Plaintiff (s), MOTION DATE: 11/3/04 INDEX No. : 17399/01 MOTION SEQUENCE NO: 3

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1 SHORT FORM ORDER Present: SUPREME COURT HON. UTE WOLFF LALY, WILLIAM LOPRESTI and SUSAN LOPRESTI STATE OF NEW YORK Justice TRIAL/IAS, PART 11 NASSAU COUNTY SC'/ mod -against - Plaintiff (s), MOTION DATE: 11/3/04 INDEX No. : 17399/01 MOTION SEQUENCE NO: 3 LONG ISLAND JEWISH MEDICAL CENTER, et al., Defendant (s). CAL. NO. : 2004H1738 The following papers read on this motion for summary Notice of Motion/ Order to Show Cause Answering Affidavits. Replying Affidavits. Briefs: " j udgmen t : Upon the foregoing papers, it is ordered that this motion by defendants, Long Island Jewish Medical Center, Gordon & Held, P. C. s/h/a Lawrence A. Gordon, M. D., P. C., Douglas K. Held, M. D., James Connor, M., and Aaron J. Gindea, M. D. (collectively known as LIJ" ), for an order pursuant to CPLR 3212, granting summary judgment in favor of defendants dismissing the plaintiffs' complaint is disposed of as follows. This is an action brought by plaintiffs seeking to recover money damages for injuries sustained as the result of the alleged medical malpractice of defendants. It is alleged by the plaintiffs that from March 2000 through April 2000 defendants "performed, rendered, or provided examinations, evaluations, care, treatments, (and) services " to William LoPresti in a " negligent, careless or improper manner, or in a manner contrary to good and accepted medical, surgical, and/or nursing practices in the community. " The

2 Lopresti v LIJ Index NO. 7399/01 plaintiffs further allege that the treatment rendered to William LoPresti by defendants was performed by persons who were incompetent to provide such treatment. Plaintiffs contends that defendants, although aware that Mr. LoPresti had an acute appendicitis on admission to LIJ on March 9, 2000, there was a departure from good and accepted medical and hospital practice by discharging Mr. LoPresti, in that immediate surgery would have occasioned the best medical results and avoided potential future risks and complications. The plaintiffs further contend that defendants failure to properly evaluate Mr. LoPresti' s CT- scan films and/or reports dated March 8, 2000 constituted a departure from good and accepted medical and hospital practice and that the departures from good and accepted medical and hospital practice committed were a substantial factor in causing injury to Mr. LoPresti; more specifically, in causing unnecessary suffering from a recurrent acute appendicitis with peri- appendiceal abscess, peritonitis requiring unnecessarily maj or bowel surgery and the permanent removal of his ileocecal val ve with permanent increased bowel movements and permanent significant adhesions and other significant complaints. After discharge plaintiff' s significant symptoms recurred and on April 2000 plaintiff was admitted to LIJ Medical Center and appendectomy was performed on April 6, Specifically, with respect to defendant Aaron J. Gindea M. the plaintiffs allege that in 'failing to advise the plaintiff of the risks incurred as a result of submitting to the care and treatment by defendant and/or the timing of said treatment and procedures in light of plaintiff' medical history and in negligently and carelessly failing to diagnose acute appendicitis and in causing or permitting plaintiff' s condition to deteriorate Aaron J. Gindea, M. D. departed from good and accepted medical and hospital practice and that the departures from good and accepted medical and hospital practice. Upon the instant motion, the defendants move for judgment dismissing the complaint. The motion is granted and deni ed in part. summary in part In order " (t) 0 establish liability in a medical malpractice

