McCue v Weissberg 2011 NY Slip Op 30471(U) February 2, 2011 Supreme Court, Suffolk County Docket Number: Judge: Ralph T.

Transcription

1 2011 NY Slp Op 30471(U) February 2, 2011 Supreme Court, Suffolk County Docket Number: Judge: Ralph T. Gazzllo Republshed from New York State Unfed Court System's E-Courts Servce. Search E-Courts ( for any addtonal nformaton on ths case. Ths opnon s uncorrected and not selected for offcal publcaton.

2 [* 1] SHORT FORM ORDER NDEX No. CAL. No MM PRESENT: SUPREME COURT - STATE OF NEW YORK LA.S. PART 6 - SUFFOLK COUNTY Hon. RALPH T. GAZZLLO Actng Justce of the Supreme Court X BARBARA McCUE, as thb Attorney-n-fact FRANCES CALLAN, / - agan*- Plantff, for DAVD J. WESSBERG, L.D., DAVD 1. WESSBERG, M.D., P.C.,lMCHAEL PATRCK LESLE, D.O., "JOHN/JA~m DOE, M.D." (Frst and Last Name beng fcttous), HUNTNGTON HOSPTAL ASSOCATq>N, MAUREEN M. ORSEN, M.D., and ST. JQHNLAND NURSNG CENTER, N,. MOTON DATE 1/6/11 (#001) MOTON DATE 1/6/11 (#002) ADJ. DATE 2/3/11 Mot. Seq. # MG Mot. Seq. # MG DUFFY & DUFFY, ESQS. Attorney for Plantffs 1370 Rex Corp. Plaza Unondale, New York MCHENRY, HORAN & LAPPNG, P.C. Attorney for Defendant Wessberg 6800 Jercho Turnpke, Sute 202E Syosset, New York SANTANGELO & SLATTERY, ESQS. Attorney for Defendants Lesle 1800 Northern Boulevard Roslyn, New York FUREY, FUREY, LEVERAGE, P.C. Attorney for Defendant Orsen 600 Front Street, P.O. Box 75c.J". Hempstead, New York FUREY, KERLEY, WALSH, MATERA ET AL Attorney for Defendant Huntngton Hosptal 2174 Jackson Avenue Seaford, New York Defendants X Upon the followng pa~ers numbered 1 to ~read on ths moton and cross moton for summary judgment; Notce of Moton! Order to Show Cause and supportng papers (001) 1-16 ; Notce of Cross Moton and supportng papers (002) ; Answerng Affdavts and supp.ortng pa'p~r~_; Replyng Affdavts and supportng papers _; Other _; (ad ahel hell;)ng eotl!sel n!supportand oppo!sedto the motlou) and t S~ ORDERED that t~s moton (001) by the defendant Huntngton Hosptal and ths cross moton (002) by by the defendant Mchael atrck Lesle, D.O., are consoldated for purposes of ths determnaton; and t s 1 ORDERED that th~s moton (001) by the defendant Huntngton Hosptal s/h/a Huntngton Hosptal Assocaton for an order p~rsuant to CPLR 3212 grantng summary judgment dsmssng plantffs complant and all cross clams assert~d aganst t s granted to the extent that the complant s dsmssed wth prejudce, and that part of the moton! whch seeks dsmssal of any cross clams asserted aganst s dened ass~cade. n that Huntngton Hosptal ~as not submtted any answers wth cross clams aganst t; and t s furt.

