Dobrovolskiy v Gottesman

[*1] Dobrovolskiy v Gottesman 2021 NY Slip Op 50660(U) Decided on July 12, 2021 Supreme Court, Kings County Fisher, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2021
Supreme Court, Kings County

Igor Dobrovolskiy, Plaintiff,

against

Lester Gottesman, M.D. and MADISON SURGICAL ASSOCIATES, P.C., Defendants.



Index No. 502419/2018



Attorneys for Plaintiff

Oleg Rybak, Esq.

Louis S. Desorbo, Esq.,

The Rybak Firm, PLLC

1810 Voorhies Avenue, Suite 7

Brooklyn, New York 11235

Attorneys for Defendants

Jonathan Michael Turnbaugh, Esq.

Hayley B. Newman, Esq.

Heidell, Pittoni, Murphy & Bach, LLP

99 Park Avenue, 7th Floor

New York, New York 10016
Pamela L. Fisher, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

Papers Numbered

Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed 1, 2

Opposing Affidavits (Affirmations) 3

Reply Affidavits (Affirmations) 4, 5, 6

Upon the foregoing papers in this medical malpractice action, defendants move, pursuant to CPLR § 3212, for summary judgment, dismissing plaintiff's complaint in its entirety, and directing the Clerk of the Court to enter judgment in favor of the defendants.

Plaintiff commenced this action by filing a summons and complaint on February 6, 2018 (Summons & Complaint, annexed as Exhibit C to defendants' motion papers; Defendants' Affirmation in Support ¶ 9). Issue was joined on March 15, 2018, and plaintiff served bills of particulars on June 14, 2018 (Id. at ¶¶ 9, 10; Answers annexed as Exhibit D to defendants' motion papers; Verified Bills of Particulars annexed as Exhibit E to defendants' motion papers). A supplemental bill of particulars was served on November 16, 2018 (Defendants' Affirmation in Support ¶ 12; Supplemental Verified Bill of Particulars, annexed as Exhibit G to defendants' motion papers). In his complaint and bill of particulars, plaintiff alleges that Dr. Gottesman departed from good and acceptable medical practice in his treatment of the plaintiff at Madison Surgical Associates, P.C. from February 12, 2016 through August 5, 2016 by "failing to take note of or adequately respond to plaintiff's manifested signs, symptoms and complaints," "negligently operating on the plaintiff," neglecting to obtain plaintiff's informed consent for the hemorrhoidectomy, and "fail[ing] to provide plaintiff with appropriate pre- and post-operative instruction and care" (Complaint ¶ 7; Verified Bill of Particulars as to Dr. Gottesman ¶ 1; Verified Bill of Particulars as to Madison Surgical Associates, P.C. ¶ 5; Defendants' Affirmation in Support ¶ 5). As a result of defendants' alleged malpractice, plaintiff is claiming to have sustained the following injuries: damage to sphincter muscle, continued bleeding, continued fecal leakage, pain, diarrhea, and embarrassment (Verified Bill of Particulars as to Dr. Gottesman ¶ 4).

