Opinion
INDEX NO. 607808/2017
01-06-2020
MARTHA COELLO, Plaintiff, v. VITO J. RIZZO, D.P.M., 21ST CENTURY FOOT CARE, P.C. and GOOD SAMARITAN HOSPITAL MEDICAL CENTER, Defendants.
NYSCEF DOC. NO. 87 SHORT FORM ORDER Present: HON. RANDY SUE MARBER JUSTICE Motion Sequence...05
Motion Date...09/17/19 Papers Submitted:
Notice of Motion...............................x
Affirmation in Opposition.....................x
Affirmation in Opposition.....................x
Reply Affirmation..............................x
Upon the foregoing papers, the motion by the Defendant, GOOD SAMARITAN HOSPITAL MEDICAL CENTER ("Good Sam"), seeking an Order pursuant to CPLR § 3212: (i) dismissing any and all direct claims against Good Sam relating to the care and treatment by nursing staff and personnel; and (ii) dismissing any vicarious liability claims against Good Sam as they relate to the actions of co-defendants, VITO J. RIZZO, D.P.M. ("Dr. Rizzo") and 21 CENTURY FOOT CARE, P.C. ("21st Century"), and thereby dismissing the Complaint in its entirety against Good Sam, is determined as hereinafter provided.
In this medical malpractice action, the Plaintiff, MARTHA COELLO, seeks to recover for personal injuries allegedly resulting from the negligent care and post-operative treatment rendered by the Defendants relating to a bunionectomy performed by Dr. Rizzo, which operation is referred to as a "closing base wedge osteotomy with plate and screw fixation" and an arthroplasty of the left fifth digit. During the course of the surgery, there was an unintended fracture at the osteotomy site at the first metatarsal bone. The gravamen of the Plaintiff's claims involve Dr. Rizzo's attempts to fix and stabilize the fracture, the type of equipment and/or instrumentation provided by and/or available at Good Sam in order for Dr. Rizzo to achieve appropriate stabilization of the fracture resulting in further injuries and prolonged postoperative healing from the operation.
In her Bill of Particulars, the Plaintiff alleges, in pertinent part, that the hospital was negligent, inter alia, in failing to act skillfully and as a competent hospital and/or hospital staff would and should have acted under the circumstances; in failing to take the necessary steps to care for and cure Plaintiff's conditions; in failing to prevent the damage to the Plaintiff; in using such unskillful conduct in care and treatment of the Plaintiff such that she sustained complications; in improperly and negligently failing to use proper podiatric steps, modes and procedures which would have prevented the negligence herein; in failing to use the accepted modes, practices and procedures made and provided for; in failing and neglecting to order and/or administer proper pre-operative, operative and/or post-operative care to this plaintiff; in failing to administer prompt and adequate care so as to have avoided the permanent injuries sustained; in failing to use the necessary skill and judgment as is ordinarily possessed by a hospital in the community; in treating the Plaintiff in a manner contrary to the accepted rules and standards of podiatric practice within the community wherein said treatment was rendered to the Plaintiff; and the Defendant, through itself, its agents, servants and/or employees was further negligent in failing to take the necessary care and caution to prevent the injuries to the Plaintiff (See Plaintiff's Bill of Particulars at ¶ 2, annexed to Defendant's Motion as Exhibit "D").
The seminal facts underlying the Plaintiff's claims are as follows. The Plaintiff was a longtime patient of Dr. Rizzo, who is a member of co-Defendant 21st Century. The Plaintiff had a documented history of podiatric treatment which reveals that conservative measures did not provide relief. In April 2015, Plaintiff presented to Dr. Rizzo with complaints of left foot bunion. After various visits with Dr. Rizzo, on May 28, 2015, the Plaintiff consented to undergo the bunionectomy of the left foot, closing base wedge osteotomy and arthroplasty of the fifth toe of the left foot at Good Sam.