3 [* 2] ndex No Page NO.2 ORDERED that ths moton (002) by the defendant Mchael Patrck Lesle, D.O. for an order pursuant to CPLR 3212 grantng suntmary judgment dsmssng plantffs complant and all cross clams asserted aganst hm s granted to the extent ~hat the complant s dsmssed wth prejudce, and that part of the moton whch seeks dsmssal of any cros~ clams asserted aganst hm s dened as academc n that Dr. Lesle has not submtted any answers wt~ cross clams aganst hm. The plantff, Barbafa McCue, has commenced ths medcal malpractce acton n her capacty as the sster of, and the Attorney-n-Fact for, Frances Callan, havng been apponted on February 7, Ths acton s pr~msed. ~pon the allege~ neglgence. of defenda~ts, lack of nformed conse.nt, and vcarous l~ablty and neglgent hmng by the defendants Huntmgton Hosptal and S1. Jolmland Nursmg Center and ther employees and agents. t s clamed thht commencng on or about January 13,2007 through on or about February 27, 2007, Frances Callan was a pate9t under the care and treatment of the defendants heren and that the defendants neglgently faled to dagnose and properly repar and treat a complex rght hp and femur fracture, faled to nsert the correct hardware, faled to properly affrm satsfactory stablty of the hardware after nserton, faled to tmely and properly dagrose and treat hardware breakdown, and otherwse departed from accepted standards of care causng her to sustar permanent njury. The defendant Huntfngton Hosptal seeks summary judgment dsmssng the complant and all crossclams asserted aganst t on the bases that t dd not devate from the standard of care durng the treatment of Frances Callan, that Francef Callan was the patent of her prvate attendng physcan Dr. Davd Wessberg, and ~h~tt.he care and treatment ]endered at the hosptal by ts employees dd not cause or contrbute to the plantffs njunes. The defendant Mc~ael Patrck Lesle, D.O., seeks summary judgment dsmssng the complant and all cross clams asserted agan~t hm on the bases that he was a resdent durng the perod of tme relatve to the care and treatment rendere9 to Frances Callan; that he asssted the attendng physcan and dd not exercse any ndependent med~al judg~~nt; and that the care ~nd treatm~nt dre~ted by the treatng physcan dd not devate from normal practce wher1m he should be held lable for falure to mtervene, and, therefore, he cannot be held lable for the alleged neglgence heren.. The proponent of a ~ummary judgment moton must make a prma face showng of enttlement to Judgment as a matter of lavy, tenderng suffcent evdence to elmnate any materal ssues of fact from the case. To grant summary judgme1t t must clearly appear that no materal and trable ssue of fact s presented (Sllman v Twenteth Centrry-Fox Flm Corporaton, 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the ntal burden of provn~ enttlement to summary judgment (Wnegrad v N..Y. U. Medcal Center, 64 NY2d 851,487 NYS2d 316 [198 ]),Falure to make such a showng requres denal of the moton, regardless of the 1 suffcency of the opposn~lpapers (Wnegrad v N..Y. U. Medcal Center, supra). Once such proof has been offered, the burden then sh~fts to the opposng party, who, n order to defeat the moton for summary judgment, must proffer evdence n adrssble form...and must "show facts suffcent to requre a tral of any ssue of fact" The hospt~ecord ndcates that ths sxty-sx yea,. old lady suffered a traumatc bran njury four years ago, resultng n basal skull fractures wth subdural hematoma and bfrontral t and btemporal ntr~parenchymal hemorrhages, followed by good recovery wth resdual mld cogntve defcts ~d probable focal motor sezures. She was fully functonal wth a sporadc gat nstablty. Sh9 presented to Huntngton Hosptal, status post fall whch resulted n a rght hp fracture for Whr surgery was performed on January 14,2007.