The following facts are not in dispute. Plaintiff "developed rectal bleeding with bowel movements" during the summer of 2015 (Defendants' Affirmation in Support ¶ 16). He testified that he went to three proctologists, who diagnosed him with hemorrhoids, but did not undergo further treatment with any of these physicians (Id. at ¶¶ 16-18; Plaintiff's EBT tr. 37, lines 16-25; at 38, lines 9-12; at 34, lines 13-14; at 36, line 24-25, annexed as Exhibit H to defendants' motion papers). On August 25, 2015, plaintiff visited his primary care physician, Dr. George Faulk, who referred him to Dr. Gottesman, for treatment of his hemorrhoids (Id. at 30, lines 24-25; at 46, lines 14-16; at 55; lines 6-8; Defendants' Affirmation in Support ¶ 18). On September 2, 2015, plaintiff visited Dr. Gottesman, "complain[ing] of chronic bleeding, bright red blood, and prolapse of tissue" (Id. at ¶ 19; Certified Office Record of Dr. Gottesman at 3, annexed as Exhibit B to defendants' motion papers). Dr. Gottesman performed an anorectal examination, and a rigid proctoscopy, which revealed that plaintiff had a "left lateral prolapsing complex hemorrhoid with squamous metaplasia," and "two enlarged internal hemorrhoids at the right-side" (Defendants' Affirmation in Support ¶ 20). Dr. Gottesman discussed "several treatment options with [the] plaintiff," including "band[ing] the left lateral hemorrhoid, single-quadrant hemorrhoidectomy, and three-quadrant hemorrhoidectomy" (Id.). Plaintiff testified that he "researched the treatment options offered by Dr. Gottesman on the internet, and spoke to a friend who had undergone a hemorrhoidectomy" (Id. at ¶ 23; Plaintiff's EBT tr. 64, lines 6-16; at 65, line 25; at 66, lines 2-20). He also discussed the treatments again with Dr. Gottesman over the phone (Defendants' Affirmation in Support ¶ 23). In January 2016, plaintiff decided to undergo a three-quadrant hemorrhoidectomy (Id.).

On February 12, 2016, Dr. Gottesman performed the three-quadrant hemorrhoidectomy on the plaintiff at Madison Surgical Associates, P.C (Id. at ¶ 25). Before the procedure, plaintiff signed a form consenting to the procedure, and certifying that the risks, benefits, and alternatives of the procedure had been explained to him, and he "had been given the opportunity to ask questions" (Id.; Certified Office Record of Dr. Gottesman at 12-13). According to Dr. [*2]Gottesman's operative report, the procedure went smoothly, and all three hemorrhoids were "reduce[d]" (Defendants' Affirmation in Support ¶ 26; Certified Office Record of Dr. Gottesman at 24). The records document that Mr. Dobrovolskiy signed a post-operative instruction form on February 12, 2016 (Id. at 16; Defendants' Affirmation in Support ¶ 27). The form states that a "patient may experience unraveling of sutures, bleeding, and constipation" following the surgery (Id.). The form also indicates that patients should not take ibuprofen or other drugs without the surgeon's approval (Id.). Plaintiff was discharged home after the surgery (Plaintiff's EBT tr. 73, line 21). On February 13, 2016, plaintiff "presented to Lutheran Medical Center," "complain[ing] of difficulty urinating with suprapubic pain," "abdominal pain, constipation, mild abdominal distention, inability to pass gas, and mild nausea" (Defendants' Affirmation in Support ¶ 28). The records document that plaintiff was taking 400 mg ibuprofen, and he "refused a rectal examination," but there are no notations that indicate that he complained of rectal bleeding or fecal leakage during this hospital stay (Id. at ¶¶ 28-29). Mr. Dobrovolskiy was diagnosed with urinary retention and constipation, and a Foley catheter was inserted "to relieve his urinary retention" (Id. at ¶ 29). He "was discharged with a catheter in place," and "instructed to return to the surgeon who had performed the hemorrhoidectomy in two days" (Id.). On February 16, 2016, plaintiff returned to Madison Surgical Associates, and Dr. Jason Penzer removed the catheter (Id.). There are no complaints of fecal leakage or rectal bleeding documented in the records from February 16, 2016 (Id.).