On June 12, 2015, the Plaintiff was admitted to Good Sam as a patient of Dr. Rizzo for presurgical testing. The Plaintiff was thereafter admitted for the subject surgery on June 19, 2015 again as a patient of Dr. Rizzo. The surgery was entirely performed by Dr. Rizzo, and the assistant was noted to be Anuj Gogna, a second-year resident employed by Good Sam. While the operative note was dictated by Dr. Gogna, it was signed by Dr. Rizzo. In pertinent part, the operative report noted a fractured osteotomy site which was ultimately fixated using a Synthes plate.
The parties do not dispute that Dr. Rizzo performed the entire surgery himself and that his assistant, Dr. Gogna, did not participate other than retraction. Nor is it disputed that Dr. Gogna did not shave any portion of the bone, did not perform any portion of the osteotomy, and did not perform any portion of the arthroplasty on the left fifth digit.
At his deposition, Dr. Rizzo testified that he attempted to fix the fracture in several ways. First, he attempted to remove the screw that caused the fracture and replaced it with another screw which was unsuccessful (See Dr. Rizzo Deposition Transcript at p. 118, annexed to Defendant's Motion as Exhibit "G"). He then tried to stabilize the fracture with an older technique with use of K wire, but that did not provide for proper closure (Id. at p. 119). Dr. Rizzo then called for a trauma kit (Id. at p. 120).
Dr. Rizzo testified that if there was any specific type of instrumentation or hardware necessary for a particular procedure, he would request that such instrumentation be ordered by hospital in advance (Id. at pp. 105-106). As to trauma kits and other equipment to augment stability of a fracture, Dr. Rizzo testified that there was a general understanding that such equipment would be available at the hospital (Id. at pp. 108-109). As to the specific trauma kit provided by Good Sam when Dr. Rizzo needed to stabilize the Plaintiff's fracture, he testified that it was "not an ideal one" (Id. at p. 102). Dr. Rizzo was also of the opinion that the subject trauma kit provided by Good Sam was not specific for foot surgery and did not have a plate adequately sized or configured for appropriate stabilization (Id. at p. 121). Notably, Dr. Rizzo testified that "the Synthes plate that [he] used at that time, on June 19, 2015" was not the standard of care for the treatment that he performed (Id. at p. 165). At the time of the Plaintiff's surgery, Dr. Rizzo thought that the "Zimmer system" would also have been available which differs from the "Synthes system" he was provided with in that the Zimmer has different size configuration plates, different quality of materials (Id. at pp. 161-162). Dr. Rizzo believed that neither system was "really designed for the needs of the podiatric surgeon" (Id.). Dr. Rizzo further testified that prior to June 19, 2015, he had made several requests to have a different system other than the Synthes or the Zimmer available at the hospital as part of its warehouse (Id. at p. 163). However, his requests were not responded to until "more recently". According to Dr. Rizzo, "they really didn't care." (Id. at pp. 163-164).
After the surgery, during a post-op follow-up visit, the Plaintiff testified that Dr. Rizzo admitted there was a fracture during the surgery, and told her that he did not use the "right equipment" to stabilize the fracture (See Plaintiff's Deposition Transcript at pp. 69 and 73, annexed to Defendant's Motion as Exhibit "F"). Dr. Rizzo's office notes from the Plaintiff's post-op visit on September 14, 2015 also reveals that the "appropriate plating for stabilization was not available which resulted in the osteotomy site "not healing well" (See Dr. Rizzo's Records, annexed to Plaintiff's Opposition as Exhibit "A").
In support of its motion, Good Sam submits the expert affirmation of Michael Trepal, D.P.M. (See Dr. Trepal Affirmation, annexed to Defendant's Motion as Exhibit "L"). Dr. Trepal opines that the care and treatment rendered to the Plaintiff by the residents, nurses, staff and ancillary personnel employed by Good Sam was at all times within accepted standards of care. More specifically, Dr. Trepal opines that the surgical management, medical treatments, diagnostic testing and overall management of the Plaintiff was at the sole discretion and direct supervision of the attending physician, Dr. Rizzo. He further opines that Good Sam, its residents, nurses, staff and personnel appropriately followed the directions of the treating private attending podiatrist and did not cause or contribute to the purported injuries alleged by the Plaintiff. Dr. Trepal also sets forth his opinion concerning "the issue of plating", opining within a reasonable degree of medical certainty that "the Synthes plate which was provided was adequate to repair the intraoperative complication of the fracture and that postoperative x-rays show acceptable bone alignment." Dr. Trepal further opines that "[i]n any event, the decision to go forward with the surgery and responsibility for ensuring that any special equipment is available prior to the surgery falls on the Attending physician and the failure to do so does not fall on the responsibility of hospital personnel." (See Dr. Trepal Affirmation at ¶ 19).
