Opinion
Index 032728/2018
06-25-2020
MICHAEL CHARNISKY, Plaintiffs, v. RICHARD L. POPOWITZ, M.D., ADVANCED ORTHOPEDICS AND SPORTS MEDICINE, PLLC, NORTHEAST ORTHOPEDICS AND SPORTS MEDICINE, PLLC and NYACK HOSPITAL, Defendants. Motion Seq. Nos. 1, 2
Unpublished Opinion
Motion Date: 3/25/2020
DECISION AND ORDER
HON. PAUL I. MARX, J.S.C.
The following papers were read on: (1) the motion of Defendants Richard L. Popowitz, M.D., Advanced Orthopedics and Sports Medicine, PLLC and Northeast Orthopedics and Sports Medicine, PLLC ("Northeast Orthopedics") for summary judgment and (2) the motion of Defendant Nyack Hospital (the "Hospital") for summary judgment:
Motion by Defendants Dr. Richard L. Popowitz and Northeast Orthopedics and supporting papers.....................................................................NYSCEF Docs ## 37-52
Motion by Defendant Nyack Hospital and supporting papers..................Docs ## 53-75
Plaintiffs Opposition to Defendants' Motions..............................................Docs## 76-79
Affirmation of Evan J. Lyman, Esq. in Reply on behalf of Dr. Richard L. Popowitz and Northeast Orthopedics.....................................................................Doc # 80
Affirmation of John D. Paterniti, Esq. in Reply on behalf of Nyack Hospital......Doc #81
Upon the foregoing papers, it is ORDERED that the motions are disposed as follows:
BACKGROUND
On March 1, 2017, Plaintiff Michael Charnisky was seen in the Nyack Hospital Emergency Room complaining of an injured back and hip after falling down the stairs at a work site. Physician's Assistant Anthony Cestaro treated Plaintiff in the Emergency Room. He recommended that Plaintiff consult with Defendant Dr. Richard L. Popowitz, who had privileges at Nyack Hospital, for further evaluation.
On March 2, 2017, Plaintiff was seen by Dr. Popowitz in his private office at Northeast Orthopedics, complaining of pain in his right hip and back from his fall on the previous day. On March 4, 2017, Plaintiff had an MRI performed of his right hip, which showed avascular necrosis. On March 7, 2017, Dr. Popowitz discussed the results of the MRI with Plaintiff and recommended that he have total hip replacement surgery of his right hip. Plaintiff, who had previously replaced his left hip, agreed to the surgery. The procedure was initially scheduled to take place at Good Samaritan Hospital on March 15, 2017, but was changed to Nyack Hospital because of an insurance coverage issue.
On March 15, 2017, Dr. Popowitz, assisted by Physician's Assistant Allison Rifkin, performed total hip replacement surgery of Plaintiffs right hip at Nyack Hospital and later provided follow up treatment. Dr. Popowitz's Operating Report stated that there were no complications, manipulation of the right hip was done with each stem before the appropriate size was found and the procedure completed, good stability in the hip was noted and an abduction pillow was applied.
Physician's Assistant Allison Rifkin was an employee of Northeast Orthopedics during 2017. She is not named as a party.
Approximately five and a half hours after the surgery, Plaintiff was evaluated by Physical Therapist Louis Guerriero. Plaintiff was able to walk twenty-five feet slowly. He was reported to have high steppage with his right leg to compensate for right ankle dorsiflexion weakness. PA Rifkin examined Plaintiff on March 16, 2017, the morning after surgery, and reported finding that Plaintiff was "[a]ble to actively plantar and dorsiflex". Plaintiff was also evaluated by PT Eliana
Horowitz and educated on performing bilateral lower extremity exercises seated in "hip chair while maintaining posterior hip precautions". PT Horowitz noted:
Maintains R ankle in slight PF
[Plantar Flexion] for initial contact.
R Ankle D[orsiflexion] 2-/5, R big toe extension
2+/5. Reports hx of limited R ankle DF compared to
L ankle but feels It is worse now w/ swelling/stiffness. Hx back Injury. RN aware. R ankle in neutral w/ ace wraps
The nursing notes during Plaintiffs hospital stay state that he used an abduction pillow.