Mr. Dobrovolskiy presented to Dr. Gottesman for four post-operative visits on February 24, 2016, March 31, 2016, May 6, 2016, and August 5, 2016 (Id. at ¶¶ 30-33). At the first visit, the records state that plaintiff complained of unraveling sutures, which were "removed by Dr. Gottesman, who noted that there was some swelling at the suture site and a skin tag" (Id. at ¶ 30). Plaintiff was directed "to follow up as needed" (Id.). At the March 31 visit, plaintiff complained of "some irritation and occasional bleeding," but there are no notes indicating that Mr. Dobrovolskiy complained of fecal leakage at this visit (Id. at ¶ 31). Dr. Gottesman performed an anorectal exam, which "revealed an open suture line and skin tag" (Id.). Dr. Gottesman recommended that plaintiff "maintain a high fiber diet, avoid soap," and "return in one month if his symptoms persisted" (Id.). On May 6, 2016, plaintiff "complained of some anal discomfort, but there are no documented complaints of fecal leakage or rectal bleeding" (Id. at ¶ 32). Dr. Gottesman performed a rectal examination at this visit, which showed "that the suture lines had almost healed" (Id.). The exam was "negative for bleeding and stool leakage" (Id.). At the August 5 visit, plaintiff complained of "painless bleeding," after riding a motorcycle from Florida to New York (Id. at ¶ 33). Dr. Gottesman's "examination revealed no active bleeding, and Mr. Dobrovolskiy refused to undergo a diagnostic proctoscopy" (Id. at ¶ 33). Dr. Gottesman told the plaintiff that "he may have episodic bleeding for another six months," and he should follow-up as necessary (Id.). Plaintiff never returned to Dr. Gottesman after this last visit, and he never subsequently treated with any other physician for his alleged rectal bleeding or fecal leakage (Id. at ¶¶ 33-34; Affidavit of Igor Dobrovolskiy dated September 10, 2020, annexed as Exhibit L to defendants' motion papers).

In support of their motion for summary judgment, defendants submit an expert affirmation from Dr. Douglas Held, M.D., a physician board certified in colorectal surgery, contending that Dr. Gottesman's treatment of the plaintiff was "in accordance with the standard of care," and did not proximately cause his "alleged injuries" (Defendants' Expert Affirmation ¶¶ 1, 6, annexed as Exhibit A to defendants' motion papers). Dr. Held's opinion is based on review [*3]of the pleadings, bills of particulars, deposition transcripts, medical records, and his own training and experience (Id. at ¶ 3). Dr. Held opines that Dr. Gottesman properly evaluated plaintiff's complaints at the September 2, 2015 visit by taking a medical history, and performing a digital anorectal exam and rigid proctoscope (Id. at ¶ 26). Dr. Held claims that the treatment options Dr. Gottesman discussed with the plaintiff were appropriate "based upon the history and physical examination," and that the risks of the procedures were effectively communicated to the plaintiff (Id. at ¶ 28). Dr. Held concurs with Dr. Gottesman's assessment that banding "would have only provided short term relief" "due to the size and stage of [plaintiff's] left prolapsing hemorrhoid," and that this hemorrhoid required surgical intervention (Id. at ¶ 27). Dr. Held disagrees with plaintiff's contention that Dr. Gottesman "failed to order or analyze or interpret diagnostic testing results prior to the hemorrhoidectomy" (Id. at ¶ 32). He affirms that the anorectal examination and rigid proctoscopy were the "necessary diagnostic examinations for assessing Mr. Dobrovolskiy's anatomy and hemorrhoids," and further testing was not required before the procedure, as plaintiff did not "experience any new symptoms," between his initial visit with Dr. Gottesman and the day the hemorrhoidectomy was performed (Id. at ¶¶ 32-33). Further, Dr. Held notes that the operative report indicates that the hemorrhoids were "inspected" "while the patient was sedated" before the surgery was performed (Id. at ¶ 33). Dr. Held maintains that the appropriate surgical technique was used during the procedure, and the "suturing" was also "within the standard of care" (Id. at ¶¶ 36-37). He states that "any unraveling of the sutures post-operatively" was due to their location; he explains that "[a]ny bowel movement or constipation in the rectum can cause the sutures to unravel" (Id. at ¶ 37). Dr. Held contends that the urinary retention plaintiff experienced following the surgery, is a "known complication," and not the result of malpractice (Id. at ¶ 42). He alleges that the post-operative instructions given to the plaintiff were adequate, and that Dr. Gottesman is not liable for plaintiff's failure to follow his instructions (Id. at ¶ 41).

