Opinion
10980/04.
Decided August 28, 2008.
Levine Grossman, Mineola, NY, for Plaintiff.
Stephen P. Haber, Esq., Bennett, Avervais Bertrand, Esqs. New York, NY, for Defendants.
The motions (Mot. Seq Nos. 007 and 008) seeking to "renew and reargue" this Court's Order of February 11, 2008, and the cross motion (Mot. Seq. No. 009) by plaintiff for reargument each is denied.
Although denominated as motions for leave to "renew and reargue", the motions present no new evidence and are, in actuality, applications for leave to reargue (CPLR 2221).
This is an action to recover compensatory damages for personal injuries allegedly sustained as the result of defendants' medical and chiropractic malpractice. Defendants Stanley Stos, D.C. ("Stos"), St. Vincent's Medical Center ("SVMC"), George Kuczabski, M.D. ("Kuczabski") and Phyllis Gelb, M.D. ("Gelb") each timely moved for summary judgment. By Order dated February 11, 2008, this Court granted the applications of Stos and Gelb dismissing the complaint as against them, and denied the applications of SVMC and Kuczabski.
In Motion Seq. No. 007, defendant Kuczabski now challenges that Order, arguing that (1) the care and treatment he rendered was in accordance with accepted standards of medical care; (2) he cannot be held liable for the care rendered to plaintiff by codefendant SVMC: and (3) the acts and omissions attributed to him did not proximately cause plaintiff's alleged injuries.
In Motion Seq. No. 008, defendant SVMC argues that the Court should have granted it summary judgment because (1) its treatment of plaintiff had no affect on the care rendered to her by the codefendants after her discharge from the hospital; (2) any delay in diagnosing plaintiff's condition did not proximately cause her alleged injuries; and (3) SVMC cannot be held liable for the care rendered to plaintiff by subsequent treating physicians.
In Motion Seq. No. 009, plaintiff argues that, in granting summary judgment in favor of defendants Stos and Gelb, the Court (1) misapprehended the relevant facts in failing to consider that defendants Gelb and Stos began and continued chiropractic treatment that was contraindicated by the available medical information; (2) failed to consider that the existence of countervailing medical affidavits from the parties' respective experts raised triable questions of fact precluding summary judgment; (3) failed to recognize that defendant Stos's reliance on his own medical affidavit in support of his entitlement to summary judgment, raised, at a minimum, an issue of credibility for the jury; (4) wrongly considered defendant Stos' reply affirmation which raised new facts and arguments that properly should have been raised only in his initial moving papers; and (5) misapplied the standards of proximate cause in failing to consider that as a result of the actions of these defendants plaintiff's condition deteriorated to the point that extensive surgical intervention was required.
This action arose following plaintiff Tara Colao's involvement in a traffic accident on October 7, 2001. She was removed by ambulance to SVMC, where she came under the care of the attending physician in the Emergency Department. That physician conducted the initial physical evaluation of plaintiff, ordered x-rays and called in Dr .Kuczabski, a trauma surgeon.
Dr. Kuczabski examined plaintiff, finding that the neck and lower spine had minimal tenderness, but that there was no distal focal deficit. He also was informed by the Emergency Department resident that the resident radiologist had read the x-rays and that they were negative, i.e., they showed neither a fracture nor dislocation of the cervical spine. Plaintiff remained overnight in the hospital on Dr. Kuczabski's instructions and was discharged the next day, with instructions to make a follow-up appointment with him at his office.
The formal radiology report, prepared on October 12, 2001, reported a "C5-C6 step-off deformity, suggestive of dislocation." Dr. Kuczabski maintains that he was never told of this report.
Dr. Kuczabski next saw plaintiff at his office on October 18, 2001. Plaintiff complained of neck pain. Dr. Kuczabski's physical examination revealed no change from his examination in the Emergency Department. He ordered an MRI, and advised her to see a neurologist, Stephen Kulic, M.D., to determine the cause and possible treatment of the neck pain.
The MRI was performed on October 23, 2001, and Dr. Kuczabski again saw the plaintiff on October 25th, at which time she again complained of neck pain. His physical examination indicated minimal tenderness of the neck. He did not have the results of the MRI at that time; again told her to see a neurologist, which she had not yet done; and scheduled another appointment for November 1, 2001. Based on this second office visit, he made no changes to his course of treatment.