Based on the opinions of Dr. Trepal, it is argued that any direct claims of negligence against Good Sam regarding the diagnostic procedures, advice, surgery, treatment, and follow up care provided cannot stand as all decisions regarding which tests to order, diagnosis, the choice and performance of surgical interventions and the manner in which the surgery and choice of surgical equipment used were solely within the purview of the attending, private podiatrist and not by the residents, including Dr. Gogna, nurses or other employees of Good Sam. It is further argued that Good Sam did not depart from the accepted standards of medical, surgical, podiatric or nursing care in any way. Moreover, Good Sam submits that any claim of vicarious liability against it based on the alleged negligent conduct of the Plaintiff's private physician, Dr. Rizzo, must be dismissed.
Opposition to Good Sam's motion is submitted by both the Plaintiff and co-Defendant Dr. Rizzo. Preliminarily, the Plaintiff concedes that the Defendant, Good Sam, should not be held vicariously liable for the acts of Plaintiff's private attending physician, Dr. Rizzo, or Dr. Gogna, a second-year resident employed by Good Sam. As such, the Plaintiff does not oppose the branch of Good Sam's motion which seeks dismissal of her vicarious liability claims.
However, the Plaintiff does oppose the branch of Good Sam's motion which seeks dismissal of the direct claims asserted against it, including the failure to act as a competent hospital (i.e. have adequate equipment/instruments); in treating the Plaintiff in an inadequate, dangerous, and improper manner; in improperly and negligently failing to use proper steps, modes and procedures, which would have prevented the negligence; in failing to use due care and caution; in failing to use necessary skill and judgment possessed by a hospital in the community; and in failing to take necessary care and caution to prevent injury to the Plaintiff. The Plaintiff argues that Good Sam failed to meet its prima facie burden based on the failure to address the issue related to the availability of trauma kits/fracture kits. The Plaintiff highlights that the issue of whether Good Sam had proper instrumentation and/or equipment trays to utilize when Dr. Rizzo encountered a complication during his surgery, which issue was never addressed in the moving papers. It is further posited that Good Sam attempts to mislead the Court by emphasizing that it was Dr. Rizzo who made "all the decisions" with regard to the equipment utilized during a surgery. In doing so, the Plaintiff urges that Good Sam misses a key issue in the case, to wit, that it was the hospital's responsibility to order and warehouse appropriate "equipment" and that the hospital refused to order appropriate trauma kits despite Dr. Rizzo's prior requests to do so. To this end, the Plaintiff posits that Good Sam's expert, Dr. Trepal, does not render any opinion as to the "standard of care related to the ordering and/or acquisition of medical instrumentation and/or equipment" other than generally referring to Dr. Rizzo's testimony that his staff would inform the booking staff at Good Sam as to the type of equipment needed for surgery. In support of her position, the Plaintiff does not proffer her own expert, but rather, relies upon Dr. Rizzo's sworn testimony arguing that Dr. Rizzo can be considered an expert witness on the Plaintiff's behalf.
The Defendants, Dr. Rizzo and 21st Century, submit opposition to Good Sam's motion insofar as the movant seeks to establish as a matter of law that these Defendants were responsible for "ordering, providing or warehousing the trauma kit, which included the plating used by [Dr. Rizzo] to address the complication encountered during the surgery of June 19, 2015". Counsel for Dr. Rizzo and 21st Century emphasizes that Dr. Rizzo's testimony reveals a clear distinction between (i) the instrumentation ordered for and used during the surgery itself (i.e. the surgical kit); and (ii) equipment, such as K-wires and trauma kits that are expected to be provided and warehoused by Good Sam, which would be called for in the case of a surgical complication. These opposing Defendants also seek to make clear that during his testimony, Dr. Rizzo never suggested that the Plaintiff's surgical complication was caused by instrumentation used for the surgery itself comprising of the surgical kit. In sum, it is submitted that neither Dr. Rizzo, nor 21st Century's office staff, was responsible for ordering the equipment expected to be kept on hand to address possible surgical complications and that any suggestion to the contrary is a result of incorrectly conflating the two: instrumentation (hardware/surgical kit used for surgery itself) and equipment such as trauma kits ordered and warehoused by the hospital.
