Opinion
Index No. 603697/18 Motion Seq. No. 005
08-18-2020
ROSALIE VEGA, Plaintiffs, v. JOSEPH FEINBERG, M.D., DOMINIC A, FILARDI, M.D., NORTH SHORE UNIVERSITY HOSPITAL, NORTHWELL HEALTH, Defendants.
Unpublished Opinion
Motion Submitted: 7/14/2020
James P. McCormack, Justice
The following papers read on these motions:
Notice of Motion/Supporting Exhibits..........................................X
Affirmation in Opposition/Supporting Exhibits............................X
Reply Affirmation.....................................................X
Defendant, Joseph Feinberg, M.D. (Dr. Feinberg), moves this court for an order, pursuant to CPLR 3212, granting him summary judgment and dismissing the complaint against him. Plaintiff, Rosalie Vegas (Vega) opposes the motion.
Contemporaneously with the signing of this order, the court will sign an order on Motion Seqs 004 and 006, Motion 004 is a discovery motion brought by Vega against the Co-Defendants, Dominic A. Filardi, M.D. North Shore University Hospital and Northwell Health. The court is mostly granting the relief sought in Motion Seq. 004, and recognizes that Vega's inability to access that information could have hampered her ability to oppose the within motion for summary judgment. However, the court finds that the within motion should be mostly denied, rendering the lack of discovery, as related to this motion, moot.
Vega commenced this medical malpractice action by summons and complaint dated March 20, 2018. Issue was joined by service of an answer from North Shore University Hospital (NSUH) dated April 16, 2018. Dominic A. Filardi, M.D. (Dr. Filardi) interposed an answer dated April 25, 2018. Dr. Feinberg served an answer dated April 25, 2018. The case certified ready for trial on July 2, 2019 and a note of issue was filed on September 26, 2019.
On March 16, 2016, Vega was admitted to NSUH where Dr. Feinberg was to perform bilateral breast reconstruction. In 1998, after a diagnosis Of cancer in Vega's left breast, Dr. Feinberg performed breast reconstruction after a mastectomy. In 2016, Vega was diagnosed with cancer in her right breast. It was determined that Vega would have a mastectomy, have the right breast removed, and Dr. Feinberg would replace implant in the left breast. On March 16, 2016, Dr. Filardi performed the mastectomy on the right breast, and Dr. Feinberg performed the breast reconstruction and replacement of the implant on the left breast. It is undisputed that, at all times, Vega was a heavy cigarette smoker. It is further undisputed by all parties that cigarette smoking impedes post-surgical healing.
At 11:37 p.m., more than six hours after the procedure, a note in Vega's chart indicates that a doctor and a physician's assistant went to Vega's "bedside to assess ecchymosis." At 3:33 a.m. on March 17, a resident assessed the eechymosis and circled the spot. Eight hours later, a note indicates "right breast eccyrhotic with hematoma and Dr. Filardi aware and saw patient.-' While ecchymosis is discoloring or bruising of the skin, a hematoma indicates pooling of blood and potential bleeding.
Vega was discharged from the hospital on March 17, with a directive to contact Dr. Feinberg or Dr. Filardi if the ecchymosis or hematoma enlarged. It is undisputed that she did not contact either doctor prior to her scheduled follow-up on March 24 with Dr. Filardi. Further, Vega testified she resumed smoking. During the follow-up, it was noted that the spot had resolved significantly. During a March 29 follow up with Dr. Feinberg, he indicated the "hematoma" had resolved. He noted a small, dark area on the inferior flap. When Vega returned to see Dr. Feinberg on April 5, Dr. Feinberg noted eschar on the right breast. The eschar resulted in partial breast flap necrosis. Dr. Feinberg cleaned up the eschar, but had Vega admitted to Glen Cove Hospital the following day to debride the necrotic tissue. He also wanted to see if the implant had been exposed and to evaluate what was in the pocket. During the procedure on April 6, Dr. Feinberg noted some minor fluid in the pocket with no blood or blood products. After he cleaned the pocket, he inserted a new implant.
Vega returned to see Dr. Feinberg on April 19, on which date the wound was healing appropriately. However, during the April 26 follow-up visit, Dr. Feinberg noted further necrosis with imminent exposure of the implant. Dr. Feinberg then removed the implant and created-a local flap for closure. He would not insert another implant since the chances of success were decreased after the first two failed attempts. Vega returned to see Dr. Feinberg on May 10 and Dr. Feinberg noted a 1.5 cm opening in the incision site. He told Vega to return in a week for vac therapy, but Vegas did not return to see Dr. Feinberg after that. Dr. Feinberg now moves for summary judgment, alleging that there were no deviations from the standard of care, and that there was informed consent.