On November 1, 2001, plaintiff returned to Dr. Kuczabski's office for the scheduled follow-up appointment. She complained of neck pain radiating to the right arm and fingers. His physical examination revealed minimal tenderness in the neck with no focal deficits. He also reviewed the October 23rd MRI report, which, he states, indicated "central eccentric right C5-6 disk protrusion with slight posterior cord displacement [and] accompanying degenerative changes C5-6 disk." The exam was otherwise "unremarkable." He states that he again told her to consult a neurologist, which she still had not yet done, so that the neurologist could follow up on the MRI results and determine if there was a need for further testing. He also states that he referred plaintiff to defendant Champion Medical Services, Inc., solely for evaluation of the neck pain. He maintains that he did not recommend or prescribe any treatment by Dr. Stos, the chiropractor, at that time or at any later date.
Plaintiff next saw defendant Kuczabski on November 15, 2001, complaining of neck pain. Dr. Kuczabski's examination indicated minimal tenderness of the lower neck, slightly on the right side with no distal focal deficit. At that time, she was scheduled to see Dr. Stos the next day and Dr. Lewis M. Milrod, a neurologist, on the 19th. Dr. Kuczabski made no change in his planned course of treatment at that time.
Plaintiff continued to see Dr . Kuczabski between November 15, 2001 and May 16, 2002 for treatment of keloid scars on her ears and back related to the traffic accident. During this period, she had began treatment with Drs. Stos and Gelb at Champion Medical Services on November 16, 2001, and with Drs. Milrod and Richard C. Straus, a neurologist and a neurosurgeon, respectively, at Neuroscience Associates of New York (none of the latter three are parties to this action).
Dr. Kuczabski states that on November 29, 2001, he again examined plaintiff and found no distal focal deficits. By that time he had reviewed a letter dated November 19, 2001, from Dr. Milrod that, inter alia, recommended that plaintiff undergo a CT plain radiograph inspection of the C5-C6 area "prior to becoming involved with physical therapy".
On December 17, 2001, Dr. Milrod again wrote to Dr. Kuczabski stating that plaintiff had not yet undergone the recommended C-T scan of the C5-C6 area but was receiving physical therapy. He also noted that her "neck pain tends to get better in physical therapy but then returns." A January 28, 2002 letter from Dr. Strauss indicated that a CT scan of the cervical spine was performed on January 9, 2002, the report of which indicated, inter alia, "mildly displaced fractures" and a slightly narrowed spinal canal at C5-C6. In a February 2, 2002 letter to Dr. Milrod, not copied to Dr. Kuczabski, Dr. Straus indicated that treatment options included surgery and continued conservative treatment. On that date, and again following an examination on March 29, 2002, Dr. Straus elected for the more conservative treatment. Following a visit on December 3, 2002, Dr. Straus reported that her condition had "stabilized." In May of 2003, plaintiff came under the care of Dr. Frank Schwab who eventually performed extensive spinal surgery to correct the condition in August 2003.
Dr. Kuczabski further states that during his treatment of the plaintiff from November 29, 2001 onward, plaintiff did not complain to him about pain in her neck or tenderness in the area, and that he understood she was consulting with Drs. Milrod, Gelb and Stos about this condition. Other than receiving correspondence from Drs. Milrod and Straus in 2001 and 2002, Dr. Kuczabski did not consult with Drs. Milrod, Gelb and Stos concerning their treatment of plaintiff's cervical spine.
Plaintiff ultimately was diagnosed with "cervical instability, C4-5, C5-6, post fracture with kyphosis, " and underwent extensive spinal surgery at Maimonides Hospital on August 4, 2003, to correct the condition. It is plaintiff's position that had the fracture been diagnosed earlier the surgery would not have been required.
In sum, Dr. Kuczabski argues that none of the actions attributed to him by plaintiff was a proximate cause of her present injuries, and therefore, the Court erred in denying his motion for summary judgment dismissing the complaint as to him. In particular, he argues that the court misapprehended the facts, and that (1) in treating and diagnosing plaintiff in the emergency department on October 7, 2001, it was appropriate for him to rely on the x-ray results as orally relayed to him by the hospital resident; (2) it was not his responsibility to obtain the formal written radiology report from the hospital or radiologist during his follow-up treatment of plaintiff rather it was the responsibility of the hospital to notify him of any difference between the oral and written reports, which it failed to do; (3) since he did not prescribe or recommend chiropractic treatment or physical therapy by Drs. Stos and Gelb, but had merely referred plaintiff to Dr. Stos for evaluation for chiropractic care, he cannot be held liable for any subsequent malpractice committed by either of those co-defendants; and (4) any departure from the acceptable standard of care by him was superseded by the subsequent negligence of Drs. Stos and Gelb.
