Opinion
Index No. EFCV-19-155464 IAS No. 44-1-2019-0429
08-04-2020
TODD SEARS and SHAUNA SEARS, Plaintiffs, v. MARK R LAFTAVI, MD, TAMER A MALIK, MBBCH, RAUF SHAHBAZOV, MD and JOHN AND JANE DOES 1-50 (said names being fictitious, it being the Intention of Plaintiff to designate any and all parties. Individuals, entities, or corporations, if any, having or claiming a knowledge of the foregoing complaint), Defendants.
Appearances: Karasik Law Group, PC (Alexander Karasik, Esq., of counsel), attorneys for Plaintiffs; Sugarman Law Firm, LLP (Zachary M. Mattison, Esq., of counsel), attorneys for Defendants, Mark R. Laftavi, M.D. and Rauf Shahbazov, M.D.; Gale, Gale, & Hunt, LLC (Matthew J. VanBeveren. Esq., of counsel), attorneys for Defendant Tamer A. Malik, MBBCH.
Unpublished Opinion
Appearances: Karasik Law Group, PC (Alexander Karasik, Esq., of counsel), attorneys for Plaintiffs; Sugarman Law Firm, LLP (Zachary M. Mattison, Esq., of counsel), attorneys for Defendants, Mark R. Laftavi, M.D. and Rauf Shahbazov, M.D.; Gale, Gale, & Hunt, LLC (Matthew J. VanBeveren. Esq., of counsel), attorneys for Defendant Tamer A. Malik, MBBCH.
DECISION & ORDER
MARY M. FARLEY, J. S.C.
On October 23, 2018, two surgical procedures were performed at Upstate University Hospital ("Upstate"): kidney removal (nephrectomy) from Plaintiff Shauna Sears ("Shauna") for donation to her father-in-law, Plaintiff Todd Sears ("Todd"); and, (2) attempted transplant of Shauna's kidney into Todd, which was aborted mid-procedure. As now pertinent, Plaintiffs' Complaint (Doc. 1) asserts four claims by Shauna against Defendants Mark R. Laftavi, M.D. ("Laftavi") and Rauf Shahbazov ("Shahbazov"): (1) medical malpractice (Complaint at ¶¶ 26-43); (2) negligence id at ¶¶ 44-57); (3) "misdiagnosis" (id at ¶¶ 58-68); and, (4) lack of informed consent (id at ¶¶ 69-76). Laftavi and Shahbazov (collectively, "Movants") now move, prior to depositions being conducted or completion of discovery, for summary judgment against Shauna's claims, and against both Shauna's and Todd's "misdiagnosis" cause of action. For the reasons which follow, the Court: (1) grants, as unopposed, the motion dismissing both Plaintiffs' "misdiagnosis" claim; and, (2) denies the motion dismissing Shauna's medical malpractice, negligence and lack of informed consent causes of action.
Although Upstate was originally named as a Defendant, this action has been discontinued as against it by Stipulation signed by counsel for all parties. See Stipulation of Discontinuance (Doc. 18), filed July 24, 2019. Accordingly, the Court on its own motion amends the case caption, deleting Upstate as a Defendant.
SUMMARY OF FACTS AND ALLEGATIONS
Shauna is married to Todd's son. Affidavit of Shauna Sears (Doc. 49) ("Shauna aff.") at ¶ 3. On or about March 8, 2017, Todd became a patient at Upstate for the purpose of undergoing a kidney transplant, with a living kidney to be donated by his wife's friend. Laftavi aff. (Doc. 37) at ¶ 4 & Exs. 1-3 (Docs. 38-40). Transplant surgeries were originally scheduled for December 5, 2017, but were twice postponed owing to Todd's medical condition. Id. at ¶¶ 5-6. During this time, it was discovered that the original intended donor was no longer suitable. Id. at ¶ 7 & Ex. 4 (Doc. 41).
At some point prior to October 23, 2018, Shauna tested as a positive match for Todd, and volunteered to give him one of her kidneys. Shauna aff. at ¶ 3. In his affidavit, Laftavi stated he examined Shauna on one occasion "to clear her as a donor", but avers this examination "was not related to the diagnoses at issue in this action." Laftavi aff. at ¶ 9. Movants have not submitted to the Court any office note or medical record - if one exists - documenting this undated examination by Laftavi.
