform a tofal laparascopic hysterectomy, bilateral salpingooopherectomy and right pelvic node dissection for treat.ment of plaintiff's well-differentiated endometrial cancer. Defendant ROBERT FISHER, M.D. (Fisher) was the anesthesiologist for the procedure. Plaintiff received intravenous pre-operative sedation, which ended at 11:37 a.m. Plaintiff was brought to the operat"ing ro~m atJ I :38 a;m. Plaintiff was supine for the induction of anesthesia. A~ 11 :50 a.m., Fisher administered an intravenous antibiotic. and completed that process at 11 :55 a.m. Thereafter, Resnick dire~ted the surgical positioning of the plaintiff. Plaintiff was placed in a modified dorsal lith~tomy position, with her head below her hips and her legs in stirrups.'The incision was begun at 12:01 (Exhibit Fat 102) and was converted to an open exploratory procedure at 1:35 ,p.m. Plaintiff experienced an intraoperative bleed in t~e well of the dissection. (Exhibit Fat 101) Resnick converted the procedure to a laparotomy to find the source of the bleeding. To perform the laparotomy incision, he changed plaintiffs position to supine, in order to access the area where he.needed to make the surgical cut. (Exhibit Hat 84) Unable to stop the bleeding, Resnick called for a vascular surgeon. While waiting for him to arrive, plaintiff received a unit of packed red blood cells. Defendant vascular surgeon JAMES RIELLY(Rielly) arrived at about 2:00 p.m. Rielly noted that plaintiffs blood pressure was within normal limits and her bleeding was under control with stick sponges. He found a small laceration of the right internal iliac just Page,2 of 11 [* 2] 2 of 11 FILED: ORANGE COUNTY CLERK 05/17/2021 03:34 PM NYSCEF DOC. NO. 92 INDEX NO. EF004132-2019 RECEIVED NYSCEF: 05/17/2021 distal to its confluence with the external iliac vein. He sutured the laceration, and placed a Surgicel cigar in the cavity to provide gentle compression. Thereafter, and after confirmation of the diagnosis from Pathology, Resnick completed the converted procedure, and plaintiff was transferred to SICU at 3 :41 p.m. The next day, March 15, 2018, at approximately 8:00 a.m., the plaintiff complained to Nurse Thomas about numbness. (Exhibit F at 320) That note, entered by the nurse at approximately 10:58 a.m., documents the plaintiffs first complaint of numbness in her right lower extremity. Resnick's progress note, at 9:27 a.m., documents plaintiffs complaint of incisional pain and "tingling in the right foot." Noting right lower leg paresthesia, Resnick asked vascular surgery to evaluate plaintiff. (Exhibit Fat 187) Plaintiff's hospital record documents further complaints of right lower extremity numbness and weakness on March 15 (Exhibit Fat 128). A neurology consult that day notes "right leg weakness" as plaintiffs chief complaint, and plaintiff's report that when she tried to stand earlier in th.e day, her leg "gave way." (Exhibit Fat 217) A CT scan showed no hematoma or other pathology. (Exhibit Fat 223) On March 16, plaintiff's weakness was described as "improved." (Exhibit Fat 131) and on March 17, she was noted to have begun to work with physical therapy. (Exhibit Fat 140) On March 18, Resnick's notes reflect that plaintiff was ambulating with a walker. (Exhibit Fat 200) On March 19, he noted that plaintiff had walked on the stairs and had made a good post-operative recovery. (Exhibit Fat 205) She was discharged that day with visiting nurse care. Procedural History This matter was commenced by the filing of a Summons and Verified Complaint on May 23, 2019. The Answers of Rielly, Resnick and Nyack were filed on June 25, 2019, together with Page 3 of 11 [* 3] 3 of 11 FILED: ORANGE COUNTY CLERK 05/17/2021 03:34 PM NYSCEF DOC. NO. 92 INDEX NO. EF004132-2019 RECEIVED NYSCEF: 05/17/2021 vario';ls discovery demands. The Fischer Answer was filed on July 25, 2019, with his discovery demands. As is relevant to the instant motion, plaintifrs Verified Bill of Particulars was served on Fisher on August 21, 2019. (Exhibit E) There, plaintiff alleges, inter alia, that Fisher was careless, negligent, unskillful and departed from accepted standards of medical practice in failing to use due care; in failing to appreciate the medical significance of the extended duration of plaintifrs surgery, resulting in an increase in the time she spent in the dorsolithotomy position, thereby significantly increasing the risk of positional injury; in failing to appreciate the medical significance of surgeries lasting in excess of two (2) hours with a patient in the dorsolithotomy position and the resulting significant increased risk of positional injury; in failing to appreciate the medical significance of plaintifrs obesity and short stature as it relates to her increased risk of positional injuries while in the dorsolithotomy position during surgery in excess of two (2) hours; in failing to appreciate the medical