4 [* 3] ndex No Page NO.3 (CPLR 3212[b]; Zucker~ar v Cty.0fNe": York, 4~ NY2d 557, 427 NYS~d 595. [198.0]). The 0'pposn~ ~arty must present facts suffcen~ to requre a tnal of any ssue of fact by producmg evdentary proof admssble form (Joseph P. Day Realt1 Corp. v Aeroxon Prods., 148 AD2d 499,538 NYS2d 843 [2 nd Dept 1979D and must assemble, lay bare an1 reveal hs proof n order to establsh that the matters set forth n hs pleadngs are real and capable of beng e~tablshed (Castro v Lberty Bus Co., 79 AD2d 1014,435 NYS2d 340 [2 nd Dept 1981D. Summary judgme~t shall only be granted when there are no ssues of materal fact and the evdence requres the court to drect a judgment n favor of the movant as a matter of law (Frends of Anmals v Assocated Fur Mfrs., 461Y2d 1065,416 NYS2d 790 [1979]).. The requste elements of proof n a medcal malpractce acton are (1) a devaton or departure from accepted practce, and (2) erdence that such departure was a proxmate cause of njury or damage (Holton v Spran Brook Manor Nur~ng Home, 253 AD2d 852, 678 NYS2d 503[2nd 1998], app dened 92 NY2d 818, 685 NYS2d 420 [1999]). ~o prove a prma face case of medcal malpractce, a plantff must establsh that defendant's neglgence wa~ a substantal factor n producng the alleged njury (see, Derdaran v Felx Contractng Corp., 51 NY d 308, 434 NYS2d 166 [1980]; Prete v Rajla-Demetrous, 221 AD2d 674, 638 NYS2d 700 [2 1 nd 1996]). Efcept as to matters wthn the ordnary experence and knowledge of laymen, expert medcal opnon s necess~ to prove a devaton or departure from accepted standards of medcal care and that such departure was a proxrate cause of the plantff's njury (see, Fore v Galang, 64 NY2d 999, 489 NYS2d 47 [1985]; Lyons v McCa~ley, 252 AD2d 516, 517, 675 NYS2d 375 [2nd Dept 1998], app dened 92 NY2d 814, 681 NYS2d 475 [1998]; B1rm v C4Y of New York, 202 AD2d 465, 465, 609 NYS2d 45 [2"' Dept 1994]). To rebut a prma fafe showng of enttlement to an order grantng summary judgment by the defendant, the plantff must demonsttte the exstence of a trable ssue of fact by submttng an expert's affdavt of mert attestng to a devaton or 9~parture from accepted practce, and contanng an opnon that the defendant's acts or omssons were a comp9tent-producng cause of the njures of the plantff (see, Lfshtz v Beth srael Med. Ctr-Kngs Hghway Dv., 1AD3d 759, 776 NYS2d 907 [2nd Dept 2004]; Domaradzk v Glen Cove OB/GYN Assocs., 242 AD2d 282, 6 0 NYS2d 739 [2nd Dept 1997]). "Summary judgment s not approprate n a medcal malpractce acton where t1p.epartes adduce conflctng medcal expert opnons. Such credblty ssues can only be resolved by ajury'l (Bengston v Wang, 41 AD3d 625,839 NYS2d 159 [2 nd Dept 2007]). n support of moto~ (001), Huntngton Hosptal has submtted, nter ala, an attorney's affdavt, copes of the summons and comp~ant, answer (wthout cross-clams) and demands for dsclosure, and plantff's verfed bll of partculars ~nd supplemental verfed bll of partculars; plantff's medcal records; the affrmaton of the defend~t's expert Dr. L. Paul Bref, M.D.; and the unsgned transcrpts of the examnatons before tral of Barbara Mc(Cue dated Aprl 14,2009, Francs Callan dated June 26, 2009, and Jay Wessberg, M.D: dated September 16, T.he unsgned co~es of the deposton transcrpts are not n admssble form as requlred by CPLR 3212 (s~e, Martmez v Lberty Ave. Realty Corp., 47 AD3d 901,850 NYS2d 201 [2 nd Dept 2008]; McDonald v aus, 38 AD3d 727,832 NYS2d 291 [2 nd Dept 2007]; Pna v Flk ntl. Corp., 25 AD3d 772,808 NYS2d 75~ [2 nd Dept 2006]), nor are they accompaned by an affdavt pursuant to CPLR 3116, and, therefore, are not con!'dered on ths moton. L. Paul Bref, M.D p has set forth n hs supportng affdavt that he s lcensed to practce medcne n the State of New York and s ~ertfed n orthopedc surgery. He set forth the materals he revewed n formng hs opnons and sets forth those opnons wth a reasonable degree of medcal certanty. He states that t s the responsblty of the patel1;t's physcan to provde nformed consent to the plantff and therefore the hosptal s not responsble for provdng nformed consent to the patent. He states that at all tmes, the hosptal staff followed all physcan orders n a tmely and effcent marmer. When Ms. Callan was admtted to Huntngton