Dr. Held concludes that plaintiff's alleged injuries, including damage to his sphincter muscle, continued bleeding, continued pain, and diarrhea, were not proximately caused by Dr. Gottesman's treatment (Id. at ¶ 43). Dr. Held explains that the "surgeon does not operate on the anal sphincter during a hemorrhoidectomy," and plaintiff has no medical evidence to support his claim that his sphincter muscle was damaged by the surgery (Id.). Dr. Held suggests that some pain and bleeding are normal post-operatively, and that no treatment was required for plaintiff's anal fissure on March 31, 2016, because the fissure was "expected to heal on its own" (Id. at ¶ 44). Further, he states that the records from May 6, 2016 reveal that the "suture lines had almost healed," and the records from August 5, 2016 indicate that there was "no active bleeding" (Id.). Dr. Held notes that plaintiff's three-day motorcycle trip from Florida to New York probably contributed to the "rectal discomfort" and bleeding he allegedly experienced following the trip (Id. at ¶ 45). Dr. Held affirms that none of the medical records document that plaintiff ever complained of fecal leakage, so there is no evidence to support this injury (Id.).

In opposition to defendants' motion for summary judgment, plaintiff submits a redacted expert affirmation from a physician board certified in general surgery, emergency surgery, and gastrointestinal surgery, who is also "Chief of Section of Colon & Rectal Surgery at a major Medical Center and a regional Hospital" (Plaintiff's Expert Affirmation ¶ 1, annexed as Exhibit 1 to plaintiff's opposition papers). This expert contends that the post-operative care rendered to the plaintiff by Dr. Gottesman deviated from the standard of care, and proximately caused his injuries (Id. at ¶ 4). Plaintiff's expert opinion is based on review of the bills of particulars, [*4]medical records, deposition transcripts, Dr. Held's expert affirmation, as well as his own examination of the plaintiff (Id. at ¶ 3). Plaintiff's expert opines that the three-quadrant hemorrhoidectomy "resulted in significant scarring in plaintiff's anus" (Id. at ¶ 4). This conclusion is based on plaintiff's expert's digital rectal exam (DRE), which was performed on April 26, 2021 (Id. at ¶ 6). Plaintiff's expert states that the exam "reveal[ed] increased sphincter tone, easily palpable sulcus (groove) at 6 o'clock corresponding to back side of anal canal, which elicits pain" (Id.). Further, he/she maintains that these findings are "the result of [unhealed] scar tissue formation in the anus post-surgery" (Id.). He/she explains that the "sulcus results in a loss of the muscle's ability to completely constrict the anus leading to leaking," and notes that leakage was observed during this examination (Id.). Plaintiff's expert indicates that a flexible anoscopy was performed, revealing an "extremely narrowed" and "deformed" anus and rectum "due to sulcus formation" (Id. at ¶ 7). Two assessments were performed (the Cleveland Clinic Incontinence Score and the Fecal Incontinence Quality of Life Instrument) (Id. at ¶ 8). Plaintiff's expert claims that these assessments revealed that plaintiff is still experiencing incontinence five years after the surgery (Id.). He/she suggests that Dr. Gottesman deviated from the standard of care by "fail[ing] to take remedial measures to try to correct the scarring in the anus, such as nitroglycerine ointment," and that this failure proximately caused plaintiff's fecal leakage and other injuries (Id. at ¶ 10). Plaintiff's expert also affirms that Dr. Gottesman departed from the standard of care by not conducting post-operative tests "to reveal the cause of the plaintiff's bleeding and discomfort following surgery," effectively "abandon[ing] the plaintiff" (Id. at ¶ 9). He/she suggests that an MRI, CT scan, anal manometry or anal ultrasound were necessary to determine the cause of the bleeding, pain, and unraveling of the sutures (Id.). He/she concludes that all of plaintiff's alleged injuries were proximately caused by Dr. Gottesman's departures from acceptable medical practice (Id. at ¶ 11).

