Crespo v Francini

[*1] Crespo v Francini 2023 NY Slip Op 50912(U) Decided on August 29, 2023 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 29, 2023
Supreme Court, Bronx County

Angel Crespo, Plaintiff,

against

Thomas Francini, D.P.M., JOHN DEBELLO, D.P.M., NEW YORK FOOTCARE OF THE BRONX, PLLC, and CONCOURSE FOOTCARE, P.C., Defendants.



JOHN DEBELLO, D.P.M., and NEW YORK FOOTCARE SERVICES, PLLC, s/h/a NEW YORK FOOTCARE OF THE BRONX, P.C., Third-Party Plaintiffs,

against

THOMAS FRANCHINI, D.P.M., Third-Party Defendant.



Index No. 21281/13


Plaintiff's Attorney
Valentine J. Wallace, Esq.
BURNS & HARRIS ESQS.
233 Broadway, Suite 900
New York, New York 10279
(212)393-1000

Dr. Franchini's Attorney
Joseph Randazzo
HEIDELL, PITTONI, MURPHY & BACH, LLP
1050 Franklin Avenue, Suite 408
Garden City, New York 10016
(516)408-1600 Joseph E. Capella, J.

The following papers numbered 1 to 4 read on this motion dated November 21, 2022.

PAPERS NUMBERED
NOTICE OF MOTION & MEMO OF LAW 1 - 2
ANSWERING AFFIRMATION 3
REPLY AFFIRMATION 4

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

Motion by third-party defendant, Thomas Franchini, D.P.M., for summary judgment (CPLR 3212) and dismissal of plaintiff's complaint is granted in part.[FN1] There are three causes of action enumerated in the complaint; however, jumbled into the first cause of action are claims of negligence, malpractice, allegations of "wanton, reckless, heedless, and wilful" conduct (i.e., gross negligence), and vicarious liability. Repeated throughout the second cause of actions are words such as hazards, perils, risks, complications, examinations, evaluations, diagnoses, consultations, procedures, tests, studies, services and advice. And repeated throughout the third cause of action are words such as fit, suitable, qualified, skilled, trained, supervised, regulations, guidelines, procedures, policies and protocols. Despite the complaint's verbosity, the second cause of action appears to be one for lack of informed consent, and the third cause of action appears to be negligent hiring and supervision.

Overall, it is not entirely clear whether plaintiff intends to establish three causes of action or six (i.e., negligence, malpractice, gross negligence, vicarious liability, lack of informed consent, and negligent hiring/supervision). It should be noted that this hodgepodge approach to the pleadings is inconsistent with the CPLR's requirement that pleadings shall be sufficiently particular to give notice of the transactions and occurrences to be proved and the material elements of each cause of action (§ 3013), and shall consist of plain and concise statements with separately stated causes of action (3014). It also makes it difficult to succinctly analyze the issues raised in a summary judgment motion. Despite these issues, Dr. Franchini still seeks summary judgment relief.

Primarily this action sounds in podiatric malpractice, specifically plaintiff alleges that New York Foot Care (NY Foot Care), Dr. DeBello and Dr. Franchini departed from the standard of care in their pre/post operative care and their performance of a surgery on March 9, 2011, to remove a neauroma from the interspace between plaintiff's 4th and 5th toes. According to plaintiff, the departures resulted in a recurrent/stump neuroma, altered gait, elevation, numbness/stiffness of toes 2-5, and injury to the knee and shoulder. In addition, as Dr. Franchini was not an employee of NY Foot Care, but worked there as an independent contractor, NY Foot Care and Dr. DeBello commenced a third-party action against Dr. Franchini asserting claims of contribution and indemnification.

On March 28, 2013, plaintiff was examined by Dr. David Plotkin, an expert retained by plaintiff who performed x-rays and ultrasound studies, and found a "[m]ass on the ultrasound, consistent with neurofibrous lesion consistent with pain on palpation." Dr. Franchini never received the x-rays and ultrasound, and on August 23, 2022, his spoliation motion was granted to the extent that this Court found that Dr. Plotkin had negligently disposed of said diagnostic [*2]images. Plaintiff was precluded from producing said images either at trial or in support of a summary judgment motion, and an adverse inference (i.e., that the ultrasound did not reveal a neurofibrous lesion) was ordered to be drawn.

