Opinion
# 2017-041-064 Claim No. 123923 Motion No. M-89813
09-07-2017
ISHMAEL LOPEZ v. THE STATE OF NEW YORK
ANDREW F. PLASSE & ASSOCIATES, LLP By: Andrew F. Plasse, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General
Synopsis
Defendant's motion for summary judgment dismissing medical malpractice claim is denied where affidavit of claimant's expert raises triable issues of fact.
Case information
| UID: | 2017-041-064 |
| Claimant(s): | ISHMAEL LOPEZ |
| Claimant short name: | LOPEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123923 |
| Motion number(s): | M-89813 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | ANDREW F. PLASSE & ASSOCIATES, LLP By: Andrew F. Plasse, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 7, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for summary judgment dismissing this medical malpractice claim on the ground that the affidavit of its expert medical witness demonstrates that "there was no deviation from the accepted standard of care in the treatment provided to [claimant] and that there was no negligence or malpractice that caused either the deformed cartilage in the outside of the ear or the hearing loss." Claimant opposes the defendant's motion by providing the affidavit of its own expert medical witness.
The claim alleges that claimant, an inmate at the Franklin Correctional Facility (Franklin), sought medical attention on March 5, 2013 for "treatment of his ear, which was swollen, tender, red and cousing [sic] him severe pain." Claimant was allegedly instructed to "apply hot compresses" to his right ear and to return if his condition worsened. Claimant returned to the Franklin medical facility on March 14, 2013 with "increased sufferring [sic], swelling, pain and redness" in his ear. Claimant was allegedly given an "antibiotic prescription while being told to continue to apply the recommended hot compresses" to his ear. Claimant was next treated on March 22, 2013 when an incision was made to his right ear and fluid was drained from the ear. During a subsequent visit to the Franklin medical facility claimant's ear was again drained and claimant was eventually seen by an "Otolaryngologist," by which time claimant's "condition [had] progressed beyond treatment, to the point of causing claimant permanent cauliflower deformity and hearing loss to right ear." The claim alleges that the claimant's injuries "could have been prevented had claimant received the proper medical care without unnecessary delay by the facility medical staff at the Franklin Correctional Facility."
The standard for review of the motion is well-established. "A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
On a motion for summary judgment the court "should draw all reasonable inferences in favor the nonmoving party" (Salisbury v Salisbury, 175 AD2d 462, 463 [3d Dept 1991]). Moreover, "statements of the party opposing a summary judgment motion are deemed to be true" (Hendley v Clark, 147 AD2d 347, 350 [3d Dept 1989]; see Patrolmen's Benevolent Assn.v City of New York, 27 NY2d 410, 415 [1971]).
"The 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" (Gadani v Dormitory Auth. of State of N.Y., 43 AD3d 1218, 1219 [3d Dept 2007]; see McDay v State of New York, 138 AD3d 1359, 1359 [3d Dept 2016]).
Finally, as a general rule, in negligence actions, "the trier of fact is normally entrusted to resolve factual disputes, to ascertain the reasonableness of the offending conduct under the circumstances and to determine whether that conduct was a proximate cause of the alleged injury" (Jones v Egan, 252 AD2d 909, 912 [3d Dept 1998]).
The substantive law is equally clear. It "is well settled that where the State engages in a proprietary function such as providing medical and psychiatric care, it is held to the same duty of care as private individuals and institutions engaged in the same activity" (Rattray v State of New York, 223 AD2d 356, 357 [1st Dept 1996]).
To sustain a cause of action for medical malpractice, a claimant must prove, generally through expert medical opinion testimony, two essential elements: (1) a deviation or departure from accepted practice, and (2) that such departure was a proximate cause of plaintiff's injury (Carter v Tana, 68 AD3d 1577, 1579 [3d Dept 2009]).
As set forth above, the proponent of a motion for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant has done so by submitting the certified medical records of claimant and the affidavit of Gerald Cahill, MD, who is board certified in family medicine who was engaged in the private practice of family medicine for 27 years and who has also been employed as a physician by defendant for approximately 23 years.
Dr. Cahill opines that claimant's ear deformity "cannot be ascribed to any deviation in the standard of care that [claimant] received" and that he "found no evidence of any deviation in the appropriate standard of care that [claimant] received, and no evidence that the care he received in any fashion contributed to him developing a hearing loss."