In reply, defendants submit another expert affirmation from Dr. Held, who reiterates that Dr. Gottesman never deviated from the standard of care during his treatment of the plaintiff, and that no act or omission of his resulted in plaintiff's alleged injuries (Defendants' Supplemental Expert Affirmation ¶ 2). Dr. Held contends that any scarring that may have resulted from the hemorrhoidectomy is not "evidence of negligence," as "[s]carring is a known and unavoidable complication of most types of surgery" (Id. at ¶ 4). Dr. Held disagrees with plaintiff's expert's argument that the increased tone of the anal sphincter is causally related to plaintiff's fecal leakage (Id. at ¶ 5). Dr. Held explains that "increased tone means the muscle is tight," and therefore, if plaintiff had "increased tone of the anal sphincter," he would not be experiencing fecal leakage (Id.). Further, Dr. Held indicates that "[h]ypertonicity or increased tone of the anal sphincter" is often "the result of an anal fissure that has not healed" (Id. at ¶ 6). He suggests that anal fissures can be caused by "hard bowel movements," and that plaintiff likely had an anal fissure at the time of plaintiff's expert's examination due to a recent bowel movement (Id.). Dr. Held affirms that an anal fissure is consistent with plaintiff's "current complaint of rectal pain" (Id.). Dr. Held disputes plaintiff's expert's contention that nitroglycerin ointment should have been applied to correct plaintiff's scarring, as nitroglycerine ointment would "worsen fecal leakage in a patient experiencing this symptom," as the medication "causes the anal sphincter to dilate or relax" (Id. at ¶ 7). He suggests that plaintiff's expert's reliance on the Cleveland Clinic Incontinence Score and Fecal Incontinence Quality of Life Instrument, is misplaced, as these assessments are completely subjective (Id. at ¶ 8). He concludes that post-operative imaging studies were not necessary based on plaintiff's complaints, and notes that plaintiff refused a [*5]rectal examination at his last visit with Dr. Gottesman, which "limited" his "ability to diagnose and treat the plaintiff" (Id. at ¶ 10). Further, Dr. Held maintains that Dr. Gottesman never "abandoned" the plaintiff, as the records indicate that Dr. Gottesman told him to make an appointment for further treatment, if necessary, but plaintiff chose not to seek further treatment with Dr. Gottesman (Id. at ¶ 11).

To prevail on a cause of action for medical malpractice, the plaintiff must prove that defendant "deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries" (Stukas v. Streiter, 83 AD3d 18, 23 [2d. Dept. 2011]). On a motion for summary judgment, defendant must "make a prima facie showing that there was no departure from good and accepted medical practice or that the plaintiff was not injured thereby" (lulo v. Staten Is. Univ. Hosp., 106 AD3d 696, 697 [2d. Dept. 2013]). Once the defendant meets its burden, the burden then shifts to the plaintiff to "raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie showing" (Stukas, 83 AD3d at 24). If the defendant "makes only a prima facie showing that he or she did not deviate or depart from accepted medical practice, the plaintiff, in order to defeat summary judgment, need only raise a triable issue of fact as to the alleged deviation or departure, and need not address the issue of proximate cause" (Hayden v. Gordon, 91 AD3d 819, 821 [2d. Dept. 2012]). Conclusory allegations that are "unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat defendant physician's summary judgment motion" (Deutsch v. Chaglassian, 71 AD3d 718, 719 [2d. Dept. 2010]). Where the parties have submitted conflicting expert reports, summary judgment should not be granted; "[s]uch credibility issues can only be resolved by a jury" (Id.).