significance of extended durations of time in the dorsolithotomy position and its association with significant increased risk of positional injury; in failing to recognize the need to reposition plaintiff after the conversion to laparotomy; in failing to recognize the inherent risk of positioning injuries to plaintifrs peroneal nerve; in failing to appreciate the medical significance of anesthesia related muscle relaxation and its association with positional related injury concerns; in failing to recognize the need to safeguard against positional injury during laparotomy; in failing to properly place padding in the stirrups; in failing to properly use the stirrups to prevent positional injury; and failing to prevent positional injury to plaintifrs right common peroneal nerve. Plaintiff alleged that, as a result of Fisher's negligence, she was caused to suffer injuries including a compression lesion to her right common peroneal nerve. severe right lower extremity Page 4 of 11 [* 4] 4 of 11 INDEX NO. EF004132-2019 FILED: ORANGE COUNTY CLERK 05/17/2021 03:34 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 05/17/2021 weakness, right foot drop, difficulty with ambulation, diminished light touch and paresthesia over calf and dorsal foot, etc. (Exhibit E) On July 21, 2020, plaintiff was deposed. (Exhibit G) On September 11, 2020, Resnick was deposed. (Exhibit H) Plaintiff waived the depositions of both Fisher and Rielly. The Note oflssue has not yet been filed. Resnick Deposition In relevant part, Resnick testified that it was his decision to place plaintiff in the modified dorsal lithotomy position for the laparascopic procedure. (Exhibit Hat 36) Specifically, Resnick stated that"once the anesthesia finishes with their part and gives me a go ahead then I start positioning the patient for my surgery." (Exhibit Ha~ 39) ' . ''There are two positionings that take place. The first one is for the induction of anesthesia, it's done by the nurses and anesthesiologist and the patient is completely supine . - . - . .. . . '' . . . ' . ' . . position ... Once the anesthesia is finished then I take-over and I do the entire positioning myself with assistance from.the circulating nurse." (Exhibit Hat 41.;42) Fisher's Motion for Summary Judgment (Sequence #1) .By Notice of Motion filed February 3, 2021, F~sher moves for summaryjudgment, asserting that there is no.triable issue of fact with respect to his care of plaintiff. Acknowledging that as the moyarit, he has the burden to establish the absence of a departure from good and accepted medical practice, or that plaintiff was not injured thereby, Fisher argues that he met that burden. In support, Fisher offers his own affidavit, in which he avers that he reviewed the deposition testimony of Resnick and agrees that, after his administration of anesthesia, Resnick Page 5 of 11 [* 5] 5 of 11 FILED: ORANGE COUNTY CLERK 05/17/2021 03:34 PM NYSCEF DOC. NO. 92 INDEX NO. EF004132-2019 RECEIVED NYSCEF: 05/17/2021 made the decision to place plaintiff into the modified dorsal lithotomy position for the laparascopic procedure. He further agrees that Resnick directed the positioning with the assistance of the circulating nurse and any repositioning of plaintiff performed.after the decision to convert the laparascopic procedure into an open procedure was also performed by Resnick. Resnick also repositioned the Allen stirrups used to support plaintiffs legs to a position he . preferred for the laparotomy. Fisher avers that, after the induction of anesthesia, he had no role or inputinto positioning or repositioning of plaintiff. After the conclusion of the March 14, 2018 surgery, Fisher had no role in plaintiffs medical care. In further support, Fisher appends the affirmation of Richard Smiley, M.D., a board~ certified anesthesiologist since 1986. In connection with this matter, Dr. Smiley reviewed the '( Fisher Affidavit, the pleadings and Bills of Particulars, plaintiffs hospital records and the depositions of plaintiff and Resnick. Dr. Smiley opines, to a reasonable degree of medical certainty, that Fisher acted within the accepted standards of medical care at all times during his involvement with plaintiffs March 14, 2018 surgery. He further opines that Fisher did not proximately cause plaintiff's alleged injuries. He notes Resnick's testimony that it was his ·(Resnick's) decision to place the plaintiff in the modified dorsal lithotomy position for the laparascopic procedure, which he did after Fisher finished the anesthesia induction process. He notes it was Resnick alone.who performed any repositioning of the plaintiff once he decided to convert the surgery to laparotomy and that Fisher had no input or role in positioning or repositioning plaintiff during the surgical _procedures. Resnick directed Fisher to call the blood bank to have blood sent after the surgeon decided to convert the procedure~ Page 6 of 11 [* 6] 6 of 11 FILED: ORANGE COUNTY CLERK 05/17/2021 03:34 PM NYSCEF DOC. NO. 92 INDEX NO. EF004132-2019 RECEIVED NYSCEF: 05/17/2021 Dr. Smiley avers that, as the anesthesiologist, Fisher had ho input into surgical ' . positioning of the plaintiffs lower extremities during the procedures, or any changes in positioning for and during the laparotomy. This is generally determined by surgeons, as Resnick's testimony confirms. The anesthesiologist directs the patient's positioning for the induction of anesthesia, once completed, the surgeon has control over positioning, unless a position affects the anesthetic, respiratory or cardiovascular status of the patient. In this matter, as . in most, positioning was within the sole and exclusive control and judgment of the surgeon. All of plaintiffs claims as to Fisher that reference positioning and repositioning are irrelevant to anesthesiology care. It is Dr. Smiley's additional opinion that risks associated with surgical positioning are neither relevant nor applicable to the anesthesiologist; nor are risks of blood loss. In this matter, Fisher properly recognized and administered blood as needed. The duration of the surgeries and risks associated with that duration are not in the province of the anesthesiologist, but are within the exclusive control and discretion of the surgeon. Dr. Smiley co~cluded that Resnick's deposition testimony confirms his opinions that Fisher's care was not a proximate cause of the injury to plaintiffs internal iliac vein, or the alleged sequelae. 'In short, Fisher acted in accordance with applicable standards of care at all times during his care and treatment of plaintiff, and no acts or omissions on Fisher's part were a proximate cause of plaintiffs alleged injuries. Fisher asserts that based on the deposition and affidavlt testim?ny and the opinions of Dr. Smiley, he _is entitled to summaryjudgment. Cross".'Motion and Limited Opposition (Sequence #2) By Notice of Cross-Motion filed March 9, 2021, Resnick, Highland Medical and Nyack Page 7 of 11 [* 7] 7 of 11 FILED: ORANGE COUNTY CLERK 05/17/2021 03:34 PM NYSCEF DOC. NO. 92 INDEX NO. EF004132-2019 RECEIVED NYSCEF: 05/17/2021 seek to amend their Verified Answers to include CPLR Article 16 as an affirmative defense. Defendants begin by stating that they object only to certain statements made in Fisher's Statement of Material Facts. The cross-moving defendants object to the inclusion of Fisher's and Smiley's opinions in the Statement of Material Facts (although not in their sworn statements), as they are opinions and not factual in nature. Otherwise, they do not oppose Fisher's motion for summary judgment. CPLR Article 16 is intended to remedy inequities created by joint and several liability against low-fault defendants and to protect against their payment of disproportionate shares of awards. If defendants' culpability is 50% or less~ their exposure should be limited to their share of fault. Plaintifrs Opposition to Cross-Motion Plaintiff argues that -the cross-moving defendants' ·failure to oppose Fisher's motion operates as a forfeit of their right to assert Article 16 defenses against Fisher. Since summary judgment is the functional equivalent of trial, the limit of liability afforded by Article 16 is not available as to a co-defendant who has been awarded summary judgment. Reply Fisher points out that neither plaintiff nor co-defendants oppose the granting of summary judgment to him. He agrees with plaintiff's assertion that the co-defendants' failure to oppose his motion forfeits their rights under Article 16. At the May 12, 2021 conference, plaintiff counsel voiced concern that, if the cross-motion were granted, defendant Resnick would then "point to an empty chair" at the time of trial. Counsel for defendant Resnick stated that she would not do so. Page 8 of 11 [* 8] 8 of 11 FILED: ORANGE COUNTY CLERK 05/17/2021 03:34 PM NYSCEF DOC. NO. 92 INDEX NO. EF004132-2019 RECEIVED NYSCEF: 05/17/2021 The Court has fully considered the.submissions of the parties. Discussion Summary Judgment Summary judgment is a drastic remedy, and is appropriate only when there is a clear demonstration of the absence of any triable issue of fact. (Piccirillo v. Piccirillo, 156 AD2d 748 [2d Dept 1989), citing Andre v. Pomeroy, 35 NY2d 361 [1974]) The function of the Court on such a motion is issue finding, and not issue determination. (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]) The Court is not to resolve issues of fact or to determine credibility, but merely to determine whether such issues exist (Kolivas v. Kirchoff. 