On March 17, 2017, around 1:30 p.m., Plaintiff was discharged from Nyack Hospital to home by Dr. Popowitz, who authored the discharge summary. Dr. Popowitz prescribed plaintiff Percocet for pain management and recommended a follow up visit in his private office in one week. Dr. Popowitz reviewed total hip precautions with Plaintiff and his wife.
Plaintiff went home wearing compression socks provided by Nyack Hospital that were too small. The following day, Plaintiff's wife returned to the hospital and exchanged the socks for a larger pair.
Plaintiff received follow up care from PA Rifkin at the offices of Northeast Orthopedics on March 22, 2017 and March 28, 2017. Plaintiff received follow up care from Dr. Popowitz at Northeast Orthopedics on April 17, 2017. At that visit, Plaintiff complained of right foot pain. Dr. Popowitz noted that Plaintiff had hypersensitivity and some weakness consistent with the L5 nerve root and referred him to a neurologist for evaluation of his nerve pain and for an EMG. On April 25, 2017, Plaintiff had an EMG at Highland Medical, P.C., which suggested a right sciatic neuropathy.
On May 14, 2018, Plaintiff commenced this action against Defendants Dr. Popowitz, Northeast Orthopedics and Nyack Hospital. Plaintiff alleged that he was not fully informed of the risks of the surgery. Plaintiff alleged that he suffered nerve damage and developed right foot drop as a direct result of Defendants' departure from the standard of care during the surgery and subsequent care and treatment. Plaintiff alleged that Dr. Popowitz deviated from good and accepted medical practice by failing to follow appropriate practices or to render appropriate treatment to address his complaints immediately after the surgery. Plaintiff alleged that Dr. Popowitz failed to properly examine and treat his foot drop condition, which resulted in permanent injury and special damages. Plaintiff alleged that Northeast Orthopedics and Nyack Hospital were negligent in hiring and supervising Dr. Popowitz.
DISCUSSION
A defendant moving for summary judgment in a medical malpractice action must demonstrate that there was no departure from good and accepted medical practice or that the defendant's actions were not the proximate cause of the plaintiffs injury. Dolan v Halpern, 73 A.D.3d 1117, 1118-19 [2nd Dept 2010]. "In opposition, a plaintiff then must submit material or evidentiary facts to rebut the defendant's prima facie showing that he or she was not negligent in treating the plaintiff." Id. (citing Langan v St. Vincent's Hosp. of N.Y., 64 A.D.3d 632, 632-633 [2009] [internal quotation marks and citations omitted]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Or., 64 N.Y.2d 851, 853 [1985]; Feinberg v Feit, 23 A.D.3d 517, 518-519 [2005]).
Defendants Dr. Popowitz and Northeast Orthopedics Motion for Summary Judgment
Intra-operative Injury
Defendants Dr. Popowitz and Northeast Orthopedics move for summary judgment based upon the opinions of their expert orthopedic surgeon, Peter R. Langan, M.D., and their expert neurologist, Jesse Weinberger, M.D., that Defendants met the standard of care.
Dr. Langan stated that PA Rifkin's finding following post-surgery examination of Plaintiff on March 16, 2017 at 6:15 a.m., that Plaintiff was "[a]ble to actively plantar and dorsiflex" proved "on its face" that "neither the sciatic nor peroneal nerves were insulted during me [surgery]." Affidavit at ¶15. Dr. Langan further noted that Dr. Popowitz similarly found on March 17, 2017, that Plaintiff was able to dorsiflex and plantarflex his right foot and ankle. Dr. Langan determined that Dr. Popowitz's findings that Plaintiff was not in pain and was able to bring his ankle and big toe to neutral, elevate his lesser toes and evert his foot, had walked well around the floor, was able to bring his foot to neutral and fully actively dorsiflex the lesser toes showed that no intra-operative injury occurred.
