- STATE OF NEW YORK. Plaintiff(s), Defendant(s). Notice of Motion Affirmation in Opposition X X Reply Affirmation Memorandum of Law

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. ROY S. MAHON Justice FRANCINE PAGAN0 and RICHARD PAGANO, - against WINTHROP UNIVERSITY HOSPITAL, STEVEN PLOTNICK, M.D., DAVID EYSLER, M.D., THEODORE FELDERMAN, M.D., MURIEL GRAHAM, AS EXECUTRIX OF THE ESTATE OF GEORGE GRAHAM, M.D., DECEASED, NOEL NANCY GREAN JAHR, AS EXECUTRIX OF THE ESTATE OF JOSEPH JAHR, M.D., JOSEPH JAHR, M.D., PC., GEORGE HINES, M.D., and N ASSAU THORA~I~ CARDIOVASCULAR S U RG E RY GROU P, P.C., - Plaintiff(s), TRIAL/IAS PART 24 INDEX NO /95 MOTION SEQUENCE NO. 3&4 MOTION SUBMISSION DATE: April 20,200O Defendant(s). The following papers read on this motion: Notice of Motion XX Affirmation in Opposition X X Reply Affirmation XX Memorandum of Law X Upon the foregoing papers, the motion, by defendants Steven Plotnick, M.D., Theodore Felderman, M.D., Noel Nancy Grean Jahr as Executrix of the Estate of Joseph Jahr, M.D., Joseph Jahr. M.D., P.C., George Hines, M.D., Nassau Thoracic Cardio-Vascular Surgery Group, P.C., for an Order, as follows: -l- 1. pursuant to CPLR 3212, granting summary judgment and dismissi-ng plaintiffs complaint with prejudice against Noel Nancy Grean Jahr, as Executrix of the Estate of Joseph Jahr, M.D., Joseph Jahr, M.D., P.C., George Hines, M.D. and Nassau Thoracic Cardio-Vascular Surgery Group, P.C. on the ground that there exists no triable issues of fact to go to a jury as a matter of law; 2. dismissing any cross-claims that may have been asserted against Noel Nancy Grean Jahr, as Executrix of the Estate of Joseph Jahr, M.D., Joseph Jahr, M.D., P.C., George Hines, M.D. and

2 Nassau Thoracic Cardio-Vascular Surgery Group, P.C.; 3. permitting the foregoing defendants to enter Judgment and directing the Clerk of the Court to enter Judgment accordingly with statutory fees and costs together with such other and further relief as this Court may deem just and proper; and a motion, by defendant Winthrop University Hospital, for an Order, pursuant to CPLR 3212, granting summary judgment in favor of the defendant Winthrop University Hospital, thereby dismissing plaintiffs complaint in its entirety on the ground that there exists no triable issue of fact with respect to the claims made against the moving defendant and for such other and further relief as this Court deems just and proper, are both respectively granted, and the complaint is dismissed as against the moving defendants and severed as to any remaining defendants. Plaintiffs concede that there is no claim as to defendant Nassau Thoracic Cardio-Vascular Surgery Group, P.C. and that there are no informed consent claims as to defendants Hines or Jahr. In this action for medical malpractice, plaintiff Francine Pagan0 alleges, in relevant part, that the defendant physicians and hospital failed to timely provide treatment to plaintiff for uterine (fibroid) leiomyomata and deep vein thrombosis (DVT) and failed to provide prompt conservative treatment so as to avoid surgery which resulted in removal of plaintiffs uterus. Plaintiff treated with defendant Dr. Jahr on one occasion, on December 7, She presented to his office and upon physical examination he found a fibroid in her uterus to be of eight months gestation size, as well as some areas of superficial thrombophlebitis in the left thigh and swelling, violaceous discoloration, edema and tenderness of her left calf and foot which were consistent with keep thrombophlebitis in the left lower extremity. He recommended a duplex doppler study of the venous system in the left lower extremity to verify, as well as placement of an umbrella to protect her form pulmonary emboli. He also,recommended an urgent hysterectomy in the very near future. Dr. Jahr referred plaintiff for treatment to defendant Dr. George Hines, the head of vascular surgery at defendant Winthrop University Hospital, where she presented and was admitted the same day. In a letter to an insurance carrier dated January 25, 1994, Dr. Jahr advised that the plaintiffs life threatening condition required immediate attention and, therefore, in order to have her treated most expeditiously, he referred her to Dr. George Hines, who was in a position to do just that even though this meant that plaintiff was going out of network In a. letter to defendants, Drs. Plotnick and Eysler, also dated December 7, 1993, he noted that plaintiffs local physician, Dr. Graham, placed her on aspirin for the superficial phlebitis. The aspirin prompted massive vaginal bleeding for which the plaintiff was given provera. Dr. Jahr noted that she was scheduled for a hysterectomy in On December 8, 1993, the following day, a doppler study was performed at Winthrop on the left lower extremity which reported that the findings were compatible with deep vein thrombosis involving the left superficial femoral and popliteal veins. The report stated that in light of the clinical history of a large fibroid, the DVT was likely secondary to vascular compression. Plaintiff was operated on by Drs. Plotnick and Eysler on December 8. The diagnosis was large fibroid uterus, left DVT. The operation consisted of an examination under anesthesia, an exploratory laparotomy, insertion of urethral catheters and a total abdominal hysterectomy. Plaintiff was treated with anticoagulants after the surgery. Defendant Jahr had no involvement with plaintiffs treatment at Winthrop. The moving defendants seek summary judgment averring that they rendered proper care to -2-