5 [* 4] ndex No Page NO.4 Hosptal wth a fractured hf' the standard of care requred that the patent be properly processed through the emergency room, operatn~ room, recovery and nursng floor by the hosptal employees nvolved n the pat~ent's care, and that at all tmes ths was properly and professonally done, and all orders were completed appropnately and tmely. Dr. Bref contnues ~hat the nursng staff and physcal therapy staff at Huntngton Hosptal provded proper care, and accordng to the chart, Ms. Callan was comfortable after the surgcal procedure of January 14, He states that the rebord does not reflect any early sgns of hardware falure from January 14,2007 through Ms. Callan's dschfge on January 23, 2007, and that durng her admsson, Ms. Callan performed physcal therapy, ambulate? on the leg n queston and performed weght bearng as tolerated. He further states that at no tme dd the staf~ at Huntngton Hosptal devate from the standard of care and that none of the njures clamed by the pla~ntff can be causally related to the treatment rendered to her by members of the Huntngton Hosptal staff 1urng her admsson thereto. Based upon the for~gong, t s determned that Huntngton Hosptal has demonstrated prma face enttlement to summary ju1gment dsmssng the complant. n that Huntngton Hosptal has not submtted any ans.w~rs wth cross clams ~sserte? aganst t, that part o~the hosptal'~ applcaton s dened as ac~demc. The plamtdthas not opposed 11s moton and thus has not rased a factual Ssue to preclude summary Judgment. Accordngly, motx (001) s granted to the extent that the complant as asserted aganst Huntngton Hosptal s dsmssed wth rejudce. n support ofmotop (002), Mchael Patrck Lesle, D.O., has submtted, nter ala, an attorney's affrmaton; copes of the ~'ummons and complant, defendants' answers (whch do not contan cross-clams), and plantffs verfed bllf of partculars and supplemental blls of partculars; plantffs hosptal record; affdavt of Mchael P. Les e, D.O.; expert affrmaton of Phlp A. Robns, M.D.; and the unsgned transcrpts of the examnatons before tral of Barbara McCue dated Aprl 14,2009, Francs Callan dated June 26, 2009, Jay Wessberg, M.D. date9 September 16,2009, Maureen M. Orsen, M.D. dated January 7,2010. The unsgned copes of the deposton tr,nscrpts are not n admssble form as requred by CPLR 3212 (see, Martnez v Lberty Ave. Realty COffl" supra; McDonald v Maus, supra; Pna v Flk nt. Corp., supra), nor are they accompaned by an affdalt pursuant to CPLR 3116, and, therefore, are not consdered on ths moton. t s noted that the tffdavt of Mchael Lesle, D.O. was notarzed n the State of Connectcut and s not n proper or admssble fot pursuant to CPLR 2106 and 2309(c). t lacks a certfcate of conformty as requred by N.Y. Real. Pr9p. Law. 299-a(l) (see, Ford Motor Credt Company v Prestge Gown Cleanng Servce, 193 Msc2d 262, V48 NYS2d 235 (Cv Ct Queens County 2002]). Therefore, t s not consdered on ths moton for summary jtdgment. Phlp A. Robns s~ts forth n hs supportng affrmaton that he s a physcan duly lcensed to practce medcne n the State of N T:wYork and s board certfed n orthopedc surgery. He sets forth the materals he revewed to render an op9on n ths acton, and sets forth hs opnon wth a reasonable degree of medcal certanty. Dr. Robns stats that Ms. Callan was admtted to Huntngton Hosptal on January 13,2007 after havng fallen and sustanqg a rght ntertrochanterc fracture of the hp. He states that upon hs revew that he determned that Dr. Wessperg was Ms. Callan's admttng doctor who ordered Buck's tracton untl she was cleared for surgery, whchlwas ultmately performed on January 14,2007. Pror to surgery, Dr. Wessberg?scussed the rsks of the ~rocedure and possble complcatons wth the patent, as s hs duty and responsblty m accordance wth the aprcable standard of care. Dr. Robns contnues that Dr. Wessberg determned and