The initial burden is on Dr. Franchini to make a prima facie showing of an entitlement to summary judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v Prospect, 68 NY2d 320 [1986].) 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 320), and denial of summary judgment. In support of the motion is an expert affidavit by Larry Silver, D.P.M., and an expert affirmation by Dr. Samuel Rapoport, who is board certified in psychiatry and neurology. Both opine to a reasonable degree of medical certainty that the care and treatment rendered by Dr. Franchini was appropriate and met the standard of care, and no act or omission on Dr. Franchini's part proximately caused any of the injuries alleged.

According to Dr. Silver, plaintiff was properly managed with conservative treatment, which included steroid injections and orthotics, before resorting to surgery. Dr. Silver opines that the selection and performance of the surgery on March 9, 2011, via the plantar approach to remove the neuroma was appropriate, and plaintiff was properly advised to remain non-weight bearing afterwards. Dr. Silver notes that plaintiff did not have a neuroma or any complaints of pain the last time he saw Dr. Franchini on March 14, 2011. In addition, an MRI from July 10, 2012, revealed no evidence of a neuroma. Dr. Silver notes that recurrent neuroma is a remote risk of the procedure that did not have to be disclosed in an informed consent discussion. He also points to plaintiff's pre-existing neurological and spinal conditions as well as plaintiff's career ending fall from a tow truck at work that resulted in right knee, spinal, and left elbow/shoulder injuries as the proximate cause of the injuries alleged in this action.

Dr. Rapoport's neurological opinion is that the care and treatment provided by Dr. Franchini, including the neuroma excision, was appropriate and within the standard of care, and the alleged injuries are not the result of anything Dr. Franchini did or not do. Dr. Rapoport also opines that plaintiff's alleged injuries were proximately caused by his pre-existing neurological and spinal conditions, and his career ending work accident. He also notes that plaintiff's nerve conduction studies revealed an unrelated bilateral peripheral neuropathy involving three nerves located in the leg and ankle, not the sensory nerve located near the toes.

On the issue of informed consent, Dr. Franchini testified that he discussed the risks, benefits and alternatives before and again on the day of the surgery. (Orphan v Pilnik, 66 AD3d 543 [1st Dept 2009].) And as previously mentioned, Dr. Silver stated that recurrent neuroma is a remote risk that did not have to be disclosed in an informed consent discussion. On the issue of vicarious liability and negligent hiring/supervision, Dr. DeBello testified that Dr. Franchini was not an employee of NY Foot Care, and Dr. Franchini testified that he was an independent contractor. (Kleeman v Rheingold, 81 NY2d 270 [1993].) In addition, Dr. Franchini testified that Dr. DeBello and NY Foot Care did not exercise any control over the care and treatment he provided. (Santella v Andrews, 266 AD2d 62 [1st Dept 1999].) Based on the aforementioned, the Court is satisfied that Dr. Franchini has met his burden for summary judgment (Zuckerman v City of NY, 49 NY2d 557 [1980]; Kaffka v NY Hospital, 228 AD2d 332 [1st Dept 1996]), which now shifts to plaintiff.

In opposing the opinions by Dr. Silver and Dr. Rapoport, plaintiff must come forward with a qualified expert who can, inter alia, opine to a reasonable degree of medical certainty that Dr. Franchini departed from the standard of care, (Canter v Mulnick, 93 AD2d 751 [1st Dept 1983]), and (emphasis added) that such departure was a proximate cause of plaintiff's injuries. (Mortensen v Memorial, 105 AD2d 151 [1st Dept 1984].) Included in plaintiff's opposition papers is an expert affidavit by David Plotkin, D.P.M., who states that conservative treatment with sclerosing alcohol injections to relieve inflamation and harden or deactivate the nerve is the standard first treatment, and has a high success rate, with invasive excision surgery being the last resort when non-surgical intervention fails. Dr. Plotkin opines that instead of receiving a steroid injection and then proceeding directly to surgery, plaintiff should have received three sclerosing alcohol injections over a three-week period to see if this relieved inflamation, deactivated the nerve, and eliminated pain, so that surgical intervention might not be necessary. He also opines that Dr. Franchini's omission of necessary information (e.g., location and size of neuroma) in the operative report was a departure from good and accepted practice; however, he does not explain how this omission caused any of plaintiff's injuries.

Dr. Plotkin opines that Dr. Franchini departed from good and accepted practice in using the plantar surgical approach (i.e., cutting through the sole of the foot) because there are more sensory nerves on the sole, and a surgical wound closed with sutures on the sole will require more non-weight bearing time, will be more prone to dehiscence and infection and will have more difficulty healing. According to Dr. Plotkin, a dorsal approach (i.e., from the top of the foot) allows the use of a spreader to widen the interspace and fully visualize and explore both branches of the nerve with a hemostat or surgical forceps, where he believes there were "most likely two neuromas." Dr. Plotkin also states that he examined plaintiff on April 4, 2013, and "plapated what he believes to be an unexcised neuroma in the third interspace."