3 plaintiff. Defendants Jahr and Hines offer the affidavit of Joseph Cali, M.D., a board certified general surgeon. After a review of the treatment records of plaintiff, he offered the following opinion: II... It is my expert opinion with a reasonable degree of medical certainty that Dr. Hines did not deviate from good and accepted practice by recommending to the co-defendant surgeons that immediate surgery including a hysterectomy was indicated in order to treat the plaintiffs DVT condition. A venous doppler which was conducted on 12/8/93 confirmed that plaintiff had a deep vein thrombosis involving the left superficial femoral and popliteal veins. The report also states that in light of the clinical history of the large fibroid, this is likely secondary to vascular compression. Based on the result of the venous doppler, the plaintiffs history, and findings on physical examination as substantiated by the case summary, Dr. Hines felt that the left DVT was a result of her large fibroid uterus causing pelvic venous congestion with decreased venous return. It is my opinion with a reasonable degree of medical certainty that Dr. Hines opinion regarding the cause of the DVT was accurate. Contrary to the allegation in the Amended Bill of Particulars a review of the hospital records does not contain any direct reference that Dr. Hines recommended a total abdominal hysterectomy to treat the plaintiffs DVT condition. The Winthrop... Case Summary... indicates Dr. Hines[ ] opinion with respect to the cause of the plaintiffs DVT condition rather then [sic] the treatment which should be rendered... I Dr. Cali also offers his opinion, with a reasonable degree of medical certainty, that the myomectomy and total abdominal hysterectomy were properly undertaken to treat the pelvic venous congestion with decreased venous return and subsequent DVT, and that the DVT condition was a result of the large fibroid. He states that until the large fibroid was surgically removed there would be continued pressure from the fibroid which could cause continued venous stasis and thrombosis. He avers that the surgeons removed a 1370 gram uterus with subserosal and intramural leiomyomatas. He opines that the operation was medically necessary was necessary to restore the pelvic Dr. Cali also addressed plaintiffs full consent to the hysterectomy, as well as that anticoagulation treatmentwas contraindicated as treatment for the DVT. He opined that due to the increased risk of bleeding associated with anti-coagulation therapy, it would have been dangerous and inappropriate to prescribe a stronger anticoagulant because of plaintiffs vaginal bleeding. With regard to Dr. Jahr, Dr. Cali opines that he elicited a proper history from plaintiff, including her superficial thrombophlebitis in her left thigh, the massive swelling of her left calf, her scheduled hysterectomy and her treatment by Dr. Graham. He also conducted a proper physical, finding the thrombophlebitis in the left thigh and swelling and violaceous discoloration, edema and tenderness of her left calf. Dr. Cali opines that based upon plaintiffs history and physical examination, Dr. Jahr s recommendation of a doppler to verify the foregoing and referral to Winthrop was appropriate. He concludes that the care and treatment ren of her left leg on December 7, 19-3-

