SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. THOMAS P. PHELAN, Justice TRIAL/IAS, PART 16 NASSAU COUNTY ILANA JOY FOLK, ORIGINAL RETURN DATE:lo/o 4/00 Plaintiff(s), SUBMISSION DATE: 12/11/00 INDEX No.: 8447/98 -against- JOEL BENOWITZ, M.D., JOEL BENOWITZ, M.D., P.C., MAX GOLDBERG, M.D., MAX GOLDBERG, M.D., P.C., HAROLD M. TICE, M.D., LONG ISLAND RADIOLOGY ASSOCIATES, P.C., JAY SAMUEL FENSTER, M.D., STEVEN KADISH, M.D., HAROLD JACOB, M.D., JONATHAN ZINBERG, M.D., SOUTH SHORE GASTROENTEROLOGY, P.C., DEPARTMENT OF SURGERY AT LONG BEACH MEDICAL CENTER and LONG BEACH MEDICAL CENTER, Defendant(s). MOTION SEQUENCE #3,4 The following papers read on this motion: Notice of Motion... 1,3 Answering Papers... 4 Reply... 5,6 Defendants' Brief... 2 Motion by defendants Joel Benowitz, M.D.; Joel Benowitz, M.D., P.C.; Max Goldberg, M.D.; Max Goldberg, M.D., P-C.; HaroldM. Tice, M.D.; and Long Island Radiology Associates, P.C. for summary judgment dismissing plaintiff's complaint in its entirety is denied except that defendants Tice and Long Island Radiology are awarded summary judgment dismissing plaintiff's complaint as against them. Motion by defendants Jay Samuel Fenster, M.D.; Steven Kadish, M.D.; Harold Jacob, M.D.; Jonathan Zinberg, M.D.; and South Shore Gastroenterology, P.C. for summary judgment dismissing plaintiff's complaint on the grounds that there are no triable issues of fact is denied. This medical malpractice action arises out of the care and treatment rendered to plaintiff during the fall and winter months of 1995 by the various defendants. Plaintiff, who was experiencing abdominal pain and nausea, was initially seen on October 26, 1995 by Dr. Fenster of the South Shore Gastroenterology Group, who considered gallstones as a possible cause for her symptoms. On October 27, 1995 an abdominal sonogram./' / was performed on plaintiff
RE: FOLK v. BENOWITZ, et al. Page 2. at Long Island Radiology Associates. Counsel for plaintiff states that: "The ultrasound was reviewed and interpreted by Dr. Harold M. Tice, who made the diagnosis of gallstones." Thereafter, Dr. Fenster referred plaintiff to Dr. Benowitz for surgical evaluation. On October 30, 1995, plaintiff consulted Dr. Benowitz, who advised her to undergo gallbladder surgery. The surgery was performed on November 2, 1995 at the Long Beach Medical Center by Dr. Benowitz with Dr. Goldberg assisting. Counsel for plaintiff states that: "Post-operatively Ilana Folk continued to experience abdominal pain and complained to Dr. Benowitz about loss of appetite." Counsel further states that: On November 14, 1995, Ilana Folk underwent a hepatobiliary scan, the purpose of which was to check for retained stones in the biliary tract." The results of this test were apparently negative. Plaintiff's symptoms worsened and on December 19, 1995 she consulted Dr. Zinberg of the South Shore Gastroenterology Group, who recommended that plaintiff undergo an Endoscopic Retrograde Cholangiopancreatography (ERCP) wherein an endoscope is used to look down through the mouth of the stomach into the beginning of the small intestine. This procedure was performed on December 20, 1995 at the Long Beach Medical Center by Dr. Fenster. Dr. Fenster was apparently unable to complete the procedure and recommended that plaintiff undergo a second ERCP. The following day, the second ERCP was performed on plaintiff by Dr. Kadish, another physician belonging to South Shore Gastroenterology Group. It was during this procedure that plaintiff's duodenum was perforated. Counsel for plaintiff states that: As a result of the perforation, Ilana developed severe inflammatory changes in the peripancreatitic, paraduodenal, pararenal and right nephric area." Counsel further states that: "SeveralMRI's were conducted during this hospitalization, which demonstrated that Ilana Folk had developed an intra-abdominal abscess as a result of the perforation." Counsel additionally states that: "Ilana Folk was treated with antibiotics and was sent home on January 5, 1996 by the members of the South Shore Gastroenterolog-y Group, P.C." Plaintiff's abdominal pain again worsened and she was admitted to South Nassau Communities Hospital on January 10, 1996 by Dr. Zinberg. Counsel for plaintiff states that: An abdominal CT scan was ordered which revealed multiple intra-abdominal abscesses. Moreover, a renal sonogram was performed which revealed hydronephrosis." Plaintiff was discharged from the hospital on February 15, 1996, but was readmitted shortly thereafter by Dr. Jacob. Plaintiff was again discharged on March 4, 1996 and again her symptoms worsened. Counsel for plaintiff states that: By the end of 1996, Ilana Folk was advised by Dr. Harry Speira, a rheumatologist that she had developed lupus, an autoimmune disease with serious and life-threatening complications."./ /