In reply, counsel for Good Sam takes the position that the Plaintiff, for the first time in her opposition papers, attempts to advance a new theory of liability that the phrase "failure to act as a competent hospital" somehow includes the "failure to have adequate equipment/instruments." The movant couches this claim as a new and previously unpled theory that is not found anywhere in the pleadings. Notably, movant's counsel also acknowledges that the "deposition of co-defendant Dr. Rizzo did raise complaints regarding his dissatisfaction with the equipment he used", but that Plaintiff's counsel never then sought to amend the pleadings to include this "very specific complaint".
Counsel for Good Sam also argues in reply that the Plaintiff failed to refute Dr. Trepal's opinions and that Dr. Rizzo's deposition testimony cannot serve as a basis for denying summary judgment. It is again emphasized that Dr. Rizzo's testimony concerning the equipment he used being "less than ideal" is Plaintiff's attempt to create an issue of fact by improperly advancing new theories of liability. With specific respect to Dr. Rizzo's opinions, movant's counsel attacks Dr. Rizzo's testimony claiming that he fails to state the standard of care and fails to state how the hospital departed from same.
As a final point, movant's counsel urges that Good Sam has no burden to refute or address the purported "unsubstantiated claims" made by Dr. Rizzo at his deposition. In this regard, it is argued that Dr. Rizzo's testimony that he would have opted for different treatment, without more, "represents, at most, a difference of opinion among physicians, which is not sufficient to sustain a prima facie case of malpractice", citing to Topel v. Long Island Jewish Med. Ctr., 55 N.Y.2d 682 [1981].
In reply to Dr. Rizzo's opposition, movant's counsel merely reiterates that the issue of failing to have adequate equipment/instrumentation should not be before this Court as the allegation was never pled.
Legal Analysis
"The essential elements of medical malpractice are (1) a deviation or departure from accepted medial practice, and (2) evidence that such departure was a proximate cause of injury (quotations and citations omitted)." [Faicco v. Golub, 91 A.D.3d 817, 818 (2d Dept. 2012)]. "Thus, [o]n a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby (quotations and citations omitted." [Id. at 817]. "In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars (citations omitted)." [Wall v. Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 1045 (2d Dept. 2010)].
Once a defendant has demonstrated his entitlement to summary judgment, "the burden shifts to the plaintiff to 'submit evidentiary facts or materials to rebut the prima facie showing by the defendant . . . so as to demonstrate the existence of a triable issue of fact.' " [Savage v. Quinn, 91 A.D.3d 748, 749 (2d Dept. 2012), quoting Alvarez v. Prospect Hosp., supra at p. 324 and citing Stukas v. Streiter, 83 A.D,3d 18 (2d Dept. 2011)].
At the outset, the Plaintiff's claims sounding in vicarious liability against the hospital for the alleged negligent acts or omissions of Dr. Rizzo are dismissed as the Plaintiff does not oppose this branch of the motion.
With regard to the direct claims, however, the Defendant, Good Sam, has established its entitlement to judgment as a matter of law dismissing the direct claims of negligence asserted against it. Via the expert affirmation of Dr. Trepal, Good Sam demonstrated that it did not deviate from accepted standards of care in the care and treatment provided to the Plaintiff and that its treatment of the Plaintiff did not proximately cause any of the alleged injuries. The burden therefore shifted to the Plaintiff to establish the existence of a material issue of fact.
