Burke v Zelicof

[*1] Burke v Zelicof 2021 NY Slip Op 50431(U) Decided on May 14, 2021 Supreme Court, Bronx County Capella, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 14, 2021
Supreme Court, Bronx County

Peter J. Burke, Plaintiff,

against

Dr. Stephen Zelicof, Defendant.



23680/13



Plaintiff's Attorney

Pablo A. Sosa, Esq.

Queller, Fisher, Washor, et. al.

1250 Waters Place, Suite 708

Bronx, New York 10461

(718)892-0400

Defendant's Attorney

Christopher A. Terzian, Esq.

Martin Clearwater & Bell, LLP

245 Main Street

White Plains, New York 10601

(914)467-7779
Joseph E. Capella, J.

The following papers numbered 1 to 3 read on this motion, noticed on July 27, 2020, on the Motion Calendar of __________.

PAPERS NUMBERED

NOTICE OF MOTION AND AFFIDAVITS AND EXHIBITS 1

ANSWERING AFFIDAVIT AND EXHIBITS 2

REPLY AFFIDAVIT AND EXHIBITS 3

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THIS MOTION IS DECIDED AS FOLLOWS:

Defendant, Dr. Stephen Zelicof, moves for summary judgment (CPLR 3212) and [*2]dismissal of the instant complaint, which alleges two causes of action: medical malpractice and lack of informed consent. It is plaintiff's contention that defendant, who was in charge of plaintiff's total right knee replacement, was negligent in failing to remove a screw placed in his right femur years earlier that had become infected. By way of background, in 1999, plaintiff had a right knee high tibial osteotomy and anterior cruciate ligament reconstruction done by another physician. In 2010, to address his progressive right knee pain, defendant recommended a total right knee arthroplasty to be done in two steps: the first surgery will remove the plate and screws associated with the high tibial osteotomy, and the second will implant the right knee arthroplasty hardware. Plaintiff agreed, and on September 8, 2010, defendant removed the high tibial osteotomy plate, as well as four tibial screws associated with the plate. On November 17, 2010, defendant removed an ACL tibial screw, and inserted the total right knee replacement. Concerned about a possible infection, on January 7, 2011, defendant performed a wound debridement; however, a January 17 examination of the right knee found continued drainage and wound dehiscence. Later that month, on January 26, defendant removed the right knee implant, and placed an antibiotic spacer. Defendant noted on his operative report that one screw from an earlier healed ACL reconstruction, buried deep within the femur bone and not accessible, was left in place. After the surgery, an infectious disease consultant, Dr. Nadelman (who is deceased and was never deposed) assessed that plaintiff would require long-term antibiotic treatment.

On June 29, 2011, after concluding that the knee infection had resolved, defendant removed the antibiotic spacer, inserted a second total right knee arthroplasty, and removed the femoral screw. On July 14, Dr. Koch (plastic surgeon) drained the surgical site and prescribed antibiotics. On July 27, Dr. Koch performed excisional debridement and washout, and the Microbiology Department confirmed the presence of staphylococus aureus (a type of bacteria). On August 16, Dr. Aydin (M.D. at Westchester Medical) performed excisional debridement, dermal implant, and VAC dressing placement. On August 19, Dr. Koch performed excisional debridement and washout, gracillis muscle flap reconstruction, closure of wound, skin grafting and sponge dressing. Plaintiff's right knee continued to drain, and on March 30, 2012, lab work revealed a sedimentation rate of 88, and C-reactive protein >6.0. Suspecting an infection and possible osteomyelitis, on May 23, 2012, defendant removed the total right knee arthroplasty, and replaced it with an antibiotic spacer. Plaintiff continued to see defendant until August 29, 2013. On November 10, 2014, he underwent a third right knee surgery, but this one was done by Dr. Russinoff.