Laftavi and Shahbazov "are two members of a multi-disciplinary transplant team at Upstate []." Id. at ¶ 3. According to Laftavi, Shauna's and Todd's surgeries -joint nephrectomy and renal transplant -- were scheduled for and commenced on October 23, 2018, and one of Shauna's kidneys was extracted that day. Id., at ¶ 8. The listing of "surgeon(s)" in Shauna's operative note (Doc. 43 at 2-3) includes Laftavi and Shahbazov. Laftavi's affidavit acknowledges "the operative notes for the joint nephrectomy and [Todd's] aborted transplant procedure do not clearly delineate which medical professional provided which aspect of the procedures [ ]." Laftavi aff. at ¶ 9. Nonetheless, Laftavi avers that he and Shahbazov "were directly involved only in that portion of the operation that involved performing surgery on Todd Sears." |d (emphasis added). In contrast, Shauna avers that she was "prepped for surgery, put under anesthesia, and my kidney was removed by defendants Malik, Laftavi, and Shahbazov." Shauna aff. at ¶ 4.
According to Laftavi, the implantation procedure was aborted "when Todd was found to have a mass that was cancerous but had not appeared on the preoperative CT scan." Laftavi aff. at ¶ 8. In this regard, Todd's operative report (Doc. 42) states that a "hard mass" was discovered during surgery, which was biopsied, and a "[f]rozen section revealed a malignant cells [sic]." As a result, "we made a decision to abort the procedure." Id; see Laftavi aff. at ¶ 8. Among other things, Todd's operative report lists Laftavi and Shahbazov as his surgeons. Id. at ¶ 3.
Todd's procedure having been aborted, the issue arose as to what to do with Shauna's kidney. Here, Laftavi and Shauna sharply disagree. In his affirmation, Laftavi avers three options existed: "(1) transplanting the kidney back into Shauna Sears (auto-transplant); (2) giving it to another patient in need; or, (3) to just discard the kidney." Laftavi aff. at ¶ 10. Laftavi avers that he personally discussed these options with Shauna (id, at ¶ 11 & Ex. 7 [Doc. 44]); answered all of her questions and those of her family (Laftavi aff. at ¶12); and, Shauna "alone decided that her kidney should not be auto-transplanted back into her body, but [ ] should instead be given to another patient in need on the transplant list" (id. at ¶ 13). The kidney was then offered to a young patient with diabetes, Id. at ¶ 12. Laftavi avers he "neither induced nor influenced [Shauna's] decision in any way." Id. at ¶ 13. Movants do not submit any "consent form" or other documentation, or state whether such a form was signed by Shauna (or even exists).
In her affidavit, Shauna avers her consent was neither fully informed nor voluntary. She states:
"As I was barely coming out from under anesthesia, it is my understanding that I was informed that I will not be able to donate my kidney to Todd. I was then urged to donate my kidney to a total stranger by Defendant Laftavi. At that time, I was extremely confused and upset and under the influence of anesthesia provided by the Hospital. I had no idea what was happening and was not in the right state of mind and was mentally and physically confused. I did not fully understand what was being asked of me." Shauna aff. at ¶ 5.
As a result, Shauna states she "was wrongfully pressured" to donate the kidney to a "total stranger" (Id. at ¶¶ 5, 6); "had I been thinking clearly, I would have chosen to put the kidney back in my body" (icL at ¶ 6).
DISCUSSION
A. Contentions of the Parties
Laftavi and Shahbazov argue that summary judgment must be granted for three reasons. First, they assert that a separate cause of action for "misdiagnosis" does not exist under New York law, and, thus, Plaintiffs' third cause of action must be dismissed in its entirety. See Affidavit of Zachary M. Mattison, Esq. ("Mattison") dated February 11, 2020 ("Mattison aff') (Doc. 28) at ¶¶ 10-13; Mattison Reply Affidavit dated July 7, 2020 ("Mattison Reply aff.") (Doc. 52), at ¶ 5. Plaintiffs do not oppose this aspect of Laftavi's and Shahbazov's motion. Accordingly, the Court dismisses Plaintiffs' Third Cause of Action (Complaint at ¶¶ 58-68) in its entirety.
Second, Laftavi and Shahbazov assert that summary judgment must be granted dismissing Shauna's malpractice and negligence causes of action because they owed no duty to her as the kidney donor. Here, Movants argue that "the duty allegedly breached was owed to Todd, and Shauna may not sustain either a negligence or medical malpractice cause of action against [Movants] without the breach of the duty owed to her." Mattison aff. at ¶ 16 (italics in original); see Mattison Reply aff. at ¶ 21. In opposition, Plaintiffs argue that Shauna was a patient of both Laftavi and Shahbazov, who accordingly owed a duty to her as their patient, as well as to exercise "due diligence in clearing all obstacles to successful transplant of her donated kidney [to] Todd." Affirmation of Alexander Karasik, Esq. dated April 30, 2020 ("Karasik aff.") (Doc. 48) at ¶¶ 6, 21. Plaintiffs also assert Laftavi's and Shahbazovs motion is premature because "there has been no discovery in this case whatsoever, other than an exchange of a bill of particulars", and "meritorious grounds founded on the medical records [ ] will be uncovered at depositions [ ]." Id., at ¶¶ 5, 7.