RF2 FOLK v. BENOW ITZ, et al. Page 3. Defendants do not dispute counsel for plaintiff's characterization of the course of treatment as stated above and as predicated on cited deposition testimony and exhibits. Defendants move for summary judgment essentially based upon physicians' affidavits each expressing the opinion that the respective defendants did not deviate from accepted standards of medical care in the care and treatment they rendered to plaintiff. The affidavit of Steven Mendelsohn, M.D., dated August 31St, 2000, submitted in support of the motion for summary judgment by Dr. Tice and Long Island Radiology Associates, indicates that Dr. Tice correctly diagnosed plaintiff's condition after examining the films taken during plaintiff's sonogram. The Court holds that a prima facie case for summary judgment has been established for the dismissal of plaintiff's complaint as against Dr. Tice and Long Island Radiology Associates. Plaintiff has not. submitted any medical proof in opposition and does not otherwise oppose this relief. Accordingly, Dr. Tice and Long Island Radiology Associates are granted summary judgment dismissing plaintiff's complaint as against them. The affidavit of Alan Geiss, M.D'., dated April 18th, 2000 submitted in support of the motion for summary judgment by Dr. Joel Benowitz is, however, insufficient to warrant summary judgment in favor of Dr. Benowitz. Specifically, Dr. Geiss does not discuss the acts of malpractice attributed to Dr. Benowitz by plaintiff's medical expert. For this reason alone, Dr. Benowitz' motion for summary judgment must be denied. In addition, the affidavit of plaintiff's medical expert, David Samuel Zimmon, M.D. raises a triable issue of fact as to whether Dr. Benowitz deviated from accepted standards of medical care by not recommending that non-surgical methods of removing gall stones be tried first since she was a high-risk surgical.candidate. Dr. Zimmon also expresses the opinion that Drs. Benowitz and Goldberg did not provide appropriate post-surgical consultation to plaintiff's gastroenterologists by failing to recommend surgical intervention to drain the abscess during their consultations with plaintiff's gastroenterologists. In this regard, the Court notes that the affidavit of Lawrence Gordon, M.D., dated May 8th, 2000, submitted in support of Dr. Goldberg's motion for summary judgment does not give the details of Dr. Goldberg's post-surgical consultation. Accordingly, the motion for summary judgment seeking dismissal of the complaint as against Dr. Goldberg is denied. Dr. Zimmon's opinion about the consultations provides another reason for denying Dr. Benowitz' motion. In the affidavit of Ronald Edward Greenberg, M.D., dated September 25th, 2000, submitted in support of the summary judgment motion by Drs. Fenster, Kadish, Jacob, and Zinberg and South Shore Gastroenterology, P-C., Dr. Greenberg expresses the following opinions: First, that the care and treatment rendered to plaintiff [by these defendants] was-&t all times appropriate and in
RF2 FOLK v. BENOWITZ, et al. Page 4. accordance with good and accepted medical practices"; Second, that "Dr. Fenster appropriately referred plaintiff to Dr. Benowitz for surgical evaluation for gallbladder surgery." Third, that: "The ERCP procedures at issue were warranted in light of plaintiff's complaints following gallbladder surgery." Fourth, that: "Postoperatively, the patient was treated properly with supportive and conservative measures without any deviation or departures thereof." The Court holds that Dr. Greenberg's affidavit is insufficient to make a prima facie showing with respect to any of the physicians belonging to the South Shore Gastroenterology Group or their professional corporation. It is well established that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate that absence of any material issues of fact." (Alvarez v Prospect Hosp., 68 NY2d 320, 324). And that: Failure to make such a prima facie showing requires a denial of the motion." (Id.). Such is the case here. Dr. Greenberg expresses conclusory opinions