Dr. Langan opined within a reasonable degree of medical certainty that the THR surgery was entirely consistent with the standard of care and that there was "absolutely no evidence that the sciatic and/or peroneal nerves were insulted in any way in the perioperative course: neurotomy, i.e. a cutting or transection in whole or part of the nerve, did not occur; there was no damage to the axon fibers of the nerve during the surgery; and finally, there was no neurapraxia, that is, stretching or compressing of the nerve during the surgery." Affidavit at ¶ 43, Dr. Langan stated that there was "no objective, anatomical or radiographic evidence to support" Plaintiffs claim in his Bill of Particulars that his sciatic and peroneal nerves were damaged during surgery. He opined that Dr. Popowitz and PA Rifkin properly utilized retractors to protect the sciatic nerve from being transected or stressed and ensured that the sciatic and peroneal nerves were not in the surgical field. Dr. Langan asserted that "there are higher risks of post-operative complications in morbidly obese patients such as the plaintiff but there was no evidence of such complications in this case. Dr. Langan further opined that "even if, for the sake of argument, the plaintiff sustained some sort of insult to the sciatic and/or peroneal nerve during the surgery, this would be the occurrence of a known and accepted risk/complication of a THR - which is elevated in a morbidly obese patient - and not as a result of a departure from the standard of care." Affidavit at ¶ 45.
Dr. Langan reviewed the post-operative care provided to Plaintiff by Defendants and opined that it met the standard of care. Dr. Langan opined that an MRI was not indicated at Plaintiffs March 22, 2017 visit to Northeast and would have been too soon after surgery to have diagnostic value. Dr. Langan noted that by April 1, 2017, Plaintiff was walking without a cane and was driving. Dr. Langan concluded that Plaintiffs clinical picture was "entirely inconsistent with an intra-operative sciatic or pereneal nerve insult" and that it was normal that Plaintiff was still in a bit of pain on April 7, 2017. Affidavit at ¶ 51. Dr. Langan opined that Dr. Popowitz delivered informed consent to Plaintiff in a manner that was consistent with the standard of care.
Dr. Weinberger opined within a reasonable degree of medical certainty that Plaintiffs alleged damages did not result from an intra-operative complication as alleged in the Bill of Particulars. Dr. Weinberger opined that there was no evidence that the nerve was damaged in any of the three possible ways such damage could have occurred, "namely, neurotomy (a cutting or transaction in whole or part of the nerve); damage to the axon fibers of the nerve (an axon, or nerve fiber, is a long slender projection of a nerve cell, or neuron, that conducts electrical impulses away from the neuron's cell body) and/or neurapraxia (stretching or compressing of the nerve during the surgery)," Affidavit at | 7. Dr. Weinberger stated that there was no neurotomy or cutting of any nerve, otherwise Plaintiff would not have been able to dorsiflex to any extent after surgery. Dr. Weinberger noted that the MRI that was completed on April 27, 2017 ruled out axon fiber damage during the surgery. Dr. Weinberger opined that there was no evidence of neurapraxia, stretching or compressing of the nerve, during the surgery. The stated basis for that opinion is that the sciatic and peroneal nerves were not in the surgical field, retractors were strategically placed and Plaintiff was purposefully repositioned during surgery to avoid compression/stretching/pressure upon the sciatic and peroneal nerves. Dr. Weinberger opined that the post-operative observation that Plaintiff was able to walk around the room with the physical therapist, move all toes and actively plantar and dorsiflex disproved nerve damage having occurred during surgery.
Notably, Dr. Weinberger opined that a neurological consult would have been premature the day of the plaintiffs discharge from the hospital, given the post-operative imaging and post-operatives examinations from P.A. Rifkin and Dr. Popowitz. Further, Dr. Weinberger asserted that "any additional electro-diagnostic testing would have been contraindicated given the high likelihood of false positives in the immediate post-operative phase." Affidavit at |13. Dr, Weinberger opined that the findings on Dr. Popowitz's follow up examinations and Plaintiffs activities and progress reports in the three weeks following surgery were "wholly inconsistent with intra-operative damage to the nerves as alleged in the Bill of Particulars." Id. at ¶ 14. Dr. Weinberger opined that when Plaintiff presented to Dr. Popowitz on April 17, 2017, complaining of hypersensitivity and some weakness, Dr. Popowitz appropriately ordered an MRI and referred him to a neurologist. Dr. Weinberger opined that Plaintiffs post-operative course was entirely inconsistent with the type of intra-operative complication alleged in this case and it would be purely speculative to connect the symptoms listed in the Bill of Particulars to the surgery performed by Dr. Popowitz.