In opposition, the Plaintiff and the co-Defendants presented sufficient evidence to defeat Good Sam's motion for summary judgment by demonstrating that Dr. Rizzo did not have involvement in selecting the trauma kit (plating) with which he was supplied when a complication arose during the Plaintiff's surgery on June 19, 2015; that Dr. Rizzo had made requests for better equipment that was not antiquated on previous occasions but certain department chiefs did not act on such requests; whether the Synthes plate that was provided by Good Sam was the standard of care in 2015; and whether the Synthes plate that was used which Dr. Rizzo found to be "less than ideal" and not in accordance with accepted standards of care resulted in issues with the osteotomy and alignment of the bone. In light of the totality of the evidence presented, clear issues of fact remain that precludes dismissal of the action as against Good Sam on summary judgment.
The Court finds unavailing the movant's argument that the Plaintiff attempted to advance a new theory of liability for the first time in opposition to the motion. The Plaintiff's Bill of Particulars can be read to include the claim that the hospital failed to provide adequate equipment which could have prevented the Plaintiff's injuries (See Mackauer v. Parikh, 148 A.D.3d 873, 878 [2d Dept. 2017]). In any event, the failure to provide, order and/or warehouse adequate equipment and/or instrumentation was a claim that the Defendant, Good Sam, clearly anticipated and addressed in its motion for summary judgment. Indeed, not only did Good Sam acknowledge in its reply that the issue was addressed at Dr. Rizzo's deposition, but its own expert addressed the "issue of plating", opining that the Synthes plate that was provided was adequate to repair the fracture and that post-operative x-rays showed proper bone alignment. The moving Defendant's expert also placed great emphasis on the issue of whether the private attending physician or the hospital is responsible for ordering and/or ensuring the proper equipment is available during surgery. Under these circumstances, a jury should be permitted to determine whether the hospital in fact ordered and warehoused the proper trauma kits (i.e. plating) to treat unintended complications during podiatric surgery, such as that which occurred here, and, if so, whether the failure to order and warehouse the proper equipment constituted medical malpractice.
Moreover, the claim that Good Sam was not on notice of the Plaintiff's purported "newly alleged theory of liability" is belied by the co-defendant's opposition on the issue of whether the hospital was solely responsible for ordering and warehousing the trauma kits (i.e. proper plating specific for podiatric needs).
The Court also finds the Plaintiff's reliance on Dr. Rizzo's deposition testimony and office records insofar as they demonstrate that (i) the proper equipment (i.e. trauma kits/plating) that comported with the standard of care in 2015 was not available during Plaintiff's surgery and not ordered by the hospital despite prior requests to do so; and (ii) the failure to provide the proper trauma kit and/or plating specific to podiatric practice resulted in the bone "not healing well" thereby causing injury to Plaintiff. Nor does the movant address in its reply the legal authority relied upon by Plaintiff in this regard (See McDermott v Manhattan Eye, Ear & Throat Hosp., 15 N.Y.2d 20 [1964]). Indeed, the circumstances presented here are distinguishable from cases where a defendant doctor's testimony does not establish the claim (See Gardner v. Wider, 32 A.D.3d 728, 730 [2d Dept. 2006]).
Moreover, when Dr. Rizzo was asked at his deposition for the basis of his opinion that the plating provided did not comport with the standard of care in 2015, he unequivocally testified that it was based on his experience and the opportunity over all these years to review cases similar to that of the Plaintiff. Whether the Plaintiff will be able to sustain her burden at trial in sole reliance upon the opinions of Dr. Rizzo remains to be seen. At this juncture, however, denial of the hospital's motion is warranted.
Accordingly, it is hereby
ORDERED, that the branch of the motion by the Defendant, GOOD SAMARITAN HOSPITAL MEDICAL CENTER, seeking an Order pursuant to CPLR § 3212, dismissing any and all direct claims against Good Sam relating to the care and treatment by nursing staff and personnel, is DENIED; and it is further
ORDERED, that the branch of the motion by the Defendant, GOOD SAMARITAN HOSPITAL MEDICAL CENTER, seeking an Order dismissing any vicarious liability claims against it as they relate to the actions of co-defendants, VITO J. RIZZO, D.P.M. and 21 CENTURY FOOT CARE, P.C., is GRANTED. Dated: Mineola, New York
January 6, 2020
/s/ _________
Hon. Randy Sue Marber, J.S.C.