A summary judgment movant 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 325 [1986].) Therefore, as the movant, defendant must provide evidentiary proof in the form of expert opinions and/or factual evidence which establishes that he did not deviate from accepted standards of care and practice, and as such, his conduct was not a proximate cause of plaintiff's injuries. (Fileccia v Massapequa, 99 AD2d 796 [2nd Dept 1984]; affirmed 63 NY2d 639 [1984].) If he does, then the burden shifts to plaintiff to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial. (Alvarez, 68 NY2d 325.) Defendant includes an affirmation from Dr. Michael Bronson, a board certified orthopedic surgeon, and Dr. Bruce Farber, a board certified infectious disease expert, in support of his motion. Dr. Bronson opines that there was no reason to disturb healthy bone to remove a [*3]deeply embedded femoral screw that was not exposed to the operative site on November 17, 2010. Dr. Farber opines that plaintiff's knee infections were all due to his underlying diabetes and hypertension. Dr. Bronson also opines that removal of the femoral screw on January 26, 2011, would have been contraindicated and harmful to plaintiff because it would have disrupted the joint even further, would have created opportunity for infection to seed within the femoral bone, and would have increased the recovery time. He goes on to state that removal of the screw would require a new femoral component, which would then prevent placement of the antibiotic spacer. He also opines that defendant placed an appropriate size antibiotics spacer on January 26.

Dr. Bronson opines that reimplantation of a second knee implant on June 29, 2011, was appropriate because there was no evidence of infection. The wound cultures taken from the surgical site on June 29, which were negative for infection, confirmed that the earlier antibiotic treatment was successful. Dr. Bronson and Dr. Farber viewed various x-rays of plaintiff's femur, and none showed a tunnel between the femoral screw inside the femur to the right knee joint where the infection was. And since the femoral screw was surrounded by bone, it could not be the source of a seated infection. Both Dr. Bronson and Dr. Farber state that the femoral screw removed on June 29 could not be cultured for bacterial infection because it was made of metal. They also state that there was no reason to even attempt culturing because the screw was embedded and surrounded by healthy bone. Dr. Farber opines that removal of the femoral screw either on November 17, 2010, or January 26, 2011, would have required cutting into healthy bone for no reason, unnecessarily traumatizing the femur, and would have put plaintiff at risk for an osteomyelitic infection. Both Dr. Bronson and Dr. Farber note that Dr. Russinoff operated on plaintiff's noninfected knee joint on November 10, 2014, and plaintiff still ended up with a postoperative knee infection, which they attribute to plaintiff's underlying diabetes and hypertension. Dr. Bronson refutes the lack of informed consent allegation, arguing that the screw was not the source of infection, and so there was no reason to warn plaintiff that it was a risk for causing the right knee infection. Based on the aforementioned, defendant has established an entitlement to summary judgment (Zuckerman v City of NY, 49 NY2d 557 [1980]), thereby shifting the burden to plaintiff to show, inter alia, that defendant departed from accepted standards of practice (Kaffka v NY Hospital, 228 AD2d 332 [1st Dept 1996]).

In opposition, plaintiff provides notarized affidavits from a board certified orthopedist, Dr. Michael Belanger, and a board certified infectious disease expert, Dr. Christopher Lucasti. These experts do not address the following allegations that were included in the bill of particulars and refuted by defendant's experts: (1) informed consent as to the right knee arthroplasty in light of the retained femoral screw, (2) failure to inform plaintiff of the discussions had with Dr. Nadelman, who allegedly concluded that the retained formal screw was likely the seeded source of infection, (3) failure to inform plaintiff that infection could perpetuate due to the presence of a retained formal screw, even after administering antibiotics, (4) failure to inform plaintiff that as an alternative, the alleged infected formal screw could first be removed, and the infection treated before proceeding with re-implantation of knee hardware, and (5) placement of an incorrect size antibiotic spacer on January 26, 2011. Therefore, as to these alleged departures, there are no material issues of fact raised to preclude summary judgment, and they are dismissed accordingly (Alvarez v Prospect, 68 NY2d 320 [1986]; Neuman v Greenstein, 99 AD2d 1018 [1st Dept [*4]1984]).