4 In support of its motion for summary judgment, Winthrop University Hospital offers the affidavit of Robert Rubin, M.D. who opined that the thoracic and cardiovascular surgical care rendered by the residents, nurses, staff and personnel at Winthrop was in accordance with the standards of good and accepted medical and surgical practice. He avers that the staff took proper medical history, examining and observing the patient and appreciating the findings of same; and timely and properly performing and interpreting the results of necessary diagnostic tests, studies and procedures. Before addressing the plaintiffs opposition, a preliminary issue can be disposed of. Defendants contend that the motions for summary judgment should be granted based upon the failure of plaintiffs expert to provide his qualifications, which failure rendered his affidavits inadmissible. The Court rejects defendants contention that the affidavit of plaintiffs expert failed to provide his qualifications. The physician s affidavit states that he or she is a physician duly licensed to practice medicine in the State of New York and was so licensed prior to Defendants reliance Daum on v. Auburn Memorial Hospital, 198 AD2d 899 for the proposition that a physician must provide qualifications in addition to the license to practice is misplaced. Although the Court s decision does not so state, the failure to state the expert s qualifications in that case was fatal because the expert was not a physician. In a Second Department case, the Appellate Division relied upon and cited Daum, supra for the proposition that the plaintiffs expert who is not a medical doctor failed to show her qualifications to render an expert opinion (see LaMarque v. North Shore University Hosp., 227 AD2d 594, ). Thus, a duly licensed physician is prima facie qualified to render a medical opinion (LaMarque v. North Shore University Hosp., supra; see also Burnett v. Zito, 252 AD2d 879,880 [as Kite was a licensed physician at the time he treated plaintiff there was no error in the determination that Kite would be qualified to testify as an expert]). However, the plaintiff has failed to make out a prima facie case of medical malpractice against the moving defendants. Plaintiffs burden of proof in this regard is well established as follows: II... In a medical malpractice action, a plaintiff, in opposition to a defendant physician s summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact. * * * General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician s summary judgment motion... (Alvarez v. Prospect Hosp., 68 NY2d 320, ). The affidavits submitted by the defendants established a prima facie case that their treatment of the plaintiff was not negligent, shifting to the plaintiff the obligation to show by sufficient evidentiary proof the existence of a triable factual issue. The affidavit of the plaintiffs expert merely states in conclusory terms that, based on the entire medical report, defendants diagnosis was incorrect and that heat and heparin was the correct treatment for her DVT (see Alvarezv. Prospect Hosp., supra; Holbrook v. United Hosp. Med. Cent., 248 AD2d 358). 229 AD2d The affidavit of plaintiffs expert physician, who is unidentified pursuant to Napierski v. Finn, 869, states with regard to defendant Winthrop University Hospital: I,... It is my opinion that the defendant Winthrop University Hospital through -4-

5 the acts of the radiologist Dr. Goffner was negligent. Due to defendants [sic] negligence when Mrs, Pagan0 was hospitalized. The care rendered by Dr. Goffner was inadequate and constituted unacceptable deviations from accepted standards. The defendants [sic] diagnosis that the large fibroid was the cause of compression and deep vein thrombosis was incorrect. This diagnosis was incorrect in accord with co-defendants error in this regard, as a result the plaintiff underwent surgery. Proper care required that defendanfs should have ordered the use of heat and heparin rather than surgical intervention which was inappropriate once DVT was diagnosed. The italicized portion of the foregoing affidavit is the only opinion offered with regard to malpractice, and is identical to that offered in opposition to the Jahr and Hines application. The opinions are unsupported and, therefore, insufficient to defeat defendants motions. Plaintiffs expert offers only a conclusion that the diagnosis of large fibroid being the cause of a compression and deep vein thrombosis was incorrect. In opposition to the motion of defendants Hines and Jahr, not even that much is offered, and in response to both motions, plaintiffs expert conclusorily states that heat and heparin should have been used before surgery. He fails completely to address defendants contentions that anticoagulation therapy (heparin) was contraindicated based upon plaintiffs heavy bleeding due to the fibroids.nor does he offer any explanation for his conclusion that the defendants diagnoses were incorrect. He does not offer a differential diagnosis, and does not even address whether or not a fibroid may be a competent producing cause of DVT. With respect to defendants Hines and Jahr, he also opined that due to their negligence many hours elapsed while waiting for a definite plan of action and waiting for the doppler study. He states that proper care required defendant urgently order the doppler study. However, he does not state what consequences flow from the hours delay. Accordingly, as defendants have made out a prima facie case that they were not negligent, and plaintiff has failed to raise a triable issue of fact, the motions are hereby aranted, and the complaint is dismissed as against defendants Noel Nancy Grean Jahr, as Executrix of the Estate of Joseph Jahr, M.D., Joseph Jahr M.D., P.C., George Hines, M.D., Nassau Thoracic Cardio-Vascular Surgery Group, P.C. and Winthrop University Hospital. SO ORDERED. DATED: J.S.C. -5-