Plaintiff argues that the affidavits of his experts, Andrew J. Collier, Jr., M.D. and Michael Andrew Meyer, M.D., demonstrate the existence of triable issues of fact. Specifically, Plaintiff contends that Drs. Collier and Meyer opined that Dr. Popowitz failed to properly perform the THR surgery without compressing Plaintiffs nerve; failed to recognize the significance of Plaintiff s complaints of pain after surgery; failed to perform an immediate and thorough neuromuscular assessment; failed to order a stat MRI and postoperative MRI; failed to refer Plaintiff for a neurological consultation immediately after surgery; caused or allowed damage to occur to his sciatic and peroneal nerves; negligently increased Plaintiffs risk of developing neuropathic pain; failed to inform Plaintiff of the risks and benefits of the surgery; and were otherwise negligent in their care and treatment of Plaintiff.
Dr. Collier opined that Dr. Popowitz failed to properly supervise prepping and draping of Plaintiff and did not order proper positioning during and after surgery in order to prevent or lessen compression on the peroneal nerve. Affirmation of Dr. Collier at ¶ 83. Dr. Collier opined that, as a result, Dr. Popowitz caused, permitted and allowed damage to occur to Plaintiffs sciatic and peroneal nerves. Dr. Collier opined that Dr. Popowitz "failed to recognize the significance of [Plaintiffs] complaints of numbness and pain following surgery and failed to perform an immediate and thorough neuromuscular assessment and an expeditious workup to properly ascertain its source." Id. Dr. Collier stated that Dr. Popowitz failed to heed his own observation that Plaintiff was not able to dorsiflex his right foot after surgery and to diagnose drop foot. Dr. Collier further opined that "Dr. Popowitz's failure to order a stat MRI to rule out a surgical etiology was negligent and that his failure to perform further evaluations, including post-operative MRIs, was negligent." Id. at ¶ 84. Dr. Collier further opined that "Dr. Popowitz's failure to perform an immediate and thorough neuromuscular assessment and refer Plaintiff for a neurological consult after the surgery increased his risk of developing neuropathic pain, from which he still suffers." Id.
Dr. Collier disagreed with Defendants' experts, Drs. Langan and Weinberger, as to the significance of Plaintiff being able to walk without a cane, drive, attend physical therapy, fish, and anticipate playing golf. Dr. Collier opined that Plaintiff was not prevented by a 3/5 dorsiflexion from engaging in any of these activities. Dr. Collier pointedly disagreed with Dr. Langan's assessment that "[d]riving requires effortless dorsiflexion to release the pedals" (Langan, 123, ftn 2). Instead, Dr. Collier opined that "[d]riving does not require dorsiflexion at all since the driver mainly relies on his calf muscles to push on the gas and break [sic] (which requires plantar flexion) using the calf muscles and releasing of the gas and brake pedals can be accomplished by flexing the knee and lifting the foot off the pedals (which relies on calf muscles or flexing the knee to pull the foot off the pedal)." Collier Affidavit at ¶ 81. Dr. Collier opined that Plaintiff had developed a steppage gait and permanent neuropathy as a result of Dr. Popowitz's failure to appreciate the significance of Plaintiff s incomplete dorsiflexion. Dr. Collier concluded that Defendants were negligent in failing to diagnose Plaintiffs drop foot and neuropathy and in failing to timely refer him to a neurologist.
Dr. Meyer, Plaintiffs neurologist expert, opined that Plaintiffs physical therapy records from Nyack Hospital show that Plaintiffs "injury was visible as early as the day of the surgery." Meyer Affidavit at ¶ 22. Dr. Meyer refers to Plaintiffs physical therapy records from March 15, 2017, which reported Plaintiff as having a slow gait with" 'short steps[, ] some high steppage RLE [right lower extremity] to compensate for ankle DF [Dorsiflexion] weakness, decreased stance time/wb RLE so ambfulates] with steppage] to gait LLE. A little wobbly at times but no lob noted.'" Id. (quoting Nyack physical therapy records). Dr. Meyer explained that "[a] high steppage is a form of gait abnormality characterized by foot drop due to loss of dorsiflexion." Id. at | 23. Dr. Meyer asserts that the records show unequivocally that Plaintiff "had loss of dorsiflexion as early as postop day one." Id.