Third, Laftavi and Shahbazov argue summary judgment must be granted against Shauna's informed consent cause of action (Complaint at ¶¶ 69-76), asserting Shauna "voluntarily chose to have her kidney donated to a stranger [ ] (rather than have it placed back into her own body) after the transplant of that organ into Todd Sears was aborted." Mattison aff. at ¶ 3. Here, Movants rely on Laftavi's averment that Shauna's decision was both informed and voluntary, and that he "neither induced nor influenced that decision in any way." Laftavi aff. at ¶ 13. In opposition, Shauna avers that she did not provide true consent because Laftavi "improperly coerced her" (Karasik aff. at ¶ 11), at a time when she was "heavily sedated minutes after her kidney extraction" (id.); "barely coming out of anesthesia" (Shauna aff. at ¶ 5); "had no idea what was happening and was not in the right state of mind" (id.): and, "did not fully understand" (id) what was being asked of her. Plaintiffs also assert the summary judgment motion with respect to Shauna's informed consent claim is premature.
In addressing the parties' contentions, the Court first sets forth the applicable standard for summary judgment motions. Next, the Court addresses Laftavi's and Shahbazov's motion with respect to Shauna's malpractice and negligence causes of action. Third, the Court addresses Shauna's informed consent claim. Finally, the Court addresses Plaintiffs' argument (Karasik aff. at ¶¶ 5, 23) that summary judgment must be denied because facts essential to their opposition may exist but cannot now be stated.
B. Summary Judgment Standard
"On a motion for summary judgment, the movant has the initial burden to establish its prima facie entitlement to summary judgment as a matter of law by submitting evidentiary proof in admissible form, demonstrating the absence of any material issues of fact." Reed v. New York State Electric & Gas Corp., 183 AD.3d 1207, 1209 (3d Dep't 2020) (internal quotation marks and citation omitted); accord: Hope v. Hadlev-Luzerne Pub. Lib.. 169 A.D.3d 1276, 1277 (3d Dep't 2019). "[A] defendant cannot satisfy this burden by merely pointing to gaps in a plaintiffs proof." O'Connor v. Aerco Intl., Inc.. 152 A.D.3d 841, 842 (3d Dep't 2017). "Summary judgment is a'drastic remedy' and will only be granted if the moving party has 'tendered] sufficient evidence to demonstrate the absence of any material issues of fact.'" Titus v. Van Houter, 182 A.D.3d 755, 755 (3d Dep't 2020) (citations omitted). "If the moving party fails to meet [its] initial burden, summary judgment must be denied regardless of the sufficiency of the opposing papers." Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734 (2014) (internal quotation marks and citation omitted); accord: Perkins v. County of Tompkins, 179 A.D.3d 1334, 1335 (3d Dep't 2020).
"[T]he court's function on a motion for summary judgment is issue finding not issue determination and, where a genuine issue of fact exists, summary judgment must be denied." McDav v. State of New York, 138 A.D.3d 1359, 1359 (3d Dep't 2016) (internal quotation marks and citations omitted); accord: State of New York v. International Fid. Ins. Co., 272 A.D.2d 726, 729 (3d Dep't 2000). On such a motion, "the evidence produced by the movant must be viewed in the light most favorable to the nonmovant, affording the nonmovant every favorable inference." Framan Mech., Inc. v. State Univ. Constr. Fund. 182 A.D.3d 947, 948 (3d Dep't 2020) (internal quotation marks and citation omitted); accord: Giglio v. Saratoga Care, Inc., 117 A.D.3d 1143, 1145 (3d Dep't 2014). "[Credibility questions [ ] cannot be answered in the summary judgment context." Murphy v. Hometown Real Estate, 132A.D.3d 1126, 1128 (3d Dep't 2015) (citation omitted). "On a motion for summary judgment, we do not assess credibility." Morales v. Diqesare Mech., Inc., 176 A.D.3d 1442, 1443 (3d Dep't 2019) (citations omitted).