It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact (Winegrady New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1985]). Once the moving party has made & prima facie showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form which establishes the existence of a material issue of fact (Zuckerman v City of New York, 49 N.Y.2d 557 [1980]; Alvarez v Prospect Hasp., 68 N.Y.2d 320 [1986]).
A defendant seeking summary judgment bears the burden of establishing its prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of its defense, rather than merely by pointing out gaps in the plaintiffs case (Alizio v Feldman, 82 A.D.3d 804 [2d Dept 2011]; Nationwide Prop. Cas. v Nestor, 6 A.D.3d 409, 410 [2d Dept 2004]). Where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers (Lee y Second Ave. Vil Partners, 100 A.D.3d 601 [2d Dept 2012], citing Winegrad v New York Univ. Med. Center, supra, at p. 852). The motion court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents (Giraldo v Twins Ambulettes Serv., Inc. 96 A.D.3d 903 [2d Dept 2012]). Further, “[t]he courts function on a motion for summary judgment is 'to determine whether material factual issues exist, not to resolve such issues (citations omitted)'" (Ruiiz v Griffin, 71 A.D.3d 1112, 1115 [2d Dept 2010], quoting Lopez v Beltre, 59 A.D.3d 683, 685 [2d Dept 2009]).
" 'In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiffs injuries' "(DiGeronimo v Fuchs, 101 A.D.3d 933, 935 [2d Dept 2012], quoting Stukas v Streiter, 83 A.D.3d 18, 23[(2d Dept 2011]; see also, Klein v Argoff, 101 A.D.3d 1090 [2d Dept 2012]). Therefore, "[i]n an action sounding in medical malpractice, a defendant physician moving for summary judgment must establish, prima facie, either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the plaintiffs injuries (emphasis added)" (LeMaire v Kunchman, 102 A.D.3d 659 [2d Dept 2013], citing Faicco v Golub, 91 A.D.3d 817, 818 [2d Dept 2012]; Stukas v Streiter, supra at p. 24; see also, Klein v Argoff supra; DiGeronimo v Fuchs, supra). " 'In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiffs [complaint and] bill of particulars (citations omitted)' "(Bendel v Rajpal, 101 A.D.3d 662, 663 [2d Dept 2012], quoting Wall v Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 1045 [2d Dept 2010]).
"Conclusory statements set forth in an affirmation of a medical expert which do not refute or address the specific allegations of negligence made by the plaintiff in his or her complaint and bill of particulars are insufficient to make a prima facie showing that a defendant physician is entitled to judgment as a matter of law (citations omitted)" (Bendel v Rajpal, supra, at p. 663).
Once a defendant physician has made the requisite showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact with respect to the issues on Which the defendant met the prima facie burden (LeMaire v Kunchman, supra, at p. 659 [citation omitted])." '[G]eneral allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat a defendant's motion for summary judgment (citations omitted)' (Bendel v Rajpal supra, at p, 189, quoting Bezerman v Bailine, 95 A.D.3d 1153, 1154 [2d Dept 2012]).
Furthermore," '[I]n a. [medical] malpractice action, where causation is often a difficult issue, a plaintiff need do no more than offer sufficient evidence from which a reasonable person might conclude that it was more probable than not' that the defendant's. deviation was a substantial factor in causing the injury (citations omitted)" (Goldberg v Horowit, 73 A.D.3d 691, 694 [2d Dept 2010], quoting Johnson v Jamaica Hosp. Med. Ctr., 21 A.D.3d 881 [2d Dept 2005]; see also, Holtony Sprain Brook Manor Nursing Home, 253 A.D.2d 852 [2d Dept 1998] Iv denied, 92 N.Y.2d 818 [1999]). "A plaintiffs evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant's act or omission decreased the plaintiff s chance of a better outcome Or increased the injury, 'as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiffs chance of a better outcome or increased [the] injury (citations omitted)'" (Goldberg v Horowitz, supra, at p. 694, quoting Alicea v Ligouri, 54 A.D.3d 784 [2nd Dept 2008] [internal quotation marks omitted]), In support of his motion, Dr. Feinberg submits, inter alia, the expert affirmation of Dennis Barek, M.D. (Dr. Barek). Dr. Barek is a physician Board Certified in Plastic Surgery.