Dr. Meyer points to PT Eliana R. Horowitz's notes from the day after surgery documenting her findings that Plaintiffs right ankle was at -2/5 and his big toe extension was at +2/5. Dr. Meyer opined that these scores were "incredibly low" and suggestive of very weak dorsiflexion. Meyer Affidavit at ¶ 24. Dr. Meyer stated that he "strongly disagree[d]" with Dr. Weinberger's opinion that the findings that Plaintiff could only "actively dorsiflex the lesser toes'" and had "weakness specifically in the big toe and bringing his ankle straight up to neutral" were '"inconsistent with intra-operative damage to the nerves.'" Id. at ¶ 25 (quoting Dr. Weinberger's Affidavit at ¶ 12). Dr. Meyer opined that the condition of Plaintiffs right foot after surgery did not qualify as dorsiflexion. Dr. Meyer opined that "from the beginning, [Dr. Popowitz] should have performed an expeditious workup and called for a neurology consult based on [Plaintiffs] clear symptomatology and complaints of pain." Id. at ¶ 28. Dr. Meyer further opined that Plaintiffs "repeated complaints of pain along with [Dr. Popowitz's] examination showing that [Plaintiff] could not dorsiflex his right foot were ample evidence warranting an immediate referral to a neurologist." Id. Dr. Meyer opined that Dr. Popowtiz was "palpably negligent" in "fail[ing] to diagnose neuropathy and foot drop despite such clear evidence from the date of surgery". Id. Dr. Meyer further opined that early diagnosis of Plaintiff s condition and a neurology consult would have greatly improved his chances of a full recovery." Id. at ¶ 29. Dr. Meyer asserted that early intervention would have afforded Plaintiff access to treatments such as exercise therapy, intensive physical therapies, nerve stimulation, or nerve surgery which could have significantly improved his recovery.
Dr. Meyer disagreed with Drs. Langan and Weinberger regarding the significance of Plaintiffs ability to drive, fish and walk without assistance. Dr. Meyer opined that "dorsiflexion does not imply an inability to walk, drive or fish ... [and that] driving does not require dorsiflexion at all since the driver can rely on a number of muscles, including his calf muscles, to release the pedals. Fishing likewise does not require dorsiflexion since the calf muscles are used to keep the body steady." Id. at ¶38. Dr. Meyer stated that "[f]or these reasons, [Plaintiff's] driving and fishing '"activities' are not inconsistent with his nerve damage as Dr. Weinberger would suggest. They are simply irrelevant." Id.
In sum, Drs. Collier and Meyer opined within a reasonable degree of medical certainty that Plaintiff had a compression injury as a result of the THR surgery. They opined that Defendants failed to correctly diagnose drop foot, neuropathy and sciatic nerve palsy. They further opined that Defendants failed to refer Plaintiff for a neurological consult despite indications pointing to a diagnosis of drop foot and needlessly delayed the referral until it was too late to improve Plaintiffs chances of recovery, which resulted in permanent neuropathy.
Defendants argue that Plaintiffs experts may not advance a different theory of causation that was not pleaded in his Bill of Particulars. Plaintiff alleged that his injuries resulted from a stretching of his nerve, whereas his experts opine that his injuries resulted from a compression of the peroneal nerve from a Coban wrap, Stockinette, Abduction pillow and ace wrap at the level above the knee. Collier Affidavit at ¶ 61.
The Court declines to consider a new theory of liability that was not previously alleged by Plaintiff in his Bill of Particulars. Garcia v Richer, 132 A.D.3d 809, 810 [2nd Dept 2015] ("[T]he Supreme Court properly declined to consider the alternative theory of liability raised by the plaintiffs expert for the first time in opposition to the defendants' motion.") (citing Kelley v Kingsbrook Jewish Med. Ctr., 100 A.D.3d 600 [2012]; Dolan v Halpern, 73 A.D.3d 1117, 1119 [2ndDept 2010]; Langan v St. Vincent's Hosp. of N.Y., 64 A.D.3d 632, 633 [2009]). The court in Dolan v Halpern, supra 1117, 1119 [2nd Dept 2010], found that summary judgment should have been granted to the defendants because "[t]he plaintiffs expert affidavit failed to address the theory of liability alleged in the plaintiffs bill of particulars regarding the appellants' failure to diagnose a bile duct leak, asserting instead an alternative theory of liability for the first time in opposition to the motions." 73 A.D.3d at 1119 (citing Golubov v Wolfson, 22 A.D.3d 635 [2005]; Winters v St. Vincent's Med. Ctr. of Richmond, 273 A.D.2d 465 [2000]; Alvarez v Lindsay Park Hous. Corp., 175 A.D.2d 225 [1991]; Kane v City of New York, 137 A.D.2d 658, 659-660 [1988]).