C. Shauna's Medical Malpractice and Negligence Causes of Action
"[T]he essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury." Howard v. Stanqer, 122A.D.3d 1121, 1123 (3d Dep't 2014) (internal quotation marks and citation omitted), lv dismissed, 24 N.Y.3d 1210 (2015); accord: Bell v. Ellis Hospital, 50 A.D.3d 1240, 1241 (3d Dep't 2008); Messeroux v. Maimonides Med. Ctr., 181 A.D.3d 583, 584-85 (2d Dep't 2020). Before a court may address whether there has been a deviation from accepted medical practice, however, it must first determine if defendant physician owed a duty to the plaintiff under the particular circumstances at issue. Burtman v. Brown, 97 A.D.3d 156, 161-62 (1st Dep't 2012). "[I]n order to reach any discussions about deviation from accepted medical practice, it is necessary first to establish the existence of a duty." McAlwee v. Westchester Health Assoc, PLLC, 163 A.D.3d 549, 551 (2d Dep't 2018) (internal quotation marks and citation omitted). Whether such a duty exists is a question of law for the Court. McNultv v. City of New York, 100 N.Y.2d 227, 232 (2003). "The existence and scope of a physician's duty of care is a question of law to be determined by the court." Romanelli v. Jones, 179 A.D, 3d 851, 853 (2d Dep't 2020) (citation omitted); accord: Cregan v. Sachs. 65 A.D.3d 101, 109 (1st Dep't 2009).
"[T]here is no question that [a physician] assum[es] a legal duty to provide appropriate care to [a] patient when he accept[s] [him] as a patient." Magqio v. Werner, 213 A.D.2d 883, 884 (3d Dep't 1995). "[A] doctor who actually treats a patient has 'a duty of care' toward that patient." Dallas-Stephenson v. Waisman. 39 A.D.3d 303, 307 (1st Dep't 2007) (citing McNultv, 100 N.Y.2d at 232). When a physician undertakes the care or treatment of a patient that physician is under a duty to do so in a reasonably prudent manner. Eg, Nestorowich v. Ricotta, 97 N.Y.2d 393, 398 (2002); see PJI 2:150. "[W]hether a physician-patient relationship exists is generally an issue of fact." Tom v. Sundaresan, 107 A.D.3d 479, 479 (1st Dep't 2013) (citing Cogswell v. Chapman, 249 A.D.2d 865 [3d Dep't 1998]); see Forrester v. Zwanger-Pesiri Radiology Group, 274 A.D.2d 374, 375 (2d Dep't 2000) (finding issues of fact as to whether a physician-patient relationship existed; summary judgment denied); see also E.K. v. Tovar, __A.D.3d__, 2020 Westlaw 3980680 (2d Dep't July 15, 2020) (physician's summary judgment motion denied when "record does not conclusively establish his absence" from delivery room).
Laftavi and Shahbazov premise their motion on the Third Department's decision in Moore v. Shah. 90 A.D.2d 389 (3d Dep't 1982), arguing that Moore established they owed no duty of care to Shauna, as kidney donor. Mattison aff. at ¶¶ 3, 16; see Mattison Reply aff. at ¶ 21. In Moore, which the Third Department described as a "case of first impression for an appellate court", the court addressed whether a defendant physician owes a duty to plaintiff kidney donor bringing a claim against a physician for alleged malpractice in diagnosing and treating "his patient, the donee [ ]." 90 A.D.2d at 389 (emphasis added). Moore held that the physician owed no duty to the donor, and dismissed the donor's complaint. The Third Department, however, specifically limited its ruling in Moore to the facts and allegations before it, stating that a physician did not owe a duty to someone "other than [the physician's] patient." Id. at 391. In reaching its conclusion, the Third Department in Moore reasoned: "Since plaintiff [kidney donor] was never defendant's patient, no duty to him originally existed." Id., at 390 (emphasis added).
In opposition, Shauna argues the record contains proof that she was Laftavi's and/or Shahbazov's patient, and they thus owed her a duty of reasonable care. In this regard, the record discloses the following: (1) Shauna's affidavit states Laftavi and Shahbazov "prepped [her] for surgery, put [her] under anesthetic, and removed her kidney" (see Shauna aff. at ¶ 4); the list of "surgeon(s)" in Shauna's operative note (Doc. 43) includes Laftavi and Shahbazov; (3) although Laftavi avers that he and Shahbazov were "directly" involved only in Todd's surgery (Laftavi aff. at ¶ 9), he does not state whether, or to what extent, Movants may have been "indirectly" involved in Shauna's nephrectomy; and, (4) Laftavi's admission that he "examined Shauna Sears one time" (id). From this, Shauna asserts a jury could conclude she was Laftavi's and/or Shahbazov's patient; they thereby owed her a duty of reasonable care; and, thus, Moore is distinguishable. See Karasik aff. at ¶¶ 6, 8.