A defendant's liability for medical malpractice is predicated upon a proximate causal connection between his negligent conduct and the resulting injury. In order to establish that a defendant's negligence was a proximate cause of the patient's injury, the plaintiff must prove that the defendant's negligence was a substantial factor in causing that injury ( Koster v Greenberg, 120 AD2d 644 [2nd Dept 1986]). Conversely, on a motion for summary judgment dismissing the complaint as against him, it is the burden of the defendant physician to establish that there are no disputed material facts, and that those undisputed facts, when read in a light most favorable to plaintiff, establish that he is not liable for her injuries as a matter of law ( see e.g. Bjorke v Rubenstein, ___ AD3d ___, 2008 WL 2669686 [2nd Dep't 2008]).
Generally, the issue of causation must be based upon competent expert medical testimony. Here, on the initial motion, defendant Kuczabski alleged the above facts and presented the affidavit of an expert who opined that defendant did not depart from acceptable standards of care in treating plaintiff. In opposition, plaintiff raised a triable issue of fact through the affirmation of her medical expert as to whether Dr. Kuczabski failed to adequately treat plaintiff by relying solely on the preliminary oral radiology report passed on to him by the emergency department resident, and in failing to obtain the formal report prior to his follow-up treatment of the plaintiff, thereby delaying the detection and proper treatment of her cervical injury ( see e.g. Kallenberg v Beth Israel Hosp, 45 AD2d 177 [1st Dep't 1974], aff'd 37 NY2d 719). In addition, there are questions of fact concerning defendant Kuczabski's referral to Drs. Gelb and Stos. While Dr. Kuczabski maintains that he referred plaintiff to Champion Medical Services only for evaluation and that the alleged negligence of the latter doctors was a superseding factor in any injury suffered by plaintiff, both Drs. Gelb and Stos allege that Kuczabski referred plaintiff to them for physical therapy. Here, then, a jury properly could determine that Dr. Kuczabski's actions were a substantial factor in causing plaintiff's injuries, thereby raising a question of fact precluding summary judgment ( Kimball v Scors, 59 AD2d 984 [1st Dep't 1977], app denied 43 NY2d 648).).
In this regard, Dr. Kuczabski correctly argues that a physician who follows accepted medical standards in making a referral to another physician for further diagnosis or treatment is neither directly nor vicariously liable for the malpractice of the treating physician ( see e.g. Rich v Dionko, 179 AD2d 987 [3rd Dept 1992]; Brown v Speaker , 33 AD3d 446 [1st Dept 2006]). However, it remains a question of fact in each case whether the referring physician by his own negligence contributed to the plaintiff's ultimate condition ( see e.g. Datiz v Shoob, 125 AD2d 628 [2nd Dept 1986], aff'd 71 NY2d 867 [1988]).
Where, as here, there are unresolved issues of fact and the parties adduce conflicting medical expert opinions, summary judgment is not appropriate — such credibility issues can only be resolved by a jury ( Bjorke v Rubenstein, ___ AD3d ___, 2008 WL 2669686).
Accordingly, the motion (No. 007) of defendant Kuczabski for leave to reargue so much of this Court's prior Order denying his motion for summary judgment is denied in all respects.
A similar analysis may be applied to the argument of defendant SVMC that it is not vicariously liable for the acts of its emergency room physicians and that it is not responsible for the acts of any of the co-defendants once the plaintiff was discharged from the hospital.
It is well-established that acts of omission, as well as acts of commission, can constitute negligence in this case, medical malpractice ( Fonda v Paulsen, 46 AD2d 540 [3rd Dept 1975]).
Thus, when a physician's failure to follow medical protocols in the treatment of a patient amounts to malpractice while he is in the employ of, or while serving as an actual or apparent agent of a hospital, the hospital will be vicariously liable for that omission under traditional principles of control and agency. Here, defendant Kuczabski alleges, and the hospital does not deny, that the hospital's employees failed to advise him that the formal x-ray reading differed from the preliminary oral report given him at the time of plaintiff's emergency treatment on the night of October 7, 2001. According to plaintiff's experts, the failure of the hospital to verify the x-ray results and to advise Dr. Kuczabski of any change prior to the plaintiff's discharge precluded the possibility that plaintiff's condition could be addressed and appropriately treated during the hospitalization. Thus, there remains a question of fact as to the vicarious liability of the hospital for this omission, and its causal connection, if any to plaintiff's injury.
To that extent, at least, defendant SVMC was not entitled to summary judgment dismissing the complaint as to it, and its motion for summary judgment properly was denied.
This is so, notwithstanding that the hospital may not be liable for the malpractice, if any, of defendant Kuczabski, an attending physician, solely on the basis of his use of the hospital' facilities ( Quezada v. O'Reilly-Green , 24 AD3d 744 , 746 [2d Dept. 2005]).