Having reviewed the pleadings, the bills of particulars and the relevant medical records, Dr. Barek is of the opinion that Dr. Feinberg's care was all within the standard of care, and that he did not depart from good and accepted medical care. According to Dr. Barek, the post-operative issues Vega encountered were either the normal result of the surgery, or were caused by her smoking.
Dr. Barek's opinion becomes troublesome immediately, when he states that Vega did not suffer a hematoma, but instead "had post-surgical ecchymosis, which is not unexpected and which resolved within a week of the surgical procedures performed by the defendants." The problem is> both the hospital records and Dr. Feinberg's own records refer to the spot as a hematoma, Further, the records from Glen Cove Hospital indicate it was a "post-op hematoma". Because Dr. Barek distinguishes between the two, it is unlikely that Dr. Feuieberg would use the terms ecchymosis and hematoma interchangeably. Yet Dr. Barek does not explain or address the hospital records labeling the issue a hematoma, nor Dr. Feinberg himself calling it hematoma. Based upon Dr. Barek's reasoning, if it was hematoma, then it was not a normal result of the surgery.
Next, Dr. Barek points out that during pre-surgical testing, Vega's hemaglobin and hematocrit were high, which he linked to tobacco use, The high levels lead to polycthemia, which is increased production of red blood cells. The body increases red blood cell production to deliver oxygen to the tissues. This scenario ''has serious
Dr. Barek repeatedly returns to the opinion that Vega's smoking was the cause of her many post-operation problems, But this then raises the question of why Dr. Feinberg (and Dr. Fi.lar.di), while knowing Vegans healing would be compromised by the smoking, did not recognize the hematoma as a potentially more serious problem, or why they did not seek to discover the source of it. Further, Dr. Barek does not explain why Vega's smoking wreaked havoc on the healing process on the right-side; but caused no issue on the left side. It is possible there is a-logical, medical explanation for the difference, but Dr. Barek does not address it
For these reasons alone, the court finds that Dr. Feinberg has failed to establish entitlement to summary judgment as matter of law, The affirmation of the expert raises issues that go unaddressed, and actually contradicts Dr. Feinberg's findings that the original spot on the Tight breast was a hematoma.
However, even if the court found that Dr. Feinberg had met his burden, and the burden then shifted to Vega, the motion would still be denied. Vega offers the expert affirmation of Dr. Adam Schaffner, a physician Board Certified in Plastic Surgery, with a specialty in aesthetic plastic surgery. It was Dr. Schaffner that Vega went to see, and who finished her breast reconstruction after she stopped seeing Dr. Feinberg.
According to Dr. Schaffner, the hospital records from Vega's treatment are incomplete because there are no nurses notes and no doctors' progress notes. While this is addressed in a related order in this matter, the court agrees that an incomplete chart is a deviation from the standard of care. Dr. Schaffner also opines that discharging Vega without discovering the source of the hematoma was a deviation from the standard of care. Because he agrees with Dr. Feinberg and Dr. Barek that smoking impedes healing, Dr. Schaffner opines that the presence of the hematoma required a more immediate and urgent response than the "wait and see" approach Dr. Filardi and Dr. Feinberg took. Instead, due to the smoking, Vega's age, and cancer history, Dr. Filardi and Dr. Feinberg should have diagnosed the source of the bleeding, stopped the bleeding and evacuated the collection of blood. Their failure to do so undermined Vega's ability to heal. As further proof, Dr. Schaffner points to wound on the left breast healing without issue. According to Dr. Schaffher, the interruption in healing Caused by smoking is systemic, and should not have only announced itself on the right side. At the very least, this case is a ''battle of the experts" matter and should be presented to a jury. (Mehtvin v. Ravi, 180 A.D.3d 661 [2d Dept 2020]).
Finally, the court finds Dr. Feinberg has failed to establish entitlement to summary judgment on the issue of informed consent. Dr. Barek, in his affirmation, merely notes that informed consent forms were signed, but does not opine as to whether they effectively informed Vega of the risks associated with the procedures. (Schussheim v. Bgfazani, 136 A.D.3d 787 [2d Dept 2016]). As such, the motion to dismiss the cause of action for lack of informed consent will be denied regardless of the sufficiency of the opposition papers.
Accordingly, it is hereby ORDERED, that Dr. Feinberg's motion for summary judgment is DENIED in its entirety.
The foregoing constitutes the Decision and Order of the Court.