Here, defendants met their prima facie burden. Defendants' expert, Dr. Held, affirmed that the practice and procedures by the treating physician were within acceptable standards of medical practice, and that no act or omission of defendants proximately caused any injury to the plaintiff. Dr. Held explained that Dr. Gottesman performed the appropriate tests to diagnose plaintiff with hemorrhoids, recommended effective treatments to reduce the hemorrhoids, and obtained plaintiff's informed consent for the procedure. Dr. Held also maintained that Dr. Gottesman used the proper surgical technique, and complied with the standard of care during the post-operative appointments. Dr. Held's opinion constitutes competent evidence, in that it is based on the pleadings, bills of particulars, deposition transcripts, medical records, and his own training and experience.

In opposition, plaintiff produced an affidavit of merit from a physician board certified in general surgery, emergency surgery, and gastrointestinal surgery, attesting to departures from accepted standards of medical practice, and that these departures were a competent producing cause of the plaintiff's injuries. Plaintiff's expert opinion fails to raise a triable issue of fact, as it is conclusory, "devoid of analysis," and does "not address the specific assertions of [Dr. Held]" "with respect to the issues of malpractice and causation" (See Giampa v. Marvin L. Shelton, M.D., P.C., 67 AD3d 439, 439-40 [1st Dept. 2009]; Foster-Sturrup v. Long, 95 AD3d 726, 728 [1st Dept. 2012]; Abalola v. Flower Hosp., 44 AD3d 522, 522 [1st Dept. 2007]). Plaintiff's expert claims that Dr. Gottesman deviated from the standard of care by not ordering an MRI, CT scan, anal manometry or anal ultrasound, to determine the cause of plaintiff's bleeding, pain, and unraveling of sutures (Plaintiff's Expert Affirmation ¶ 9). However, the expert does not explain why these tests were necessary given Dr. Held's opinion that pain, bleeding, and unraveling of [*6]sutures are normal following a hemorrhoidectomy, and that plaintiff's anal fissure was expected to resolve on its own without further treatment (Defendants' Expert Affirmation ¶ 44) . Plaintiff's expert does not indicate what these tests would have revealed, or how they would have changed the treatment in this case (See Foster-Sturrup, 95 AD3d at 728-29]). Further, plaintiff's expert does not address Dr. Held's contention that the bleeding plaintiff reported at his last appointment with Dr. Gottesman was caused by his three-day motorcycle trip from Florida to New York (Defendants' Expert Affirmation ¶ 45). He/she also overlooks the fact that Dr. Gottesman offered the plaintiff a rectal examination at his last visit, but plaintiff "refused to undergo" the rectal examination (Defendants' Supplemental Expert Affirmation ¶ 10). Therefore, this alleged deviation from the standard of care is insufficient to defeat defendants' motion for summary judgment. The only other departure identified in plaintiff's opposition is Dr. Gottesman's failure to prescribe medication to correct plaintiff's anal scarring. This departure is insufficient to raise a triable issue of fact, as plaintiff's expert's conclusion that the anal scarring was caused by the surgery is based on "hindsight reasoning," "a reasoning back from the fact of injury to find negligence" (Montilla v. St. Luke's-Roosevelt Hosp., 147 AD3d 404, 407 [1st Dept. 2017]; Brown v. Bauman, 42 AD3d 390, 392 [1st Dept. 2007]). Further, plaintiff has failed to meet his burden on proximate causation, as there is no medical evidence to support the theory that the fecal leakage was caused by the surgery due to the length of time between the surgery and the examination conducted by plaintiff's expert, the absence of any notes regarding fecal leakage in the medical records, and the failure of the plaintiff to seek treatment for this complaint following his last visit with Dr. Gottesman (See Colwin v. Katz, 122 AD3d 523, 523-24 [1st Dept. 2014]). Defendants' motion for summary judgment is granted. The Clerk of the Court is directed to enter judgment in favor of defendants.

This constitutes the decision and order of the Court.

E N T E R:

__________________

Hon. Pamela L. Fisher

J.S.C.