In their reply papers Defendants assert that there is no evidence that Dr. Popowitz stretched Plaintiff's sciatic nerve intra-operatively. Plaintiff appears to have abandoned that theory.
Plaintiff failed to raise a triable issue of fact on their claim that his injury resulted from an intra-operative complication as alleged in the Bill of Particulars. Accordingly, Defendants' motion for summary judgment is granted as to that claim.
Failure to Diagnose and Refer Plaintiff to a Neurologist Shortly After Surgery
Plaintiff claims that there are triable issues of fact regarding whether Plaintiff had drop foot from the date of surgery which should have been diagnosed by Dr. Popowitz; whether Dr. Popowitz's failure to heed Plaintiffs complaints of pain unnecessarily delayed treatment; and whether early diagnosis of drop foot and neuropathy would have improved Plaintiffs recovery and alleviated his pain.
Plaintiffs experts rebut the opinions of Defendants' experts that a neurological consult would have been premature the day of the plaintiffs discharge from the hospital, opining that the post-operative imaging and post-operative examinations from P.A. Rifkin and Dr. Popowitz warranted a referral at that time. Plaintiffs expert orthopedist, Dr. Collier, opined "to a reasonable degree of medical certainty that [Dr.] Popowitz failed to recognize the significance of [Plaintiff s] complaints of numbness and pain following surgery and failed to perform an immediate and thorough neuromuscular assessment and an expeditious workup to properly ascertain its source." Affidavit of Dr. Collier at ¶ 83. Dr. Collier further opined that Dr. Popowitz should have ordered a stat MRJ and post-operative MRI. Importantly, Dr. Collier opined that Dr. Popowitz should have referred Plaintiff for a neurological consult after the surgery, as indicated by his own examination of Plaintiff, which showed that he could not dorsiflex his right foot. Plaintiffs expert neurologist, Dr. Meyer, opined within a reasonable degree of medical certainty that Defendants failed to diagnose Plaintiffs drop foot, to conduct all available diagnostic tests, and to refer him to a neurologist despite ample evidence warranting a referral. Dr. Meyer opined that Defendants delayed in making a referral for a neurological consult until it was too late to improve Plaintiffs chances of recovery.
There is a question of fact created by competing expert affidavits. Conflicting expert affidavits on the claim of failure to diagnose and to refer for a neurology consult raises an issue of material fact sufficient to defeat summary judgment. Barnett v Fashakin, 85 A.D.3d 832, 835 [2ndDept 2011] ("Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions...Such credibility issues can only be resolved by a jury"), citing Feinberg v Feit, 23 A.D.3d 517, 519 [2nd Dept 2005]; Florio v Kosimar, 79 A.D.3d 625 [1st Dept 2010]; Erdogan v Toothsavers Dental Servs., P.C., 57 A.D.3d 314 [1st Dept 2008]; Bradley v Soundview Healthcenter, 4 A.D.3d 194 [1st Dept 2004]; Santiago v Brandeis, 309 A.D.2d 621 [1st Dept 2003] (holding that a classic conflict between experts is presented precluding a grant of summary judgment to either defendant). Plaintiffs experts addressed the issue of Plaintiff s ability to walk, drive and fish, as he described in his Facebook posts, which they opined do not negate his claims of nerve injury. Moreover, Dr. Popowitz testified that "[f]here's no official wording where you can read it in my note, but it's all documented, the weakness in the dorsiflexion and the EHL, which would be construed as partial or incomplete [drop foot]." Dr. Popowitz Deposition at 168-169. Dr. Popowitz testified that "[t]he first signs of weakness in [Plaintiffs] EHL and tibialis anterior presented on postop day two." Id. at 170:2-3. Despite Dr. Popowitz's testimony that Plaintiff showed signs of incomplete drop foot on March 17, 2017, Dr. Popowitz did not refer Plaintiff to a neurologist until April 17, 2017.
Accordingly, Defendants' motion for summary judgment is denied as to Plaintiffs claims of failure to diagnose drop foot and to promptly refer him to a neurologist for evaluation and treatment.
