Opinion
353 Index No. 805010/19 Case No. 2022–04496
06-01-2023
Michael CLIFFORD et al., Plaintiffs–Respondents, v. WHITE PLAINS HOSPITAL MEDICAL CENTER also known as White Plains Hospital et al., Defendants–Appellants, John Does 1–10 etc., et al., Defendants.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Deirdre E. Tracey of counsel), for White Plains Hospital Medical Center, Rafael Torres, M.D. and Dean Straff, M.D., appellants. Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for James Wyss, M.D. and Hospital for Special Surgery, appellants. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondents.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Deirdre E. Tracey of counsel), for White Plains Hospital Medical Center, Rafael Torres, M.D. and Dean Straff, M.D., appellants.
Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for James Wyss, M.D. and Hospital for Special Surgery, appellants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondents.
Kapnick, J.P., Oing, Gesmer, Singh, Shulman, JJ.
Order, Supreme Court, New York (Erika M. Edwards, J.), entered on or about October 3, 2022, which, to the extent appealed, denied the summary judgment motions of defendants Hospital for Special Surgery (HHS) and James Wyss, M.D. (collectively the HHS defendants) and defendants White Plains Hospital Medical Center, Rafael Torres, M.D., and Dean Straff, M.D. (collectively the WPH defendants), unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment dismissing the complaint.
The HHS and WPH defendants each established entitlement to summary judgment with the affidavits of expert witnesses who averred that, in the face of no symptomology of infection or complaints relative to his neck, defendants were not required to include a cervical spinal abscess in their differential diagnosis of plaintiff Michael Clifford, and their purported failures to perform blood testing for infection or cervical spine imaging were not deviations from the standard of care (see Cruz v. New York City Health & Hosps. Corp., 188 A.D.3d 592, 137 N.Y.S.3d 2 [1st Dept. 2020] ; Perez v. Riverdale Family Med. Practice, P.C., 177 A.D.3d 554, 112 N.Y.S.3d 728 [1st Dept. 2019] ). In opposition, plaintiff's expert failed to raise an issue of fact. The assertion that an emergency lumbar spine MRI was required in the face of plaintiff's low back pain and that the negative results of that exam would have led the doctors to further testing including a cervical MRI and blood work, thus diagnosing the cervical abscess, is hindsight that cannot be employed to avoid the fact that defendants were not required to investigate an otherwise unindicated condition (see Rotante v. New York Presbyt. Hosp.- N.Y. Weill Cornell Med. Ctr., 175 A.D.3d 1142, 107 N.Y.S.3d 289 [1st Dept. 2019] ; David v. Hutchinson, 114 A.D.3d 412, 980 N.Y.S.2d 38 [1st Dept. 2014] ; Rivera v. Greenstein, 79 A.D.3d 564, 914 N.Y.S.2d 94 [1st Dept. 2010] ).
Furthermore, as to the HHS defendants, plaintiff's expert did not set forth that he had ever diagnosed or treated the back injuries and/or conditions at issue here, and was not qualified to opine on the standard of care relative to Dr. Wyss (see Villani v. Kings Harbor Multicare Ctr., 190 A.D.3d 534, 140 N.Y.S.3d 32 [1st Dept.], lv dismissed 37 N.Y.3d 1085, 155 N.Y.S.3d 391, 177 N.E.3d 587 [2021] ; see also Daniele v. Pain Mgt. Ctr. of Long Is., 168 A.D.3d 672, 91 N.Y.S.3d 496 [2nd Dept. 2019] ).