The Court first addresses Movants' argument that the Court should disregard Shauna's assertion that she was a patient of Laftavi and/or Shahbazov. Here, Movants take issue with Shauna's averment (Shauna aff. at ¶4) that they were involved in her treatment, including the surgical extraction of her kidney, asserting Shauna cannot have "personal knowledge of who extracted her kidney [ ] because she was under sedation at the time and could not perceive anything." Mattison Reply aff. at ¶19. This argument fails for four reasons. First, and as noted above, Shauna's operative report includes both Laftavi and Shahbazov in the list of "surgeon(s)." See Doc. 43 at pp. 2-3. Second, although Laftavi's affidavit asserts he and Shahbazov were directly involved" (see Laftavi aff. at ¶ 9 [italics added]) only in Todd's surgery, this begs the question of whether, or how, Laftavi (and/or Shahbazov) may have been indirectly involved in Shauna's procedure. Third, Laftavi admits in his affidavit (id) that he "examined" Shauna on one occasion, but neither describes that examination nor furnishes medical records (if they exist) documenting this examination. Finally, depositions and further discovery may shed light on all these issues.
Several decisions - including one from the Fourth Department - have addressed a physician's liability to a kidney donor based upon either medical malpractice or informed consent theories. In Backus v. Kaleida Health, 91 A.D.3d 1284 (4th Dep't 2012), the Fourth Department upheld a verdict in favor of plaintiff kidney donor. Plaintiff in Backus brought an action against several defendants including, inter alia, Laftavi, "who assisted in various times in plaintiffs surgery." 91 A.D.3d at 1285. In determining Supreme Court properly charged res ipsa loquitur and affirming the verdict (albeit with remittitur) against all defendants, the court relied upon proof from which a jury could find each defendant provided medical treatment to plaintiff kidney donor. Id. at 1286-87.
In Montalto v. Stoff, 23 Mass. L. Rptr. 217, 2007 Westlaw 3013204 (Mass Superior Ct. 2007), plaintiff kidney donor (Francis) brought a malpractice action against defendant surgeon (Dr. Ayvazian), alleging (1) Dr. Ayvazian caused Francis to undergo "unnecessary and dangerous" surgery; and, (2) had Dr. Ayvazian provided correct information regarding the donee's condition, "Francis would not have consented to the treatment, nameiy, a kidney transplant." 2017 Westlaw at *1, 4. Dr. Ayvazian moved for summary judgment, asserting "he provided no care to Francis in connection with the kidney donation", and thus owed no legal duty to him. Id. at * 1. The Montalto opinion outlined the following proof presented by Francis: (1) Dr. Ayvazian "evaluated Francis" pre-surgery; (2) Dr. Ayvazian's post-evaluation report discussed his issues with urinary frequency and urgency, and indicated he advised Francis keep a voiding diary; (3) laboratory records "list[ed] Dr. Ayvazian as Francis' attending physician"; and, (4) the information which Dr. Ayvazian gave to Francis regarding the donee's medical need for a transplanted kidney was incorrect. Id at*2-4. From this, the court in Montalto concluded:
"there is sufficient evidence, at this juncture, to support a finding that a physician-patient relationship existed between Dr. Ayvazian and Francis. This is not a case where Dr. Ayvazian had no contact with Francis. Indeed, Dr. Ayvazian personally examined Francis prior to his donation, and his advice regarding Montalto's condition induced Francis to donate his kidney in the first place. Id., at * 4 (emphases added).Montalto denied Dr. Ayvazian's motion for summary judgment. Other cases relied upon by Laftavi and Shahbazov are analogous to Moore, and distinguishable from Backus and Montalto. In Dabdoub v. Ochsner Clinic, 802 So.2d 651 (La App 2000), the Louisiana court followed Moore in affirming judgment against plaintiff kidney donor who "was never a patient of the defendants [and there] was never a doctor-patient relationship from which a duty would arise." 802 So.2d at 654 (emphases added). Accord: Malik v. William Beaumont Hosp., 168 Mich.App. 159, 169 (1987) (no physician-patient relationship between plaintiff kidney donor and defendant physicians; malpractice action dismissed); Ornelas v. Fry, 151 Ariz 324, 329 (1986) (affirming directed verdict against plaintiff kidney donor who "failed to allege or prove the existence of a physician/patient relationship"). In both Sirianni v. Anna, 55 Misc.2d 553 (Sup Ct Niagara County 1967) and Petersen v. Faberman. 736 S.W.2d 441 (Mo App 1987), the court concluded that the "rescue doctrine" did not support a cause of action on behalf of plaintiff kidney donors against physicians who treated the prospective kidney recipients. Neither Malik nor Ornelas concerned the alleged failure to obtain informed consent.