Accordingly, defendant SVMC's motion (No. 008) for leave to reargue that order is denied.
Turning finally to plaintiff's cross motion (No, 009), for leave to reargue, that application also is denied.
Plaintiff came under the care of Dr. Stos on November 16, 2001, upon the referral of Dr. Kuczabski. (These defendants disagree on the nature of that referral, Dr. Kuczabski maintaining that he referred plaintiff for evaluation only, while Dr. Stos alleges that plaintiff was referred for treatment). In either event, Dr. Stos states he read the October 23, 2001 MRI report at the first visit on November 16, 2001, together with the x-rays he took that day. He also requested that SVMC forward the x-rays taken on October 7, 2001. Although he avers that he never received them, he states that his understanding from plaintiff was that the hospital x-rays were negative.
Dr. Stos also discussed the case with Dr. Gelb who, he says, reviewed his x-rays and report with him and examined plaintiff on November 19th.
Plaintiff's expert radiologist has reviewed the films taken at Champion Medical Services by Drs. Stos and Gelb and stated that they are of such poor diagnostic quality that he could not even visualize the vertebral column. Further, plaintiff's expert chiropractor does not raise the issue of Dr. Stos' reading of his non-readable x-ray as a departure.
Based upon the November 16th x-rays and his clinical findings, Dr. Stos began treatment, including adjustment of the spine, on November 19, 2001. Treatment continued on the 20th and 21st. He states that plaintiff showed improvement by the third day. He continued treatment three times a week, in conjunction with the physical therapy that was being overseen by codefendant Dr. Gelb. According to Dr. Stos's office records, the patient was responding positively, although she reported pain of various intensity at each visit. A reevaluation by Dr. Gelb on December 19, 2001, indicated "nice progress" and "modest improvement."
In early January, 2002, plaintiff underwent the CT scan that indicated, inter alia, "mildly displaced fractures" in the cervical spine. Dr. Stos ceased his chiropractic treatment of the C5-C6 region when he learned of the fractures shortly after his adjustment of plaintiff on January 22. Up to that point, he testified at his deposition, plaintiff was progressing well and all diagnostic objective tests were normal. He continued chiropractic treatment of her lower back until March 29, 2002.
For her part, Dr. Gelb states that at all relevant times, she was employed by Champion Medical Service as a family physician overseeing the physical therapy practice. On November 19, 2001, Dr. Stos and she first discussed a program of physical therapy for plaintiff. He asked her to evaluate the patient and oversee her physical therapy. She took a patient history, and was informed by plaintiff that the SVMC x-rays of October 7, 2001 had shown no fractures. She is not certain if she had the SVMC radiology report that day. She states that she also reviewed Dr. Stos's x-ray report. She does not customarily review the x-ray films, and does not recall whether Dr. Stos showed her the actual x-rays he had taken. Dr. Stos's report stated that the patient had a reversal of her lordotic curve; severe apparent cervical myalspasm; mild to moderate levoscolitis; narrow disc spaces at C5-C6 and severe subluxation at C5-C6 with rotational malposition of C2, C3, C4 and C5 vertebral bodies. Plaintiff complained of neck and back pain to Dr. Gelb whose physical examination that day revealed no signs of radiculitis or radiculopathy.
At paragraph 13 of her Affidavit dated October 4, 2007, Dr. Gelb stated she was not certain if she had the hospital radiology report of October 7, 2001; however, at her deposition of May 2, 2007, she states that she reviewed the report, but not the actual films, on November 19, 2001 when she first saw plaintiff (Deposition, page 71, line 15 to page 73, line 16). The Court is inclined to accept defendant Dr. Gelb's affidavit testimony in that it is consistent with plaintiff Tara Colao's testimony that St. Vincent's could not locate their x-ray and that it was lost. Further, defendant, Dr. Kuczabski was never made aware of the St. Vincent's x-ray report of October 12, 2001 until the taking of his deposition on April 13, 2007.
Based on her findings, Dr. Gelb recommended physical therapy, which included chiropractic manipulative therapy. She further states:
I did not prescribe any chiropractic therapy and the treatment plan was devised in conjunction with Dr. Stos. All chiropractic manipulative therapy would be prescribed and performed by Dr. Stos. The treatment plan for physical therapy which I was going to oversee [sic] and the chiropractic treatment plan was to be performed and overseen by Dr. Stos. The patient was to continue with Dr. Stos with respect to her chiropractic manipulative therapy.