3 Lopresti v LIJ - 3 Index No /01 action, a plaintiff must prove that the defendant deviated from good and accepted standards of medical practice, and that the departure was the proximate cause of the inj ury. Hanley v. St. Charles Hosp. and Rehabili ta tion Center, 307 AD2d 274, 277; see also, Prestia v. Mathur, 293 AD2d 729; Kaffka v. New York Hosp, 228 AD2d 332; Prete v. Rafla- Demetrious, 224 AD2d 674. A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad New York Univ. Med. Center, NY2d 851; Zuckerman v. City of New York, 49 NY 2d Summary judgment, which entails issue- finding rather than issue- determination (Greco v. Posillico 290 AD2d 532), is a drastic remedy which should be denied where there is any doubt as to the existence of a material issue of fact or where the issue is arguable. Andre v. Pomeroy, 35 NY2d 361; Mosheyev v. Pilevsky 293 AD2d 469. "Even the color of a triable issue forecloses the remedy. Rudni tsky v. Robbins, 191 AD2d 488. Upon the parties ' materially conflicting factual contentions and the opposing expert opinions submitted, triable issues of fact exist with respect to whether the treatment rendered defendants represented a departure from accepted medical standards, which proximately contributed to the injuries sustained by the plaintiff. More particularly, while defendants contend - through their expert submissions that, the medical treatment provided to William LoPresti by defendants Dr. Aaron J. Gindea, M. D., by Dr. Gordon, a shareholder with Defendant Gordon & Held, P. C., by Dr. 0' Connor, an employee with Defendant Gordon & Held, P. C., by Dr. Douglas K. Held, M. D., a shareholder with Defendant Gordon & Held, P. C., by the medical personnel of Defendant Long Island Jewish Medical Center, was at all times within good and accepted medical practice; constituted the appropriate diagnosis of appendicitis; that it was appropriate to treat the patient with antibiotics and observation at a hospital, allowing the inflamation to subside so that a less extensive, interval appendectomy may be performed at a later time; in referring the patient to Defendant, Long Island Jewish Medical Center, for additional I. V. antibiotics and a CT scan; and that it was appropriate and within good and accepted

4 Lopresti v LIJ Index No /01 medical practice to perform an appendectomy of Mr. LoPresti after palpating a mass in the patient' right lower quadrant and reviewing the additional CT findings. The plaintiff has submitted expert opinions asserting, inter alia, that the defendants, Dr. Gordon, Dr 0' Connor, Matthew Sheebes, P. A., and LIJ hospital staff departed from good and accepted medical and hospital practice in that the mis -diagnosis of Plaintiff' acute appendicitis, the failure to properly evaluate the CT-scan film and/or report dated March 8, 2000, the failure to perform a CT-scan during the March 2000 admission, the failure to do an immediate appendectomy during the March 9, 2000 admission and the improper discharge of Mr. LoPresti during the March 9, 2000 admission was a substantial factor in causing Mr. LoPresti' unnecessary suffering from a recurrent acute appendicitis with per-appendiceal abscess, peritonitis requiring unnecessarily major bowel surgery and the permanent removal of his ileocecal valve with permanent increased bowel movements and permanent significant adhesions and other significant complaints. To the extent that the parties' and their experts have reached opposing conclusions with respect to, among other things, proximate causali ty, the overall propriety of defendants I treatment, and the conflicting claims as to what was said and done during the plaintiff' s contact with the defendants, those disputed contentions present () a credibility battle between the parties' experts, raising "issues *** properly left to a jury for *** resolution. Petrone v. County of Nassau, 305 AD2d 596; Lopez - Maraldo Ciccone, 292 AD2d 348; Halkias v. Otolaryngoloy-Facial Plastic Surgery Assocs., 282 AD2d 650; weissman v. Wider, 235 AD2d 474 cf. Barbuto v. Winthrop University Hosp., 305 AD2d 623, 624. With these guidelines in mind, and giving the non-movant, Plaintiff, the benefit of every favorable inference, Strong Memorial Hosp., 98 2d 976, see also, Blake- Veeder Realty, Inc. v. Crayford, 110 A. 2d 1007), it is this court' conclusion that there remain material issues of fact precluding a grant of summary judgment in Defendants (Robinson thus, Long Island Jewish Medical Center, Gordon & Held, P. C., s/h/a Lawrence Gordon, M. D., P. C., Douglas K. Held, M. D., and James O' Connor M. D., favor.

5 Lopresti v LIJ - 5 Index No /01 As in all other types of actions, the proponent of a summary judgment motion in a medical malpractice case has the burden of making a prima facie showing of entitlement to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 N. 2d 320, 508 N Once the movant has made this showing, the burden shifts to the opponent of summary judgment to show, by competent evidence, that there is a material issue of fact as to whether the physician was negligent. See id. If the nonmovant submits an affidavit from a competent expert showing the existence of a triable issue of fact as to whether defendant committed medical malpractice, the summary judgment motion must be denied. Dellert v. Kramer, 280 A. 2d 438; Morrison v. Altman 278 2d 135; Avacato v. Mount Sinai Medical Center, 277 2d 32. With respect to defendant Dr. Aaron J. Gindea, M. D., plaintiffs have failed to submit any evidence that he departed from good and accepted medical practice in rendering treatment to William LoPresti. As such, summary judgment is hereby granted and the complaint as to Dr. Aaron J. Gindea, M. D. is dismissed. Dated DEC 9lQQ4 li ENTERED 8I CU"I DEC OPt''' lopresti