Plaintiff's experts also allege the following new theories of liability: (1) failing to document the chart as to whether defendant considered and assessed that the retained screw was seeded with infection prior to the January 26, 2011, surgery, (2) failing to document the chart as to whether a risk/benefit analysis was done regarding retaining or removing the screw, (3) failing to obtain infectious disease consultation before the January 26, 2011, surgery, (4) failing to consider whether the retained screw had been seeded with infection as of the January 26, 2011, surgery, and (5) failing to follow Dr. Nadelman's treatment regimen, and not obtaining repeat lab work before the June 29, 2011, surgery. As these alleged departures were not included in the bill of particulars, they are improperly raised for the first time in opposition to defendant's motion (Sanchez v Steele, 149 AD3d 458 [1st Dept 2017]; Price v State, 119 AD3d 1192 [3rd Dept 2014]), and as such, cannot be considered by the Court.

Plaintiff's experts opine that defendant departed from good and accepted practice in not removing the seeded (emphasis added) femoral screw as part of the January 26, 2011, surgery that was undertaken to remove the infected arthroplasty. It should be noted that both plaintiff and defendant's experts agree that given plaintiff's underlying diabetes and smoking history, his vascular insufficiency placed him at a higher surgical risk of infection. In concluding that the femoral screw had become seeded with infection, plaintiff's experts rely on the infectious disease consult notes of Dr. Nadelman dated January 27 and 31, 2011. They both agree that the January 27 note states that plaintiff will require prolonged (6 weeks or more) IV course to cover recent isolates, followed by PO antibiotics, at least until new hardware is inserted, and possibly for long term in view of the retained screw. They also agree that the January 31 note states that plaintiff will require suppressive antibiotics until the spacer is removed and probably for prolonged (months to longer) course after new hardware in view of retained screw. Contrary to their suggestion, these notes do not state that Dr. Nadelman concluded that the retained formal screw was the likely seeded source of infection. Nor do the notes state that Dr. Nadelman recommended prolonged antibiotics due to or as a consequence of an infected formal screw. General allegations of medical malpractice that are merely conclusory and unsupported by competent evidence are insufficient to establish the essential elements of medical malpractice, and thereby create issues of fact. (Candia v Estepan, 289 AD2d 38 [1st Dept 2001].) Therefore, expert opinions as to proximate cause based on speculation or not supported by the evidence are likewise insufficient to establish malpractice. (Malot v Ward, 48 NY2d 455 [1979]; Bustos v Lenox Hill, 105 AD3d 541 [1st Dept 2013], affd. 23 NY3d 926 [2014].) Here, plaintiff's experts' belief that these notes are evidence that the femoral screw was the source of the infection is pure speculation. Indeed, Dr. Nadelman's note regarding the need for antibiotics could just as easily be construed to mean that he was suggesting the foregoing course in order to prophylactically guard against infection that is inherent in all surgeries.

Plaintiff also alleges that she had a conversation with Dr. Nadelman in January or February 2011, in which he told her that "one of the screws that was left in back from the ACL reconstruction in '99" is infected. There is no explanation as to how this hearsay statement, which does not appear in either of the consult notes, by the now deceased Dr. Nadelman (a nonparty who was never deposed) is admissible. Not only is this statement inadmissible hearsay, its admission would violate the Dead Man's Statute. (CPLR § 4519; In the Matter of Coons, 161 [*5]AD2d 930 [3rd Dept 1990].) On the other hand, hearsay statements that are not admissible at trial due to the Dead Man's Statute, may be used to defeat a summary judgment motion as long as it is not the only evidence offered in opposition. (Stankowski v Kim, 286 AD2d 282 [1st Dept 2001]; Silvestri v Iannone, 261 AD2d 387 [2nd Dept 1999].) In other words, could this hearsay statement, which would be inadmissible at trial, somehow be used here to supplement the consult notes to establish that it was Dr. Nadelman's opinion that the femoral screw was infected. And assuming for purposes of this discussion that one could, it would only beg the question as to what was the basis for such an opinion by Dr. Nadelman. (State v Dennis, 126 AD3d 537 [1st Dept 2015].) Dr. Nadelman did not assist defendant in the surgery, and although he spoke with defendant, we can only speculate that he reviewed one or more medical records. Defendant does not recall his conversations with Dr. Nadelman, but states that he would have told Dr. Nadelman that the infection did not come from the femoral screw because it was buried deep in the metaphysis, and there was no connection between the screw and the joint. Even allowing plaintiff's experts to rely on this hearsay statement by Dr. Nadelman, in addition to his consult notes, to opine that the femoral screw was the source of the infection is still speculative.