Dr. Gelb continued to evaluate plaintiff periodically over the next few months. On December 19th, the patient's symptoms appeared to be lessening although a physical examination revealed evidence of locking of the lumbar facet joints. At that time, Dr. Gelb also had available the results of a nerve conductive study that Dr. Reali of Champion Medical Service had performed on December 6, 2001, and which found no evidence of a cervical radiculopathy or peripheral neuropathy. At that time, Dr. Gelb continued the same treatment plan, prescribed physical therapy and told plaintiff to return in one month for a follow-up evaluation.
Plaintiff did not return for evaluation until February 11, 2002, at which time Dr. Gelb states she first learned of the January 9, 2002 CT scan. After discussion with the physical therapist and Dr. Reali, she continued physical therapy, but recommended that chiropractic care not continue.
Dr. Gelb's patient record entry for that date states "I am recommending physical therapy for this patient . . . and chiropractic manipulative therapy." She states that is a typographical error and that the entry should have read ". . . and no chiropractic manipulative therapy at this time."
Dr. Gelb states that she discussed the matter that day with Dr. Stos who also knew of the CT scan results and told him that manipulation of the cervical spine was contraindicated because of the fracture. Following the February 11th evaluation by Dr. Gelb, plaintiff continued the prescribed physical therapy treatment, together with chiropractic manipulative therapy to her lower back.
Dr. Gelb last saw plaintiff for evaluation on March 11, 2002, at which time, she states, she learned for the first time that plaintiff had continued the chiropractic treatment to her lower back. Plaintiff reported continued improvement at that time, and continued physical therapy following this last evaluation by Dr. Gelb.
On his initial motion for summary judgment, Dr. Stos argued that he did not depart from acceptable standards of chiropractic care in his treatment of plaintiff, and that in any event, his action were not the proximate cause of plaintiff's injury. In doing so, he initially relied solely on his own expert opinion to support his contention. Only in reply, did he produce the expert affidavit of Dr. Jack Goodman, a board-certified neurosurgeon. Although defendant Stos's affidavit, in which he avers that his treatment of decedent did not deviate from acceptable chiropractic practice, is self-serving, it properly may be considered as the sole support of his motion ( Mackey v. Sangani, 238 AD2d 919 [4th Dept 1997]). The affidavit of Dr. Goodman, however, submitted only in reply, is untimely, and cannot be a basis for determining whether defendant Stos met his threshold burden of proof.
Nonetheless, on these facts, Dr. Stos's affirmation that he did not deviate from good and accepted chiropractic care sufficiently established his prima facie entitlement to summary judgment as a matter of law (CPLR 3212[b]; Mackey v Sangani, 238 AD2d 919 [4th Dep't 1997]).
Dr. Gelb similarly argued that she did not depart from acceptable standards of medical care, and that the physical therapy she recommended, which involved soft tissue therapy, could not have caused injury to plaintiff. In support, she presented the affidavit of an independent expert in her moving papers that sufficiently set forth the facts upon which his opinion was based and related them to his conclusion that defendant Gelb did not deviate from the proper standard of care.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ( see Zuckerman v. City of New York, 49 NY2d 557, 562, [1980]). Defendants Stos and Gelb having met that burden on the initial motion papers, the burden then shifted to plaintiff to establish that there was a material issue of fact on the issue precluding summary judgment (CPLR 3213[b]; Alvarez v Prospect Hosp, 68 NY2d 320).
In her opposition, however, plaintiff failed to raise a triable issue of fact relating to either the treatment or its causal connection to her injuries. As noted, it is the opinion of plaintiff's medical and chiropractic experts, that the incorrect diagnoses that permeated each defendant's medical and chiropractic care of plaintiff prior to May 2003 resulted in contraindicated treatment that included a delay in proper diagnosis and treatment and the implementation of chiropractic and physical therapy that exacerbated the existing condition, resulting in the need for extensive surgical correction. However, it was not enough for plaintiff's expert merely to assert in conclusory language his opinion that Drs. Stos and Gelb departed from accepted standards of care ( Witt v Agin, 112 AD2d 64 [1st Dep't 1985, aff'd 67 NY2d 919). Here, the opposing opinion did not adequately rebut the prima facie showing that these defendants, in properly relying on the available medical information, rendered treatment accordingly.
Therefore, this Court properly granted defendants' cross motions for summary judgment ( Winegard v New York University Med Cen, 64 NY2d 851).
Accordingly, it is
ORDERED the respective motions (Mot. Seqs Nos. 007 and 008) of defendants Kuczabski and Saint Vincent's Medical Center seeking to "renew and reargue" this Court's Order of February 11, 2008, each is denied, and it is further
ORDERED that the cross motion (Mot. Seq. No. 009) by plaintiff for reargument is denied.