Opinion
Index No. 151373/2019 Motion Sequence Nos. 002 003
06-06-2023
GUISEPPE SOTTOSANTI, Plaintiff v. ST. FRANCIS HOSPITAL and CATHOLIC HEALTH SERVICES OF LONG ISLAND (CHSLI). Defendants.
Unpublished Opinion
DECISION AND ORDER
CATHERINE M. DIDOMENICO JUDGE
Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion Sequence Numbers 002 & 003
Numbered
Notice of Motion for Summary Judgment by Defendants (002),
1
Notice of Cross Motion for Summary Judgment by Plaintiff (003),
2
Reply to 002 and Opposition to 003 by Defendants
3
Reply Affirmation by Plaintiff
4
Expert Affirmation by Sudipta Roychowdhury, M.D.
5
Transcript of Oral Argument from September 7, 2022
6
Upon the foregoing cited papers, the Decision and Order is as follows:
Procedural History / Present Motions
The above captioned negligence action was commenced by the filing of a Summons and Complaint on June 6, 2019. In his Verified Complaint, Plaintiff alleges three counts of negligence against Defendants. On or about August 7, 2019, Defendants demanded a Bill of Particulars to expand upon the Verified Complaint. Plaintiff filed a Bill of Particulars on or about October 28, 2019. Both Plaintiffs Verified Complaint and Bill of Particulars are framed in such a way as to not allege medical malpractice on the part of any physician, nurse, or hospital. However, at least the third cause of action, which alleges that the Defendants "departed from proper and accepted standards of hospital practice" sounds akin to a medical malpractice claim. See e.g. Costa v. Colombia Presbyt. Med. Ctr., 105 A.D.3d 525 (1st Dept. 2013). Throughout this litigation Defendants have argued that the causes of action alleged against them are indeed medical malpractice causes of action disguised as common-law negligence and should be treated as such. At the conclusion of discovery, the present case was certified for trial, and a Note of Issue was filed by Plaintiff on April 26, 2022. The present cross motions for summary judgment followed.
Defendants move by Notice of Motion (Seq. No. 002) for an order granting them summary judgment dismissing the Plaintiffs Complaint on two grounds. First, they argue that the Plaintiffs allegations on the issue of liability are incredible as a matter of law and must be disregarded by this Court. Defendants further argue, based upon the expert report of a Radiologist, that the injury claimed by Plaintiff was not caused by the actions of the Defendants. On or about August 26, 2022, Plaintiff filed a Notice of Cross Motion (Seq. No. 003) seeking an order granting him partial summary judgment on the issue of liability and setting the matter down for a trial on the issue of damages only. Both motions were argued on September 7, 2022, and were submitted for decision upon receipt of the transcript of oral argument.
Relevant Facts
In or around 2017 Plaintiff began treating with a neurosurgeon Dr. Ricky Madhok and his partner Dr. David Chen for complaints of back pain. Both Dr. Madhok and Dr. Chen are non-parties to the present action. Ultimately Plaintiffs doctors advised him that surgery would be required to relieve his back pain. On March 8, 2018, Plaintiff was admitted to the Defendants' Hospital as a private patient of Dr. Chen. On that date Dr. Madhok and Dr. Chen performed a posterior lumbar laminectomy at L2-3 which included the insertion of a L2 pedicle screw. Plaintiff has offered Dr. Madhok's post operative report which indicates that the surgery was performed without complication. Plaintiff alleges that he was recovering from his surgery, without complaint or complication, until March 16, 2018 when a nurse employed by the Defendants identified only as "Ingrid" violently turned him in his bed, causing him a feel sudden pain, and a "pop" in his spine. Plaintiff alleges that when the nurse employed by Defendants moved him, she displaced the L2 pedicle screw and caused him serious physical injuries.
On March 20, 2018, Plaintiff underwent revision surgery to remove and replace the pedicle screw that was installed during his initial surgery. Pre-operative diagnostic scans revealed that the screw was "laterally displaced." Plaintiff claims that Defendants are liable for the displaced screw due to the alleged actions of "Nurse Ingrid" who violently moved him, causing the screw to move. Defendants, in opposition, claim that (1) there is no contemporaneous medical record corroborating Plaintiffs claim that an incident occurred on or about March 16, 2018, (2) that no nurse employed by the hospital, including R.N. Ingrid Munson, has corroborated that such an event took place, (3) that Nurse Munson would have been physically unable to perform the alleged negligent conduct of lifting Plaintiff off of his bed six inches and twisting him, and (4) that even if the incident occurred the way Plaintiff claims it did, it could not have caused the screw to displace, as it was installed in a displaced position during the original surgery on March 8th and did not move until it was removed on March 20th.