The Court concludes that Moore is factually distinguishable from the instant case, and does not control here. As in Backus and Montalto, the record here includes proof upon which a factfinder could determine Laftavi and/or Shahbazov provided medical treatment to Shauna, and thus owed her a duty of reasonable care. Based on this proof, and "view[ing] the evidence in a light most favorable to the nonmoving party and according her] the benefit of every reasonable inference" (Framan Mech. Inc., Giglio), the Court concludes there is a triable issue of fact as to whether Laftavi and/or Shahbazov provided medical treatment to Shauna as their patient. On summary judgment, the Court's function is issue finding, not issue resolution (McDav). Given that a physician who "actually treats" (Dailas-Stephenson, McNultv) is obligated to exercise reasonable care in that treatment (Nestorowich), it follows that the issue of whether Laftavi and/or Shahbazov treated Shauna as their patient - and thus owed her a duty of care -- is for the jury.
D. Shauna's Informed Consent Cause of Action
Laftavi and Shahbazov also seek summary judgment against Shauna's "informed consent" claim [Complaint at ¶¶ 69-76]. "To establish a cause of action to recover damages [for medical malpractice] based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury." Cole v. Chun, _ A.D.3d _, 2020 Westlaw 3847491 at * 2 (3d Dep't July 9, 2020) (internal quotation marks and citations omitted); accord: Schilling v. Ellis Hosp., 75 AD.3d 1044, 1045 (3d Dep't 2010); Santilli v. CHP Inc., 274 A.D.2d 905, 907 (3d Dep't 2000); see New York Public Health Law § 2805-d; see also PJI 2:150A. "The mere fact that the plaintiff signed a consent form does not establish the defendants' prima facie entitlement to judgment as a matter of law." Schussheim v. Barazani. 136 A.D.3d 787, 789 (2d Dep't 2016).
The Court first considers whether Laftavi and Shahbazov met their initial burden on motion with respect to Shauna's informed consent cause of action. To do so, movants must establish that they "either [1] disclose[d] the risks, benefits and alternatives to the procedure or treatment that a reasonable practitioner would have disclosed or [2] that a reasonable person in the plaintiffs position, fully informed, would have elected ... to undergo the procedure or treatment." Rivera v. Albany Med. Ctr. Hosp., 119 A.D.3d 1135, 1138 (3d Dep't 2014) (internal quotation marks and citations omitted). Defendant physicians' sworn statements "can be sufficient to meet this initial burden, provided that they are "detailed, specific and factual in nature." Id., (emphasis added; internal quotation marks and citations omitted), In Cole, 2020 Westlaw at * 2, the Third Department concluded defendant did not meet his burden on motion when he failed to establish that the information given to plaintiff "was of the same breadth and depth that a reasonable person, informed as plaintiff allegedly was, would have elected to continue with the surgery." In Walker v. Saint Vincent Catholic Med. Ctrs., 114 A.D.3d 669, 671 (2d Dep't 2014), the Second Department determined that defendant's burden on motion was not met because he "failed to present proof that plaintiff had been informed of reasonably foreseeable risks of procedure"; the consent form signed by plaintiff did not contain any details about the operation or its alternatives; and movant "failed to establish that a reasonably prudent person in the plaintiffs position would not have declined to undergo the procedure if [ ] she had been fully informed." 114 A.D.3d at 670-71. In Dyckes v. Stabile. 153 A.D.3d 783 (2d Dep't 2017), the court held that defendant did not met his burden because he failed to establish whether plaintiff was informed about the procedures, the alternatives thereto, and the reasonably foreseeable risks and benefits of the proposed treatment and alternatives. 153 A.D.3d at 785. Accord: Chan v. Toothsavers Dental Care, Inc., 125 A.D.3d 712, 714 (2d Dep't 2015); compare Khosrova v. Westermann. 109 A.D.3d 965, 967 (2d Dep't 2013) (defendant's burden met when documentary evidence, including consent form, established informed consent).
Here, Laftavi's affidavit avers he "discussed options" with Shauna (Laftavi aff. at ¶ 11) and "answered all of her questions and those of her family [ ] and instructed her to discuss the situation with her family and to come to a decision" (id. at ¶ 12). This does not comprise the "detailed, specific, and factual" proof required by Rivera. Notably, Movants do not present documentary proof - such as a signed consent form -that Laftavi and/or Shahbazov at any time informed Shauna the risks and benefits of the treatment options, or that Shauna consented to her kidney being provided to a stranger in the event it could not be implanted in Todd. Accordingly, the Court concludes that Movants have not met their initial burden on motion with respect to the informed consent cause of action.