Dr. Plotkin alleges that there were two neuromas in the 3rd interspace of plaintiff's left foot on March 9, 2011, and that only one was excised by Dr. Franchini. However, plaintiff's bill of particulars only alleged that defendants failed to completely excise the neuroma, and that a stump or recurrent neuroma developed. The bill of particulars does not allege that defendants failed to remove one of two neuromas, and plaintiff cannot create issues of fact by alleging this new theory of liability for the first time in opposition to a summary judgment motion. (Stewart v Dunkleman, 128 AD3d 1338 [4th Dept 2015].) In addition, Dr. Plotkin does not address the fact that the MRI from July 10, 2012, revealed no evidence of a neuroma. Lastly, as previously mentioned, there is an adverse inference that the ultrasound from March 28, 2013, did not reveal a neurofibrous lesion. So not only does the allegation by Dr. Plotkin that there existed two neuromas on March 9 not appear in plaintiff's bill of particulars (Vega v Kirschenbaum, 209 AD3d 458 [1st Dept 2022]), it cannot be reconciled with the 2012 MRI or the ultrasound adverse inference, and it is essentially speculative.

Dr. Plotkin further opines that Dr. Franchini departed from good and accepted practice in not placing the severed nerve ending in the belly of the interserrous muscle and secure it with a vicryl stitch so that any further nerve growth is directed away from the interspace and harmlessly into the muscle. He states that this is a prophylactic measure to prevent the formation of a 'stump' neuroma at the severed end of the nerve, and it is not acceptable practice to omit this step. Lastly, he opines that plaintiff's post-operative care was inadequate as it consisted of one [*3]appointment five days after surgery and another four months; however, Dr. Plotkin does not provide any specificity as to what would have been more appropriate. In sum, the Court is satisfied that plaintiff has raised issues of fact as to three departures. First, that Dr. Franchini departed from good and accepted practice in not administering three sclerosing alcohol injections over a three-week period to relieve inflamation, deactivate the nerve and eliminate pain, and avoid surgical intervention. Second, in using the plantar surgical approach that requires more non-weight bearing time, is more prone to dehiscence and infection, and results in more difficulty in healing. Third, in not placing the severed nerve ending in the belly of the interserrous muscle and secure it with a vicryl stitch so that any further nerve growth is directed away from the interspace and harmlessly into the muscle.

In his reply affirmation, Dr. Franchini's attorney argues that Dr. Plotkin's opinions regarding the administration of three sclerosing alcohol injections over a three-week period prior to surgery, and the use of a dorsal versus plantar approach are without basis in podiatric medicine, and as such necessitates a Frye hearing. According to this affirmation, an April 10, 2020-issue of the Journal of Clinical Orthopaedics and Trauma states that a "Neuroma can be excised by two methods, either a dorsal or plantar approach . . . However, no studies have proven benefit over one or the other." And a January 23, 2019-issue of EFORT Open Reviews - European Federation of National Associations of Orthopaedics and Traumatology states that "Alcohol injections have only been shown to be effective in 30% of patients after five years." Counsel argues that these articles show that Dr. Plotkin's opinions warrant a Frye hearing. Setting aside the fact that this medical challenge is not raised by a medical expert, the Court will undertake a quick review of when a Frye hearing is warranted.

Under the test enunciated in Frye, which is the standard applied in New York courts, a proponent of novel science must establish its general acceptance among scientists within the relevant discipline to justify its admission. (293 F 1013; People v Angelo, 88 NY2d 217 [1996].) This test ensures that courts do not rely upon an expert's testimony regarding a novel theory or procedure unless it has been generally accepted within the relevant scientific community as leading to reliable results, and essentially distinguishes between principles which are "demonstrable" versus "experimental." As noted by Justice Saxe, since Frye entails a process of weighing the views of each side's experts, some trial courts are erroneously tempted to weigh the relative merits of each expert's testimony to determine reliability; however, the court's function is not to decide which expert's conclusion is correct. (Marsh v Smyth, 12 AD3d 307 [1st Dept 2004].) Competing expert theories as to causation or the mechanism of an injury do not warrant a Frye hearing, but entails a weighing of the evidence that falls within the domain of the jury. (Barnett v Fashakin, 85 AD3d 832 [2d Dept 2011]; Frye v Montefiore, 70 AD3d 15 [1st Dept 2009].) To hold a hearing in this context would simply provide the defendants with an extra opportunity to cross-examine plaintiff's expert and pinpoint perceived weaknesses. (Marsh, 12 AD3d 307.) An appropriate Frye challenge exists when the expert's theory of causation finds no objective support, and instead is based solely on the expert's own unsupported beliefs.