An expert's affirmation must not only avoid conclusory or speculative opinions, it must also meaningfully refer to and discuss the findings and conclusions of the opposing expert(s). (Reyes v Brito, 57 AD3d 395 [1st Dept 2008].) Here, plaintiff's experts do not address the points made by defendant's experts that the femoral screw was embedded within the right femur, not exposed to the infected knee joint, surrounded by healthy bone that had grown around it for more than ten years, and because of this, the infection could never reach the femoral screw. In addition to speculating that the femoral screw was infected based on Dr. Nadelman's notes, plaintiff's infectious disease expert states that plaintiff's vascular insufficiency could have caused an infectious seeding of the femoral screw. However, this does not address the primary issue, and that is what evidence is there to establish that the formal screw itself was infected. Defendant's experts reviewed numerous x-rays taken before and after January 26, 2011, and found the femoral screw embedded and surrounded by healthy femoral condyle bone, and there was no sinus tract or cortical tunnel extending from the screw to the knee joint to provide conduits for infection. Without addressing or rebutting these specific x-ray findings by defendant's experts (Reyes, 57 AD3d 395), plaintiff's experts state that they reviewed a single x-ray from January 26, 2011, and concluded that this sole x-ray does not rule out whether the screw had been infected. Opining that a single x-ray cannot rule out infection is not equivalent to opining, in direct contradiction to defendant's experts, that an infection existed on the femoral screw, so as to create issues of fact to warrant a trial on this alleged departure.

Plaintiff's experts allege that defendant departed from good and accepted practice in concluding that the right knee infection had resolved as of the June 29, 2011, surgery to reimplant the total knee arthroplasty. They assert that on June 29, when defendant proceeded with reimplantation of the arthroplasty and removal of the femoral screw, he could have swabbed the screw and send it for culture to determine whether it was seeded with infection. Following reimplantation, the infection once again manifested itself. Cultures collected July 27 grew staphylococcus aureus. Plaintiff's experts opine that defendant should have obtained repeated lab work closer to the June 29 surgery to assess whether the infection had cleared. According to defendant and his experts, a six week course of IV antibiotics was commenced January 26, 2011, [*6]as recommended by Dr. Nadelman, and lab results from March indicated that the infection had cleared. In April, Dr. Koch cleared plaintiff for surgery, and wound cultures taken from the joint space on June 29, revealed no evidence of infection. The final pathology results on the tissue and hardware removed during the June 29 surgery revealed no acute inflamation. Therefore, the suggestion by plaintiff's experts that defendant should have obtained repeated lab work closer to the June 29 surgery fails to address the fact that lab work from the day of the surgery revealed no infection.

Plaintiff's experts allege that defendant departed from good and accepted practice by removing the infected femoral screw within the same June 29, 2011, surgery to reimplant the total knee arthroplasty. And in connection with the earlier January 26, 2011, surgery, they allege that defendant failed to apprise plaintiff of the foreseeable risk that the femoral screw was a source of infection, and that failure to remove it could cause the infection to propagate. Lastly, they allege that in connection with the June 29, 2011, surgery, defendant failed to apprise plaintiff of the foreseeable risk that removal of the infected femoral screw and reimplantation within the same procedure risked propagation.

All three of these alleged departures are premised on the speculative assumption by plaintiff's experts that the femoral screw was infected. As previously discussed, the belief by these experts that Dr. Nadelman's notes are evidence that the femoral screw was the source of the infection is pure speculation. These experts also did not address the points made by defendant's experts that the femoral screw was not infected as it was embedded within the right femur, not exposed to the infected knee joint, and surrounded by healthy bone that had grown around it for more than ten years. Lastly, they did not address the fact that lab work taken from the day of the June 29 surgery revealed no infection. Therefore, based on the aforementioned, defendant's motion for summary judgment is granted and this action is dismissed accordingly.

Defendant is directed to serve a copy of this decision/order 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.

Dated: May 14, 2021

Hon. Joseph E. Capella, J.S.C.