14.AD3d 493 [2d Dept 2005]) The Court must draw all reasonable inferences in favor of the non-moving party. (Rizzo v. Lincoln Diner Corp., 215 AD2d 546 [2d Dept 1995]) Where there is any doubt about the existence of a material and triable issue offact,surnmaryjudgmentmust not be granted. (Anyanwu v.Johnson, 276 AD2d 572 [2d Dept 2000]) However, summaryjudgment shall be granted where, upon allthe papers and proofs, the cause of action or defense is sufficiently established to warrant the court as a matter of law, in directing judgment in favor of any party. (Zuckerman v. City ofNew York, 49 NY2d 557 [1980]) In a medical malpractice action, plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that this departure was the proximate cause of · plaintiffs injuries. (Stukas v. Streifer, 83 AD3d 18 [2d Dept 2011]) A defendant seeking summary judgment in a medical malpractice action bears the burden of making a prima facie showing that . . there was no departure from good and accepted medical practice, or that the plaintiff was not injured thereby~ (Id. at 24) A doctor or hospital establishes entitlement tojudgment by submitting the Page 9 of 11 [* 9] 9 of 11 FILED: ORANGE COUNTY CLERK 05/17/2021 03:34 PM NYSCEF DOC. NO. 92 INDEX NO. EF004132-2019 RECEIVED NYSCEF: 05/17/2021 affidavit. of a medical expert who opines, to a reasonable degree of medical certainty, that the doctor's examination and treatment of the plaintiff did not depart from accepted standards ofmedical practice; or that the plaintiff was not injured thereby. (Poter v. Adams, l 04 AD3d 925 [2d Dept 2013]; Shahid v. New York City Health & Hosps. Corp., 47 AD3d 800 [2d Dept 2008]) In the instant matter, defendant Fisher has made such a prima facie showing. Fisher presented the affidavit of Dr. Smiley regarding his pre-operative and intra-operative care of plaintiff, as well as the affidavit of Fisher himselfregarding his role and the performance of his duties. Fisher's sworn statement, combined with the affidavit of his expert, who opinedr to a reasonable.degree of medical certainty, that Fisher's care of plaintiff fell within the applicable standards of care at all times, and that no act or omission on Fisher's part contributed to plaintiffs alleged injuries, sufficiently demonstrate that Fisher was not negligent in treating plaintiff. This is bolstered by the testimony of Resnick, .who repeatedly stated that th~ decisions to position and reposition plaintiff were his alone, and that Fisher had no role. Neither plaintiff nor the co-defendants have raised any issues of fact in opposition to Fisher's position. On the basis of the foregoing, Fisher's motion for summary judgment is granted. Motion to Amend It is well-established that leave to amend a pleading should be freely granted where the proposed amendment is not palpably insufficient or patently devoid of merit and will not prejudice or surprise the opposing party. CPLR 3025(b) (Rodriguez v. Paramount Development Associates, LLC, 67 AD3d 767 [2d Dept 2009]) No party has suggested that any prejudice will inure should co- defendants amend their Answers to assert the protections of CPLR. Article 16. Plaintiff, in fact, suggests that she' would not oppose the motion, but for co-defendants' failure to oppose Fisher's Page 10 of 11 [* 10] 10 of 11 INDEX NO. EF004132-2019 FILED: ORANGE COUNTY CLERK 05/17/2021 03:34 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 05/17/2021 motion for summary judgment. It is well established that summary judgment is the procedural equivalent of trial. (Cape/in As ocs. v. Globe Mfg. orp. 34 Y 2d 338 (1974)) ' ince a motion for summary judgment is the functional equivalent of a trial , it fol lows therefrom that any defendant intending to obtain the limited liability benefits of CPLR article 16 based on the movant 's purportedprofessional negligence must, under penalty of forfeiture, adduce proof on point in admissible form in response to the prim a facie case presented. ' (Drookerv. South assau Communities Hosp., 175 Misc. 2d 181, 184 [Nassau Co. 1998)) (emphasis in original) The only opposition to this application has been by defendant Resnick is for a limited purpose. Defendant Resnick preserves objections to specific statements placed in the tatement of Facts portion of defendant Fisher' s submission arguing such statements are not fact but opinion. Other than that objection defendant Resnick offers no opposition warranting denial of the application. For that reason the motion of defendants Resnick, Highland Medical and Nyack is granted to the extent that their answer ma be amended to assert an Article 16 affirmative defense. However having failed to raise ore n submit triable issues of fact in response to the instant application, and upon agreement of counsel for the defendants defendants Resnick Highland Medical and yack are precluded from asserting any claims against defendant Fischer at the time of trial. This decision shall constitute the order of the Court. Dated: May I 4 202 I Goshen, New York ~~ HO.ANDRA B. CIORTINO J.S.C . To: Counsel of Record via NY. EF Page 11 of 11 [* 11] 11 of 11

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