without setting forth the specific facts he relied upon in reaching those opinions. (See Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359). By contrast, Dr. Zimmon's opinions are supported by sufficient facts to raise triable issues as to Drs. Fenster, Kadish and Zinberg. With respect to Dr. Fenster, Dr. Zimmon states that: "Given that Ilana was of a young age and that the stones appeared with significant weight loss, and further taking into consideration that she suffered from juvenile rheumatoid arthritis, which made her a high risk surgical candidate, Dr. Fenster should have first recommended non-surgical methods for the removal of gallstones." Specifically, that: A course of Actigal, an agent used to dissolve gallstones, should have been attempted before surgical intervention was considered." This raises a triable issue as to whether Dr. Fenster deviated from accepted standards of medical care by referring plaintiff to Dr. Benowitz without first recommending nonsurgical methods. Dr. Zimmon further states that: Dr. Fenster deviated from accepted standards of medical care in going forth with the ERCP, despite the lack of objective evidence to justify the need for same." As to objective evidence, Dr. Zimmon's mentions a normal white count, normal liver tests and no direct evidence of biliary obstruction or cholangitis"; a CAT scan at Lourdes Hospital in Binghamton on December 14, 1995, which was normal"; and a Hida scan, which was performed at Dr. Benowitz' request on November 14, 1995, was normal and showed no evidence of an obstruction." This raises a triable issues as to whether Dr. Fenster deviated from accepted standards of medical care by going forward with the first ERCP and by recommending the second ERCP. Dr. Zimmon additionally states that: "The second ERCP was absolutely contraindicated as Dr. Fenster had just performed a precut sphincterotomy, which places a'patient at a much higher risk
..-.^ RE: FOLK v. BENOWITZ, et al. Page 5. for perforation and pancreatitis." Dr. Zimmon also states that: To have recommended a second ERCP, just one day following the initial ERCP', to a patient such as Ms. Folk who was already a high risk patient by virtue of her underlying autoimmune disease, constituted a deviation from accepted standards of medical care on both the part of Dr. Fenster and Dr. Kadish." Since the second ERCP was performed by Dr. Kadish, Dr. Zimmon has raised a triable issue as to whether Dr. Kadish deviated from accepted standards of medical care by going forward with the second ERCP. As to Dr. Zinberg, Dr. Zimmon states that: Despite having a normal white count, normal liver tests and no direct evidence of biliary obstruction or cholangitis, Dr. Zinberg recommended that Ilana undergo an ERCP to rule out a retained common duct stone." Dr. Zimmon further states that: "Dr. Zinberg deviated from accepted standards of medical care in recommending an ERCP to Ilana Folk as there was no objective evidence to justify the need for such an invasive procedure, especially in a young woman who was a high-risk patient." Dr. Zimmon additionally states that: "Ilana Folk had undergone a CAT scan at Lourdes Hospital in Binghamton on December 14, 1995, which was normal." Also that a Hida scan, which was performed at Dr. Benowitz's request on November 14, 1995, was normal and showed no evidence of an obstruction. Therefore, the first ERCP was not indicated." This is sufficient to raise a triable issue as to whether Dr. Zinberg deviated from accepted standards of medical care by recommending that plaintiff undergo an ERCP. Dr. Zimmon's affidavit is, however, deficient concerning Dr. Jacob. While Dr. Zimmon's states that Dr. Jacob, along with the other physicians of South Shore Gastroentrology, failed to deal with the abscesses in an appropriate manner; failed to call in a rheumatology consult during plaintiff's first two hospital admissions following the perforation of the duodenum; and deviated from accepted standards of care by recommending two back to back high risk ERCPs, Dr. Zimmon's does not identify what evidence he relied upon to show that Dr. Jacob was involved in these alleged acts of malpractice. Accordingly, the motions for summary judgment are denied, except as to Dr. Harold M. Tice and Long Island Radiology Associates, P-C., againstwhomplaintiff's complaint is hereby severed and dismissed. This decision constitutes the order of the court. - Dated: d- as_-01 THOMAS P. PliaAN