Informed Consent
Defendants move for summary judgment on Plaintiffs claim that they did not obtain informed consent. Defendants contend that the record and the affirmation of Dr. Langan clearly establish that Dr. Popowitz informed Plaintiff about the reasonably foreseeable risks and benefits of surgery and alternatives to surgery in a manner which allowed Plaintiff to make a knowledgeable decision. Defendants assert that Dr. Langan showed that a reasonably prudent person in Plaintiffs severely debilitated condition, with a history of a left hip replacement for a failed core decompression, would not have declined the right hip replacement.
Plaintiff argues that there is no documentary evidence to support Dr. Popowitz's claim that he informed Plaintiff of the risks of the surgery, including nerve, vessel, or tendon damage, Plaintiff testified at his deposition that Dr. Popowitz did not discuss any risks or benefits of the surgery prior to performing the procedure on March 15, 2017. During his deposition, Dr. Popowitz stated that he could not recall whether he mentioned drop foot to Plaintiff as one of the risks of surgery. Plaintiff contends that there is an issue of material fact regarding informed consent that warrants consideration by a jury.
Plaintiff has established a question of material fact on the issue of informed consent. Dr. Popowitz did not document the information and advice he allegedly provided to Plaintiff, contemporaneously or otherwise. Plaintiff disputes Dr, Popowitz's claims as to what was said regarding the risks and benefits of surgery; indeed, he asserted that he received no information of the risks prior to surgery. Accordingly, Defendants' motion for summary judgment is denied as to Plaintiffs claim that Defendants did not obtain informed consent.
Defendant Nyack Hospital Motion for Summary Judgment
Nyack Hospital moves for summary judgment and dismissal of all claims brought against it. Nyack Hospital asserts that Plaintiff alleged in his Verified Bill of Particulars to it that the hospital is vicariously liable for the alleged medical malpractice of Dr. Popowitz, which occurred during the total right hip replacement surgery on March 15, 2017. Nyack Hospital asserts that Plaintiff alleged, in the alternative, that the post-operative care provided at Nyack Hospital caused his injuries.
Nyack Hospital contends that it cannot be held vicariously liable for Dr. Popowitz's alleged negligence because Dr. Popowitz was not an employee of the hospital. Citing multiple cases, Nyack Hospital sets forth the standard that generally a hospital '"may not be held vicariously liable for the malpractice of a private attending physician who is not an employee.'" Muslim v Horizon Med. Group, P.C., 118 A.D.3d 681, 683 [2nd Dept 2014] (quoting Toth v Bloshinsky, 39 A.D.3d 848, 849 [2nd Dept 2007]); see also Fiorentino v Wenger, 19 N.Y.2d 407 [1967]; Bucsko v Gordon, 118 A.D.3d 653, 655 [2nd Dept 2014]; Corletta v Fischer, 101 A.D.3d 929, 930 [2nd Dept 2012]; Martinez v La Porta, 50 A.D.3d 976 [2nd Dept 2008]; Rizzo v Staten Island University Hosp., 29 A.D.3d 668 [2nd Dept 2006]; Gar son v Beth Israel Medical Center, 41 A.D.3d 159 [1st Dept 2007]). Nyack Hospital acknowledges that "in order to establish its entitlement to judgment as a matter of law defeating a claim of vicarious liability, a hospital must demonstrate that the physician alleged to have committed the malpractice 'was an independent contractor and not a hospital employee.'" Muslim, 118 A.D.3d at 683 (quoting Alvarado v Beth Israel Med. Ctr., 78 A.D.3d 873, 875 [2nd Dept 2010]).