Applicable Law
The proponent of a summary judgment motion has the initial burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case. See Otty Cab Corp. v. Nazir, 72 N.Y.S.3d 517 (2d Dept. 2017). A movant's burden can be satisfied by the submission of sworn affidavits or deposition testimony in proper evidentiary form. See Charlie Fox, Inc. v. Diallo, 48 N.Y.S.3d 264 (2d Dept. 2016). Once a prima facie showing of entitlement to summary judgment has been established, the burden shifts to the non-moving party to raise a material issue of fact. See Ubillus-Tambini v. Ischakov, 36 N.Y.S.3d 410 (2d Dept. 2016). In many cases the testimony of a layperson is sufficient to successfully support or oppose summary judgment motions, however, when knowledge is beyond the ken of a layperson, expert testimony may be needed. See DeLong v. County of Erie, 60 N.Y.2d 296 (1983); see also Lippo v. Cruz, 988 N.Y.S.2d 523 (Sup. Ct. Rich. Cty. 2014). This is particularly true in medical malpractice cases, where expert testimony is required to support or oppose a motion for summary judgment. See Wright v. Morning Start Ambulette Servs., Inc., 170 A.D.3d 1249 (2d Dept. 2019).
Decision
The first question before this Court is whether this case is what it appears to be, a common law negligence cause of action, or a disguised medical malpractice cause of action. The distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two. See Scott v. Uljanov, 74 N.Y.2d 673 (1989). Conduct is deemed to be malpractice, rather than common negligence, when it "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician." Bleiler v. Bodnar, 65 N.Y.2d 65 (1985). While a hospital in a general sense is always furnishing medical care to its patients, not every act of negligence towards a patient constitutes medical malpractice. See Weiner v. Lenox Hill Hosp. 88 N.Y.2d 784 (1996). The determining factor is typically whether the acts or omissions complained of involve a matter of medical science or art requiring special skill not ordinarily possessed by laypersons. See Papa v. Brunswick General Hospital, 132 A.D.2d 601 (2d Dept. 1987). Thus, an action sounds in ordinary negligence when jurors can utilize their common everyday experiences to determine the allegations of a lack of due care. See McNally v. Montefiore Nyack Hosp., 206 A.D.3d 901 (2d Dept. 2022).
A review of the relevant caselaw reveals that improperly ambulating a patient has been found to constitute either common law negligence, or malpractice, or both, depending on the circumstances. See e.g. Stanley v. Lebetkin, 123 A.D.2d 854 (2d Dept. 1986) [fall from an examination table found to be medical malpractice because it related to a medical assessment of needing supervision]; Cf. Reardon v. Presbyterian Hosp. 292 A.D.2d 235 (1st Dept. 2002) [fall of examination table found to be common law negligence as it related to a determination of whether a second employee was needed to assist in ambulation]. In some cases, the same allegations can constitute both common law negligence and medical malpractice. See D'Elia v. Menorah Home &Hosp, for the Aged &Infirm, 51 A.D.3d 848 (2d Dept. 2008). As there are cases where improperly moving a patient has been determined to constitute common law negligence, the Court will consider Plaintiffs causes of action has he chose to frame them. See Halas v. Parkway Hosp. Inc. 158 A.D.2d 516 (2d Dept. 1990). Plaintiffs claims can theoretically sound in common law negligence because he asserts that Nurse Munson was rushing and chose to move him without the assistance of a second person despite his weight. This allegation, as framed by Plaintiff, has more to do with Nurse Munson's choices, than her medical skill and training. See Reardon, Supra.
Defendants move for summary judgment dismissing Plaintiffs negligence causes of action on two grounds, one relating to credibility and the other causation. Defendants first argue that this Court must disregard Plaintiffs allegations as to liability as patently incredible and unbelievable as a matter of law. In support of this argument Defendants claim that it defies the laws of physics and logic for Nurse Munson, who was described by Plaintiff as being 5 feet 4 inches tall and having a "medium frame" to single handedly move Plaintiff who is 5 feet 7 inches tall and 215 pounds. This argument is unpersuasive. This Court cannot say, as a matter of law, whether any particular nurse is physically able or unable to lift any particular patient based solely upon an approximation of her size. At best, this is an issue of credibility and determinations of credibility are the purview of the jury. See Cummings v. Brooklyn Hosp. Ctr., 147 A.D.3d 902 (2d Dept. 2017); see also Imamkhodjaev v. Kartvelishvili, 44 A.D.3d 619 (2d Dept. 2007). When deciding a motion for summary judgment the function of the Court is not to determine issues of fact or credibility, but merely to determine if such issues exist. See Dykeman v. Heht, 52 A.D.3d 767 (2d Dept. 2008).
