SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 17. Justice. Plaintiffs, Defendants. KATZ Notice of Motion... WINTHROP Notice of Motion...

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 17 Present: HON. WilLIAM R. lamarca Justice PETER NAPOLITANO and PAULA NAPOLITANO, -against- Plaintiffs, Motion Sequence #3, #004. Submitted October 15, 2007 XXX INDEX NO: 19763/05 ALAN J. KATZ, M. D., CAROL A. BOGDAN, M.D., and WINTHROP UNIVERSITY HOSPITAL, Defendants. The following papers were read on these motions: KATZ Notice of Motion... WINTHROP Notice of Motion... Plaintiff Affrmation in Opposition... KATZ Reply Affrmation WINTHROP Reply Affirmation Defendant, ALAN J. KATZ, M. D. (hereinafter referred to as "DR. KATZ" ) and defendant, WINTHROP UNIVERSITY HOSPITAL (hereinaft referred to WINTHROP" ), respectively move for an order, pursuant to CPLR 93212, granting them ' amended complaint and all claims against them. summary judgment dismissing plaintiffs Plaintiffs, PETER NAPOLITANO and PAULA NAPOLITANO, oppose the motions, which are determined as follows:

2 This medical malpractice action arises from the medical care rendered to plaintiff PETER NAPOLITANO, during the period from February 18, 2004 through March 25, 2004 as a result of which he claims to have sustained injuries including, inter alia blindness in the right eye, dry right eye, poor night vision and painful, burned, irritated and red right eye. The claimed malpractice involves the administration of radiation therapy by defendant Dr. KATZ, the director of radiation oncology, and defendant WINTHROP, Dr. Katz ' employer in treating plaintiff for xanthogranuloma disease within the right orbital socket and the right upper eyelid. Plaintiffs maintain that defendants were negligent and departed from medical standards of care in using excessive radiation, in using incorrect techniques, in failing to take adequate measures to prevent injury, in failing to disclose alternative treatments and in adequately informing plaintiff patient of the risk of blindness. As a procedural matter the court notes that the lawsuit has been discontinued as to defendant, CAROL A. BOGDAN, M., an employee of defendant WINTHROP, board certified in internal medicine, hematology and medical oncology, who referred the plaintiff to Dr. KATZ after evaluating him and finding no evidence of malignancy. The amended complaint asserts three causes of action including medical malpractice, lack of informed consent and a derivative claim by plaintiff, PAULA NAPOLITANO, who seeks to recover for the alleged loss of services of her husband. To establish a prima facie case of liabilty in a medical malpractice action, a plaintiff must prove 1) the standard of care in the locality where the treatment occurred, 2) that defendant breached that standard of care and 3) that the breach of the standard was the proximate cause of the injury. 803 NYS2d 687 (2 (Texter Middletown Dialysis Center, Inc. 22 AD3d 831 Dept. 2005); DiMitri Mansouri 302 AD2d 420, 754 NYS2d 674 (2

3 Dept. 2003)). On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. (Gargiulo Geiss 40 AD3d NYS2d 276 (2 Dept. 2007); Wiliams Sahay, 12 AD3d 366, 783 NYS2d 664 (2 Dept. 2004)). In opposition, plaintiff must submit a physician affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury. (Rebozo Wilen 41 AD3d NYS2d 121 (2 Dept. 2007)). Affidavits of Peter Schiff, M. D., a board certified specialist in radiation oncology, and of Jay Bosworth, M., an expert certified in therapeutic radiology, submitted by the moving defendants in support of their respective motions for summary judgment, make a prima facie showing sufficient to warrant judgment in favor of each of the defendants dismissing the medical malpractice action as asserted against them. In his affidavit, Dr. Schiff notes that xanthogranuloma, the condition for which Mr. NAPOLITANO was treated by Dr. KATZ is a very rare lesion. He opines that: (r)adiotherapy was an appropriate treatment to recommend to plaintiff. The radiation dose was appropriate, well below the reported tolerances of the various ocular structures, and the treatment plan provided for sparing as much healthy tissue as possible. The type of radiation delivery employed-imrt -limited the radiation exposure of nontargeted structures to the extent it was possible to do so. With respect to defendant hospital, Dr. Bosworth found nothing in the medical records to suggest any departure by the radiation therapy staff from the plan created and approved by Dr. KATZ for plaintiff, nor any evidence that the machine involved in his treatment malfunctioned or was in any way inaccurate. He opined that:

4 given the rarity of plaintiff' s condition and lack of established a) radiation standards in treating xanthogranuloma b) that the therapy was an appropriate mode of treatment * * * dose prescribed by Dr. Katz was appropriate; c) that Winthrop radiation University Hospital properly administered the treatment * * * in accordance with the plans created and radiation equipment * * * had approved by Dr. Katz; d) the safety features that were in place to insure ' plan that * * the * and radiation e) that was administered according to Dr. Katz Winthrop University Hospital properly maintained the radiation equipment, ensuring that it worked properly. submitted the affidavit of a radiation In opposition to the motions, plaintiff has oncologist (name redacted), who states that IMRT (intensity modulated radiation therapy), an advanced mode of radiation therapy used to treat malignant tumors, was not the correct s eyelid. Rather, he states that good and technique for treating the benign mass on plaintiff' accepted practice in the radiation oncology community dictates the use of electronic beam malignant tumor such as adult xanthogranuloma radiation therapy (EBRT) to treat a non- as noted by defendant physician, there was no at the location of the eye. Parenthetically, mention in plaintiffs ' bills of particulars that Dr. KATZ was negligent in using IMRT rather deposition regarding his alleged failure to use than EBRT. Nor was he questioned at his EBRT to treat plaintiff' s condition. This new theory of liabilty regarding plaintiffs treatment, ' summary judgment motion, improperly raised for the first time in opposition to defendants (Abalol 44 AD3d 522, 843 NYS2d Flower Hosp., is insufficient to raise a factual issue. 615, (1 Dept. 2007); Winters Sf. Vincent' s Medical Center of Richmond, 273 AD2d NYS2d 892 (2 Dept. 2000)). Plaintiffs' expert also opines that the standard of care requires the use of an internal eye shield to prevent injury to the cornea and anterior chamber of the eye. He conjectures that:

5 (h)ad EBRT been used, with an eye shield, at a dose of cgy, there is a substantial probability that Mr. Napolitano would have tolerated the procedure without the degree of damage to his eye Dr. Katz inflicted-and his vision in all likelihood would've been spared. Plaintiffs' expert, however, fails to address the critical contention of defendants ' experts that Mr. NAPOLITANO's xanthogranuloma was not merely a mass on the outer layers of the skin on his right eye but, rather, it involved an infiltrating mass/subcutaneous disease as evidenced by his medical records. Nor does plaintiffs ' expert address or refute Dr. Schiffs opinion that it is impossible to deliver radiation to the orbit without irradiating the orbital contents (the globe) and totally fails to explain how a lesion located behind the globe can be reached by radiation with the globe shielded. Inasmuch as plaintiffs' expert' s opinion is based on the erroneous assumption that plaintiffs lesion was "a benign lesion ofthe eyelid " and fails to specifically address the fact that a) his condition was not restricted to the eyelid but involved an infiltrating mass, 2) there was significant disease located behind the globe and medial to the globe, and 3) the lesion was not a superficial structure confined to the skin, it is insufficient to demonstrate a triable issue of fact with respect to the care and treatment rendered by defendant physician KATZ or his employer, defendant WINTHROP. (Hernandez- Vega Zwanger- Pesiri Radiology Group, 39 AD 3d 710, 833 NYS2d 627 (2 Dept. 2007)). While EBRT might be the preferred methodology to treat a superficial lesion plaintiffs' expert fails to raise a factual issue as to whether Dr. KATZ improperly used IMRT to treat the specific condition from which plaintiff suffered. General allegations that are unsupported by competent evidence tending to establish the essential elements of a medical malpractice claim are insufficient to defeat summary judgment. (Thompson

6 Orner 36 AD3d 791, 828 NYS2d 509 (2 Dept. 2007)). In order to establish a cause of action predicated on a lack of informed consent plaintiff must prove that 1) the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks, that a reasonably prudent medical associated with the treatment, and the alternatives practitioner would have disclosed in the same circumstances, 2) a reasonably prudent had been patient in the same position would not have undergone the treatment if he or she cause of the injury fully informed, and 3) the lack of informed consent was a proximate alleged. (Spano Bertocci 299 AD2d 335, 749 NYS2d 275 (2 Dept. 2002)). The Consent for Radiation Therapy, signed by PETER NAPOLITANO on February specifically states, inter alia that he was informed of indications for and the alternatives to radiation therapy and the expected benefits, risks, hazards, complications and consequences were explained to him. Accordingly, plaintiffs having failed to raise a factual issue requiring trial (Alvarez Prospect Hospital 68 NY2d 320, 508 NYS2d 925, 501 NE2d 512 (C.A.1986)). It is therefore ORDERED, that defendants' respective motions for summary judgment dismissing plaintiffs' amended complaint are granted and the action is dismissed. All further requested relief not specifically granted is denied. This constitutes the decision and order of the Court. Dated: January 7, 2008 WIL lam R. LaMARCA, J. ENTERED JAN COUNTY NASIAU COUNTY ClEftK' S OFFIC

7 TO: Edelman, Krasin & Jaye, Esqs. Attorneys for Plaintiffs One Old Country Road, Suite 210 Carle Place, NY Charles X. Connick, PLLC Attorneys for Defendant Alan J. Katz, MD 114 Old Country Road, Suite 208 Mineola, NY Bower, Sanger & Lawrence, PC Attorneys for Defendant Winthrop University Hospital and Carol A. Bogdan, MD 261 Madison Avenue, 12 Floor New York, NY napolitano-katz&winthrop,#3,#04/sumjudg