The record clearly shows that neither Dr. Popowitz nor PA Rifkin, who is not sued herein, were employees of Nyack Hospital during the time period that Plaintiff was treated at the hospital from March 15, 2017 through March 17, 2017, or during Plaintiffs follow up treatment and care outside the hospital. Dr. Popowitz testified that he has privileges at Nyack Hospital, but does not have any other professional relationship with the hospital in any capacity. The record contains no any evidence of control by the hospital over Dr. Popowitz which could support a claim based upon vicarious liability. The initial referral of Dr. Popowitz to Plaintiff by Nyack Hospital employee PA Anthony Cestaro during Plaintiffs March 1, 2017 visit to the ER does not establish liability. Plaintiff voluntarily followed up on the recommendation after leaving the ER and had his first appointment with Dr. Popowitz at his private office at Northeast. The lack of any special relationship to Nyack Hospital is also demonstrated by the fact that Dr. Popowitz also has privileges at Good Samaritan Hospital and initially scheduled the surgery to take place there. Dr. Popowitz, an independent contractor physician, referred Plaintiff to Nyack Hospital after Good Samaritan Hospital declined to take his insurance. Nyack Hospital was not Dr. Popowitz's employer and it was not liable for his acts or omissions. See Corletta v Fischer, 101 A.D.3d 929, 930 [2nd Dept 2012] ("The Hospital established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiffs decedent was referred to the Hospital by her private physician, and that the treatment o/the plaintiffs decedent was performed at the Hospital by private attending physicians."); Thurman v United Health Services Hospitals, Inc., 39 A.D.3d 934, 936 [3rd Dept 2007] (holding that "[physician's affiliation with defendant, his presence at defendant's facility or his assumption of the role of reading and interpreting decedent's CAT scan" were not sufficient "to impute his negligence to defendant [hospital]"). Accordingly, Plaintiffs claims of negligent hiring and supervision fall by the wayside.
Moreover, Nyack's Hospital's expert, Orthopedic Surgeon Dr. Douglas Unis, opined in his affirmation that all care provided by Nyack Hospital from March 15, 2017 through March 17, 2017 was within the standard of care and did not proximately cause plaintiffs injuries. Dr. Unis opined that it is typical to have a patient full weight bearing as soon as possible after a total hip replacement and undergoing physical therapy. Dr. Unis further opined that it is within the standard of care for hip dislocation precautions, such as not internally rotating the feet, to be in place and the operative extremity should be positioned using an abductor pillow to help keep the leg in alignment with the hip and prevent internal rotation of the hip. Dr. Unis rendered his opinion, within a reasonable degree of medical certainty, that the post-operative care and treatment provided to Plaintiff at Nyack Hospital was within the standard of care and that the care provided to him by hospital employees did not cause or contribute to his injuries.
Nyack Hospital also cannot be liable on Plaintiff's cause of action alleging a lack of informed consent. "In terms of a medical malpractice claim predicated on lack of informed consent, where a private physician attends his or her patient of a hospital, it is the duty of the physician, not the hospital to obtain the patient's informed consent." Salandy v Bryk, 55 A.D.3d 147, 152 [2nd Dept 2008]. Even if there was a lack of informed consent, there is no evidence that Nyack Hospital knew or should have known that Dr. Popowitz did not have plaintiff's informed consent. Cirella v Central General Hosp., 217 A.D.2d 680, 681 [2nd Dept 1995] (dismissing lack of informed consent claim against hospital where "there was no evidence presented to show that the defendant knew or should have known that the plaintiffs private physicians were acting without informed consent or should have had reason to suspect malpractice").
Plaintiff did not oppose Nyack Hospital's contention that he has not shown any basis for holding Nyack Hospital liable for his injuries. Indeed, while Plaintiff labels his opposition as responsive to the motions of all Defendants, including Nyack Hospital, he did not address or refute the hospital's arguments. Plaintiff focused solely on opposing the motion of Defendants Dr. Popowitz and Northeast Orthopedics and failed to raise a triable issue of material fact as to Nyack Hospital's negligence on any ground, including the care and treatment rendered by the hospital's physical therapists and nurses.
After stating that the opposition applied to all four defendants' motions, the only other reference to Nyack Hospital in Plaintiffs counsel's affirmation was to rely on statements by the hospital's expert, Dr. Unis, that Plaintiff had "high steppage with his right leg to compensate for right ankle dorsiflexion weakness" postoperatively as early as the date of surgery and that the EMG revealed evidence of an acute moderate right sciatic neuropathy.
Accordingly, Nyack Hospital's motion for summary judgment is granted.
SUMMARY
It is ORDERED that the motion of Defendants Dr. Popowitz and Northeast Orthopedics for summary judgment is granted in part and denied in part; and it is further
ORDERED that the motion of Nyack Hospital for summary judgment is granted and all causes of action asserted against it are dismissed.
The remaining parties shall appear before the undersigned for a conference on July 13, 2020 at 9:15 a.m.