In any event, disagreement between defendant doctor and plaintiff as to whether plaintiff had been properly informed "is sufficient to raise a triable issue of fact as to whether a fully informed reasonable person would have elected for the surgery." Rivera, at 1138. Thus, in Conto v. Lynch, 122A.D.3d 1136 (3d Dep't 2014), the Third Department denied summary judgment where plaintiff's testimony contradicted medical records indicating that she and defendant had "discussed fully" the potential consequences of surgery. 122 A.D.3d at 1139. See also Mathias v. Capuano, 153 A.D.3d 698, 700 (2d Dep't 2017) (summary judgment denied where plaintiff's deposition testimony "revealed factual disputes as to whether the plaintiff was properly advised before signing [consent] forms"); Koi Hou Chan v. Yeunq. 66 A.D.3d 642, 643-44 (2d Dep't 2009) (summary judgment denied where testimony presents "a factual dispute as to whether [defendant] informed the plaintiff of any of the foreseeable risks, benefits, or alternatives").
The Court concludes that the admissible proof presents triable issues of fact as to whether Laftavi obtained - and Shauna gave - knowing and informed consent to her kidney being offered to an unknown recipient, rather than being auto-implanted back into her. In this regard, Laftavi avers (Laftavi aff. at ¶¶ 11-13) he fully informed Shauna of the three treatment options; Shauna's decision was informed and voluntary; and, he "neither induced nor influenced that decision in any way." Shauna directly contradicts Laftavi, averring (Shauna aff. at ¶¶ 5. 6) she was under the effects of anesthesia and "extremely confused"; she "had no idea" what was happening; she was "pressured" into donating the kidney; and, "had [she] been thinking clearly", she would have chosen the auto-implant option. Significantly, Movants do not offer any signed "consent" form, or aver that written consent was ever asked of or obtained from Shauna. Accordingly, the Court denies Laftavi's and Shahbazov's summary judgment motion with respect to the informed consent cause of action.
Finally, the Court addresses Laftavi's and Shabazov's argument that Shauna's informed consent cause of action must be dismissed because the Complaint and bills of particulars do not specifically allege that they "placed undue pressure on Shauna [ ] to donate her kidney to a third party", and thereby coerced her to do so. Mattison Reply aft at ¶ 10. According to Movants, "this new 'coercion' theory must be disregarded by the Court." Id at ¶ 12. The Court rejects Movants' argument for several reasons.
First, Plaintiffs' Complaint alleges the necessary elements of this cause of action, specifically averring that Defendants "failed to obtain her informed consent." Complaint (Doc. 1) at ¶ 70 (emphasis added). Second, paragraphs 17 of Movants' May 16, 2019, Demands for Bills of Particulars (Docs. 33, 34) request Plaintiffs (1) provide "specific time or times or place which plaintiff will allege that any discussion was had with respect to the risks, hazards and alternatives incident to the treatment herein"; and, (2) set forth "in detail and with completeness, the substance of the discussion had in each and every instance." In response, paragraphs 17 of Plaintiffs' July 10, 2019, verified bills of particulars (Docs. 35, 36), state: "Further discovery and depositions of all parties are required. To be provided later." Movants did not object to this response, seek a further bill or particulars, or move for the Court to direct a more specific bill of particulars during the seven (7) months between service of Plaintiffs' bills of particulars and when Laftavi and Shahbazov filed their motion on February 11, 2020. As a result, Movants have waived this argument. See Hess v. Wessendorf, 102 AD.2d 926, 926 (3d Dep't 1984) (defendant waived objection by failing to follow procedure of C.P.L.R. 3042 to challenge sufficiency of bill of particulars), appeal dismissed, 64 N.Y.2d 602 (1984). Third, it is hornbook law that the purpose of a bill of particulars is not to provide evidentiary information. Eg,, Liddell v. Cree, 233 A.D.2d 593, 594 (3d Dep't 1996) (medical malpractice action; demand for bill of particulars "not to be used to obtain information which is evidentiary in nature"); Harris v. Ariel Transp. Corp., 37 A.D.3d 308, 309 (1st Dep't 2007) (bill of particulars "need not set forth a matter that is evidentiary in nature, which is more appropriately obtained through depositions and expert disclosure"); accord: Colwin v. Katz. 90 A.D.3d 516, 517 (1st Dep't 2011).
Finally, and in any event, the Preliminary Conference Stipulation and Order ("PCSO") signed by counsel and "So Ordered" by the Court on September 3, 2019 (Doc. 27) states that bills of particulars have been "already provided." PCSO at ¶ (2) (b). By failing to take issue with Plaintiffs' bills of particulars served well in advance of Laftavi's and Shahbazov's summary judgment motion, and stipulating that bills of particulars were "already provided", Laftavi and Shahbazov may not now be heard to argue that Plaintiffs' allegedly defective bills of particulars require summary judgment.