The limited question to address at a Frye hearing is whether the expert's opinion properly relates existing data, studies or literature to the plaintiff's situation, or whether it is connected to existing data only by the ipse dixit of the expert. (General Electric v Joiner, 522 US 136 [1997].) The medical articles referred to in the reply affirmation do not demonstrate that Dr. [*4]Plotkin's opinions are novel or experimental, but instead demonstrate the different approaches used within the podiatric medical community to treat a neuroma. Plaintiff and Dr. Franchini have provided expert affidavits/affirmations that assert diametrically opposed opinions, which engenders a weighing of the evidence that is outside the scope of this Court's function in performing a Frye analysis. (People v Wesley, 83 NY2d 417 [1994].) And Frye and its progeny cannot be given an overly broad reading that would remove this issue from the jury's province.

As for informed consent, plaintiff argues that defendants' failure to produce a signed consent form creates an issue of fact on this issue. However, in addition to the initial arguments raised by Dr. Franchini regarding informed consent, plaintiff testified that he did not recall the details of the surgical discussion, but conceded that Dr. Franchini explained the procedure and post-op instructions. There is also the operative report which notes that "risks, benefits and alternatives to the procedure were discussed." Therefore, the mere lack of a written consent form, in and of itself, does not create an issue of fact on this issue. There still remains the issue of vicarious liability, and on this issue, it should be noted that Dr. DeBello is the owner of NY Foot Care. According to plaintiff's attorney, plaintiff could have reasonably believed based on the surrounding circumstances that Dr. Franchini was provided to him by NY Foot Care, or was otherwise acting on behalf of NY Foot Care. Hence, NY Foot Care and Dr. DeBello may be held vicariously liable on the theory of agency/control in fact, or in the alternative theory of apparent/ostensible agency (Hill v St. Clare's, 67 NY2d 72 [1986]).

As previously mentioned, Dr. Franchini testified that he was an independent contractor, and that Dr. DeBello and NY Foot Care did not exercise any control over the care and treatment he provided. (Santella, 266 AD2d 62.) This eliminates vicarious liability on the theory of agency/control in fact (Kleeman, 81 NY2d 270), and plaintiff's reference to Dr. DeBello's name appearing on the operative report, in and of itself, does not overcome this finding. On the other hand, where control is absent, then liability may still exist under the theory of apparent/ostensible agency, which focuses on whether plaintiff could have reasonably believed based upon the surrounding circumstances that Dr. Franchini was provided to him by NY Foot Care or Dr. DeBello, or was otherwise acting on their behalf. (Thurman v United, 39 AD3d 934 [3d Dept 2007].) The parties have come forward with very little evidence on this issue, except for a few statements from plaintiff's deposition.

At his deposition, plaintiff was asked the following: "The foot doctor, on Grand Concourse, Dr. DeBello and Dr. Franchini, their office is called New York Foot Care, that is the name of their office." And plaintiff answered: "I don't know the name." Later plaintiff was asked: "Did someone refer you to Dr. Franchini and Dr. DeBello?" And he answered: "My wife." On this brief line of questioning it does not appear that plaintiff intended to go specifically to NY Foot Care. And while it is clear that he intended to see Dr. Franchini and Dr. DeBello, we do not know what was plaintiff's belief as to the relationship between these two doctors. In other words, if plaintiff believed that Dr. Franchini was employed by Dr. DeBello, then he has a good argument to support a claim for vicarious liability under a theory of apparent/ostensible agency. This issue of fact warrants denial of summary judgment regarding same.

Given the aforementioned, that portion of Dr. Franchini's motion for summary judgment which seeks dismissal of the three departures previously mentioned (i.e., not administering three [*5]sclerosing alcohol injections over a three-week period, using the plantar surgical approach, and not placing the nerve ending in the interserrous muscle) and vicarious liability is denied. The balance of the motion is granted. Dr. Franchini is directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.

Dated 8/29/23

Hon._________/S/_______________
Joseph E. Capella, J.S.C. Footnotes

Footnote 1:Plaintiff failed to properly and timely serve Dr. Franchini; therefore, plaintiff's direct claims against Dr. Franchini were dismissed by Order dated December 23, 2014.