Defendants' second argument relates to the issue of causation. Defendants argue that even if the Court were to accept Plaintiffs allegations regarding how the March 16th incident happened, the alleged incident did not cause the claimed injury. Defendants assert that the displaced positioning of the screw at issue pre-existed Nurse Munson's alleged involvement and was instead caused by the March 8th surgery. In support of this position, Defendants offer the expert affirmation of Sudipta Roychowdhury, M.D. a Radiologist. In his affirmation, Dr. Roychowdhury indicates that he reviewed the diagnostic films related to the treatment at issue including intraoperative x-rays of Plaintiff s spine taken on March 8, 2018. Dr. Roychowdhury opines that the L2 pedicle screw that Plaintiff claims was displaced by Nurse Munson on March 16th, was actually malpositioned by his surgeons on March 8th. Dr. Roychowdhury states, with a reasonable degree of medical certainty, that the Plaintiffs March 8th x-ray shows a "laterally oriented, malpositioned L2 pedicle screw that caused a lateral wall violation." Dr. Roychowdhury also examined a second post-operative x-ray taken in connection with the installation of an IVC filter on March 13, 2018. In his expert opinion, this film also shows the malpositioned pedicle screw in the "exact same anatomical location that is depicted in the March 8th x-ray." Finally, on March 19, 2018 (after the incident at issue) Plaintiff underwent a CT scan. Upon review, Dr. Roychowdhury opines that the malpositioned screw was in the exact same position as it was during the March 8th surgery and had not become "dislodged, displaced, or loose." Based upon these observations, Dr. Roychowdhury states that it is his opinion, with a reasonable degree of medical certainty, that the alleged incident that forms the basis of Plaintiff s Complaint did not, and could not, have caused the displacement of the screw.
Based upon the expert opinion of Dr. Roychowdhury, this Court finds that Defendants have met their initial burden of establishing an entitlement to summary judgment as a matter of law. Causation is a necessary element of any negligence cause of action. See Russell v. River Manor Corp., 2023 NY Slip Op 20547 (2d Dept. 2023); see also Stoller v. Purchase Community, Inc., 161 A.D.3d 807 (2d Dept. 2018); Barnes v. Lee, 158 A.D.2d 414 (1st Dept. 1990). Here, Plaintiff alleges that the screw at issue was displaced by the actions of Nurse Munson, and that her actions caused him pain and suffering and forced him to undergo revision surgery to reposition the screw. However, Defendants have successfully established, through compelling admissible evidence, that the complained of injury pre-existed the March 16thincident. See Rodriguez v. Morel, 201 A.D.3d 606 (1st Dept. 2022); see also Inzalaco v. Consalvo, 115 A.D.3d 807 (2d Dept. 2014); Johnson v. New York & Presbyt. Hosp., 195 A.D.3d 414 (1st Dept. 2021). Defendants have further established that the alleged incident did not move or dislodge the screw in any way, thus addressing any claim of exacerbation or aggravation. See Jones v. MTA Bus Co., 123 A.D.3d 614 (1st Dept. 2014). This shifts the burden to Plaintiff, to raise a material issue of fact sufficient to warrant a trial.
Plaintiff fails to raise a triable issue of fact in opposition to Defendants' motion. Despite the expert testimony offered by Dr. Roychowdhury, Plaintiff insists that it was Nurse Munson that caused the screw to become dislodged. Plaintiffs self-serving, conclusory statement, that Nurse Munson caused the screw to move is insufficient to raise a triable issue of fact sufficient to defeat summary judgment. See Nisevich v. Shorefront Ctr. for Rehabilitation & Nursing Care, 2023 NY Slip Op 02671 (2d Dept. 2023); see also Smith v. City of New York, 210 A.D.3d 53 (2d Dept. 2022); Brea v. Lofton, 256 A.D.2d 294 (2d Dept 1998); see also Terwilliger v. Dawes, 204 A.D.2d 433 (2d Dept. 1994). Considering the Defendants' expert report which indicates that the screw was malpositioned during the first surgery, Plaintiff was required to offer some evidence sufficient to raise a triable issue of fact other than his own conclusory statements as a layperson. Plaintiffs opposition failed to adequately address the specific assertions of the Defendants' expert. See Piazza v. NYU Hosps. Ctr., 2018 A.D.3d 525 (2d Dept. 2022); see also Negron v. Shou, 179 A.D.3d 516 (1st Dept. 2020). While this Court has not construed Plaintiffs causes of action as sounding in medical malpractice, whether, when, and how a screw became malpositioned is beyond the ken of a layperson and therefore expert testimony is warranted, especially in response to Dr. Roychowdhury's medical opinion. See Wadsworth Condos LLC v. Dollinger Gonski &Grossman, 114 A.D.3d 487 (1st Dept. 2014); see also Yebo v. Cuadra, 98 A.D.3d 504 (2d Dept. 2012); Rodriquez v. 3rd Ave. Tr. Inc., 201 A.D.3d 417 (1st Dept. 2022). The mere fact that Plaintiffs subjective belief as to causation was repeated in certain hospital records does not warrant a different result, as those records each indicate that they are simply repeating the history offered to them by the Plaintiff. No medical record submitted by Plaintiff addresses the issue of causation in a way sufficient to rebut the expert report offered by the Defendants and Plaintiff has offered no reason as to why he did not obtain an expert report from his surgeons or any other medical professional.
For the detailed reasons set forth above, Defendants' motion seeking summary judgment is granted and Plaintiffs case is hereby dismissed with prejudice. As Plaintiff s case has been dismissed there is no need to specifically address his cross motion for summary judgment on liability, which is denied as moot. This constitutes the Decision and Order ol the Court on all issues related to motion sequence numbers 002 and 003. Any issue raised in either motion that was not specifically addressed herein is hereby denied.