Although the PCSO is not included in the motion papers before the Court, it is in the New York State Courts Electronic Filing System for this action, of which the Court takes judicial notice. "It is well settled that a court may take judicial notice of its own prior proceedings and orders." Matter of Shirley v. Shirley, 101 A.D.3d 1391, 1394 (3d Dep't 2012): Matter of Sabrina B. v. Jeffrey B.. 179 A.D.3d 1339, 1441 (3d Dep't 2020) (quoting Matter of Shirley).
E. Prematurity of Summary Judgment Motion
Movant's summary judgment motion with respect to Shauna's negligence, medical malpractice, and informed consent causes of action must be denied for an additional reason. Titled "Facts unavailable to opposing party", C.P.L.R. 3212 (f) provides:
Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just. (emphasis added).
"[S]ummary judgment [ ] is not justified where the existence of essential facts depends upon knowledge exclusively within the possession of the moving party which might well be disclosed on examination before trial." CIT Group/Equip. Fin. Inc. v. Abele Tractor & Equip. Co. Inc., 213 A.D.2d 820, 821 (3d Dep't 1995). "[A] summary judgment motion is properly denied as premature when the nonmoving party has not been given reasonable time and opportunity to conduct disclosure relative to pertinent evidence that is within the exclusive knowledge of the movant." Greener v. Town of Hurley, 140 A.D.3d 1285, 1286 (3d Dep't 2016) (internal quotation marks and citations omitted; emphases added).
In Imrie v. Ratto, 145 A.D.3d 1358 (3d Dep't 2016), the Third Department reversed Supreme Court's grant of summary judgment, holding the motion should have been denied as premature. Id. at 1361. In that case, plaintiff had sought records from defendant insurance company, and to depose its representatives, on the issues of mutual mistake or fraudulently induced unilateral mistake. The Third Department found plaintiffs argument that defendant "has exclusive possession of employees and materials that could shed light on its intent as to the insurance policy [was] patently reasonable and not merely speculation." Id. at 1360-61 (emphases added). Nonetheless, summary judgment should not be denied or deferred pursuant to C.P.L.R. 3212 (f) where plaintiff fails to make "some evidentiary showing suggesting that completion of discovery will yield material and relevant evidence." Zinter Handling, Inc. v. Britton. 46 A.D.3d 998, 1001 (3d Dep't 2007) (citation omitted).
Here, whether - and to what extent - Laftavi and/or Shahbazov were involved in Shauna's surgery and "actually treatfed]" (Dallas-Stephenson) her lies at least partially in their exclusive knowledge (as well as the knowledge of others in the operating room). Shauna's operative report lists both Laftavi and Shahbazov as "surgeons"; and, Laftavi admitted he examined Shauna before surgery. Accordingly, the Court concludes that Shauna has made "some evidentiary showing" (Zinter Handling, Inc.) that further discovery, including depositions, may lead to evidence both material and relevant to her malpractice claim.
The Court reaches the same conclusion as to Shauna's informed consent cause of action. Shauna avers she was under the effects of anesthesia and "extremely confused" and "not in the right frame of mind" when she was allegedly "pressured" into donating the kidney to a stranger. Thus, she has made some evidentiary showing that depositions may lead to material and relevant evidence concerning whether she, in fact, gave informed consent. This is particularly so in that Laftavi's affidavit does not satisfy Movants' initial burden on motion, and no written consent form has either been provided or shown to exist. The Court has already found triable issues of fact. For this reason, in concluding that further discovery is needed pursuant to C.P.L.R. 3212 (f), the Court, in its discretion, denies Laftavi's and Shahbazov's motion.
F. Extension of PCSO Dates
The September 3, 2019, PCSO (Doc. 27) established numerous deadlines in this case, including that depositions be held no later than March 2, 2020, and all discovery be completed by April 1, 2020. Pursuant to C.P.L.R. 3214 (b), the February 11, 2020, filing of Laftavi's and Shahbazov's summary judgment motion stayed all discovery until resolution of that motion. In the meantime, the effects of the COVID-19 pandemic first halted and then greatly limited the functioning of law offices and the public at large, beginning in mid-March 2020. Accordingly, the Court, on its own motion and in the exercise of its discretion, extends the deadlines for completion of depositions to November 30, 3020; and for completion of discovery to December 31, 2020.
CONCLUSION
The Court grants, as unopposed, Laftavi's and Shahbazov's summary judgment motion with respect to Plaintiffs' "misdiagnosis" claim, dismissing Plaintiffs' third cause of action in its entirety. For the reasons set forth above, the Court denies Movants' motion seeking dismissal of Shauna's negligence, medical malpractice, and lack of informed consent causes of action. The Court further extends the deadlines to conduct depositions to November 30, 3020; and for completion of discovery to December 31, 2020.
SO ORDERED.