6 [* 5] ndex No Page NO.5 formulated the treatment p~, the surgcal procedure, and determned the applance to be nserted nto Ms. Callan's femoral shaft afte t was noted durng the procedure that she had also sustaned a fracture of the femoral shaft. Mchael Le le, D.O. was the thrd year orthopedc resdent who asssted Dr. Wessberg durng the procedure. He states tryatpostoperatve orders were wrtten by Dr. Lesle at the drecton of Dr. Wessberg, ncludng orders relatng tolweght-bearng and physcal therapy. On January 23, 2007, Ms. Callan was dscharged from Huntngtop Hosptal and transferred to St. Johnland Nursng Center for rehabltaton. Ultmately, the surgcal ha~dware faled and Ms. Callan requred revson surgery. Dr. Robns contnuts that at all tmes Dr. Lesle was workng under the drecton, nstructon and supervson of Dr. Wessbefg, the attendng surgeon. At no tme dd Dr. Lesle exercse ndependent medcal judgment wth respect to t~e care and treatment of the patent. Dr. Wessberg made the dagnoss, planned and performed the surgery, chofe the hardware and nformed the patent of the rsks and comjllcatons of the procedure. Dr. Robns desyrbed the functons whch Dr. Lesle performed durng the surgcal procedure n assstng Dr. Wessberg as per Dr. Wessberg's drectons and nstructons. He states there s no evdence that Dr. Wessberg's drectonsldeparted from normal practce and thus there was no cause for Dr. Lesle to queston those drectons or otherw~e ntervene n Dr. Wessberg's care and treatment of the patent. Dr. Robns contnues that Dr. Wessberg determned the physcal therapy the patent would have postoperatvely, ncludng the weght-bearng paramef,ers. He further opnes that there s nothng that Dr. Lesle dd or dd not do that proxmately caused any orre njures clamed by the plantff. A resdent who ass~sts a doctor durng a medcal procedure, and who does not exercse any ndependent medcal judgment, cannot te held lable for malpractce so long as the doctor's drectons dd not so greatly devate from normal practre that the resdent should be held lable for falng to ntervene (Munz v Katowtz 49 AD3d 511, 856 NYS2d 120 [2 nd Dept 2008]). A prvate physcan may be held vcarously lable for conduct of a resdent physcan wh~re the resdent s under the drect supervson and control of the prvate physcan at the tme of the conduct; th~ key s whether the resdent exercses ndependent medcal judgment (Freeman v Mercy Medcal Center, 20p8 NY Slp Op 31337U, 2008 Msc Lexs [Sup. Ct., Nassau County]). Here, Dr. Lesle's expert has dej10nstrated that Dr. Lesle, as a thrd year resdent, dd not exercse ndependent medcal judgment. Here, tre record supports that he was workng under the supervson and control of the attendng physcan, Dr. "1essberg, and only acted wthn the scope relatng to the care and treatment that was approved by the attendng physcan. The plantff has not opposed ths moton and has rased no factual ssue to preclude summary judgment. Based upon the forlong, t s determned that Dr. Lesle has establshed prma face enttlement to summary judgment dsmsfng the complant asserted aganst hm. n that Dr. Lesle has not submtted any answers wth cross clams rganst hm, that part of hs applcaton for dsmssal of the cross clams s dened as academc. Accordngly, motln dsmssed wth prejudce. Dated: :J" c1-/4- (002) s granted to the extent that the complant as asserted aganst Dr. Lesle s FNAL DSPOSTON -L NON-FNAL DSPO