Based upon Dr. Cahill's affidavit, defendant has demonstrated prima facie entitlement to summary judgment, thereby shifting the burden to claimant to raise a question of fact by sufficient evidentiary proof (see Kean v Community Gen. Hosp., 195 AD2d 910, 912 [3d Dept 1993, lv denied 83 NY2d 752 [1994]).
"It is axiomatic that once a defendant in a medical malpractice action satisfies his or her burden of demonstrating entitlement to summary judgment, [claimant] must adequately rebut defendant's prima facie showing by establishing a departure from accepted medical practice, as well as a nexus between the alleged malpractice and [claimant's] injury" (Rossi v Arnot Ogden Medical Center, 268 AD2d 916, 917 [3d Dept 2000], lv denied 95 NY2d 751 [2000]).
In response, claimant offers the affidavit of his own expert medical witness, David I. Astrachan, MD. Dr. Astrachan is a Diplomate of the American Board of Otolaryngology and a Surgery Fellow with the American Academy of Otolaryngology. He is affiliated with the Department of Surgery, Otolaryngology Section, at the Hospital of San Raphael and with the Department of Surgery, Otolaryngology Section, at the Yale New Haven Hospital. Dr. Astrachan is a Clinical Instructor for the Department of Otolaryngology, Yale University School of Medicine, Yale New Haven Hospital.
Dr. Astrachan states that he reviewed claimant's medical records and that he is familiar with the standard of care for treatment of an ear in the State of New York. Dr. Astrachan recounts claimant's symptoms and the course of treatment by defendant, noting that claimant "should have been seen again and followed up one or two days" after being placed on medications on March 14, 2013 "to make sure that the treatment was having the desired effect." Dr. Astrachan states that "the gap in time between the prescription of Rocephin and Augmentin on March 14, 2013 until March 22, 2013 led to significant worsening of his condition and the irreversible damage." He then goes on to describe how and why claimant's deformed ear developed and became an "irreversible and permanent" condition.
Dr. Astrachan further states, with a reasonable degree of medical certainty, that the claimant's ear deformity and hearing loss is permanent and was "caused by the delay in properly treating [claimant's] ear from March 14, 2013 to March 22, 2013. The delay in treatment deviated from the Standard of Care in New York state for treating this type of condition."
Defendant, in its reply, argues that Dr. Astrachan does not specifically describe the appropriate standard of care from which defendant allegedly deviated, that claimant could have chosen to return to the medical facility sooner than March 22, 2013 and that Dr. Astrachan's opinion is conclusory and offers no alternative treatment plan.
The Court disagrees with each of these contentions. First, the Court notes that defendant's own expert does not specifically describe the appropriate standard of care nor does he state his "opinion" to a reasonable degree of medical certainty. Further, it is clear from Dr. Astrachan's affidavit that, in the Doctor's opinion, the appropriate standard of care required a 1-2 day follow-up appointment for claimant after the examination findings and the prescription of antibiotics on March 14, 2013.
Next, the Court is unpersuaded that the claimant was required to determine on his own that he should return to the defendant's medical facility at some point earlier than March 22, 2013 in order for defendant to check on his medical progress.
Finally, the Court finds that the affidavit of Dr. Astrachan is sufficiently specific in identifying the defendant's delay in treatment as the cause of claimant's hearing loss and ear deformity. The Court is unpersuaded that Dr. Astrachan's opinion should be disregarded because he fails to detail a specific alternative course of treatment which presumably should have been followed if the defendant had done a follow-up examination of claimant within 1-2 days of March 14, 2013, when the antibiotics were prescribed.
Claimant has raised a question of fact whether defendant deviated from the appropriate standard of care in treating claimant's right ear and whether such alleged deviation caused the injuries and damages sustained by claimant.
The defendant's motion for summary judgment dismissing the claim is denied.
September 7, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, filed January 24, 2017; 2. Affidavit of Joan Matalavage, sworn to January 20, 2017, and attached exhibits, including the affidavit of Gerald Cahill, MD, sworn to January 11, 2017; 3. Affirmation of Andrew F. Plasse, dated June 26, 2017, and attached exhibits, including the affidavit of David I. Astrachan, MD, sworn to June 27, 2017; 4. Reply Affidavit of Joan Matalavage, sworn to July 5, 2017.