Opinion
Index No. 805253/2018 Motion Seq. No. 017
09-14-2022
PAUL DANTZIG, Plaintiff, v. RICHARD L. MUELLER, M.D., and PRAMOD SANGHI, M.D., Defendant.
Unpublished Opinion
MOTION DATE 06/21/2022
DECISION + ORDER ON MOTION
HON. JOHN J. KELLEY J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 017) 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, and 379 were read on this motion to/for JUDGMENT - SUMMARY .
I. INTRODUCTION
In this action to recover damages for medical malpractice based on alleged departures from good and accepted practice and lack of informed consent, the defendant cardiologist Pramod Sanghi, M.D., moves pursuant to CPLR 3212 for summary judgment dismissing the complaint insofar as asserted against him. The plaintiff opposes the motion. The motion is granted, and the complaint is dismissed insofar as asserted against Sanghi.
The crux of the plaintiff's claims against Sanghi is that Sanghi failed to diagnose mitral insufficiency, failed to perform a proper stress test, failed correctly to read a coronary computed tomography (CT) scan, placed a stent in his heart despite being contraindicated by virtue of his rheumatoid arthritis, and inappropriately installed an improperly sized stent in any event. The plaintiff further alleged that Sanghi failed to obtain his informed consent for the procedure. In addition, he alleged that, as a consequence, he sustained scapholunate advanced collapse (SLAC)-type osteoarthritis of the wrist, necessitating two surgeries.
II. FACTUAL BACKGROUND
On February 15, 2018, the plaintiff presented to internist Omid Nikrouz, M.D., complaining of intermittent irregular heart palpitations. Dr. Nikrouz formulated a plan including blood laboratory testing, a referral for Holter-monitor heart-rhythm testing, and a stress electrocardiogram (EKG) to rule out coronary artery disease. Sanghi first saw the plaintiff on February 21, 2018, at which time the plaintiff reported that he had heart palpitations for the prior month, was suffering from fatigue while exercising, and evinced cyanotic, or blue-tinted hands. According to Sanghi, the plaintiff presented with palpitations, hyperlipidemia, premature ventricular contractions (PVCs), EKG abnormalities, including a prolonged QT wave, dizziness, chest pain, elevated levels of triglycerides and glucose in his blood, atherosclerotic heart disease without angina pectoris, aortic valve sclerosis, and mitral valve regurgitation. After the examination, Sanghi memorialized his impressions as "palpitations (cause? arrhythmia,? PVCs), PVCs (? Symptomatic), dizziness/blue hands (? transient cyanosis) and fatigue/decreased exercise tolerance (? cause)," and noted that the plaintiff refused to wear a Holter-monitor or agree to take a beta blocker to decrease his heart rate. On February 26, 2018, the defendant cardiologist Richard Mueller, M.D., who worked in the same practice as Sanghi, saw the plaintiff, and recommended an echocardiogram (ECG), a carotid doppler test, a stress ECG, and cardiac telemetry. According to Sanghi, the plaintiff again refused a beta blocker. The plaintiff did, however, undergo a stress ECG, which resulted in an "equivocally abnormal" finding, and showed a worsening of the baseline ST wave depression, which measured the interval between ventricular depolarization and repolarization.
On February 27, 2018, the plaintiff underwent an EKG with Mueller, who interpreted the result as showing a slightly prolonged QT wave interval, and advised the plaintiff that this finding carried a real, but low, risk of ventricular tachycardia and sudden death. On March 8, 2018, at Mueller's request, the plaintiff underwent a CT angiogram of his coronary arteries at Cardiology Diagnostic Associates/East River Medical Imaging. The test showed that the plaintiff presented with a left anterior descending (LAD) artery with multifocal low-density disease in the proximal and mid segments, with a focal stenosis, or constriction of blood flow, estimated at greater than 70% in the proximal segment, a condition that Mueller suspected was likely obstructive. Mueller's plan was to confirm the finding a fractional flow reserve analysis CT (FFR-CT). The plaintiff underwent this test on March 12, 2018, with the results confirming the presence of obstructive arterial disease in the proximal LAD artery.
According to Sanghi, the plaintiff consented to undergo cardiac catheterization, but expressed his desire that it be limited to balloon angioplasty or a coronary bypass, rather than submit to the placement of a stent. Mueller noted that he had repeated discussions with the plaintiff about why a stent was the best procedure and that he should go on a regimen of 12 months of the blood thinner Plavix. Thereafter, the plaintiff exchanged multiple text messages with both Mueller and Sanghi concerning the procedure.
On March 14, 2018, the plaintiff texted Sanghi as follows:
"Hi Pramod, I faxed the labs. Do you have any days available besides Friday? . . . If you are able to do the catherization through my wrist, it shouldn't be any problem driving. . . . But if I just have balloon angioplasty (I'm hesitant on the stent initially unless the blockage is really bad because it'll destroy my life style) it shouldn't be too bad."
The plaintiff followed that up by inquiring "[w]hy not balloon as long as you are in there"? Sanghi responded that he thought that the "best thing is to have the procedure on Friday [March 16, 2018] and we'll just plan on taking pictures only through the wrist. Then we can discuss the options later depending on what we see," later informing the plaintiff that that approach would require the plaintiff to stay in the hospital for a longer period of time. Later that date, the plaintiff informed Sanghi that he had experienced a little sternal discomfort for the previous 7 to 10 days, which he characterized as neither pain nor pressure, and was thus anxious to have the procedure completed. He conceded that he didn't know whether it was related to ischemia, but inquired as to whether another EKG or monitor would be useful, to which Sanghi responded that he didn't think such testing would help. Sanghi informed the plaintiff that, rather, it would be best simply to perform the angiogram later that week. The plaintiff agreed to schedule the balloon angioplasty, explaining that he wished to have
"just pictures and balloon if possible. If it would buy me 6-12 months, that would be great-hopefully the [drug] repatha will kick in by then. And if we can do it through the wrist would be great because I have no way of getting home without driving. Obviously, no versed or other sedatives."
Sanghi and Mueller expressly informed the plaintiff that they would place him on their schedule for angioplasty for March 16, 2018, but cautioned him that he should "keep in mind that if [they got] a suboptimal balloon result, then we will have to stent. It's dangerous leaving a suboptimal balloon result in the proximal L[eft] A[nterior] D[escending]" artery. The plaintiff responded that "[h]opefully the balloon with flatten the entire plaque and enlarge the lumen sufficiently." After the plaintiff expressed concern that his recent blood work and radiation put him at risk for additional blood work, Sanghi informed him on March 16, 2018 that NYU Langone Hospital, where the procedure was to be performed, required laboratory test results for blood no more than 30 days prior to the procedure. The plaintiff refused to undergo more blood testing at that juncture. The procedure thus was postponed until March 23, 2018.
The plaintiff and Sanghi had the following text exchange on March 19, 2018:
Plaintiff: "Pramod, does a stent prevent a heart attack or embolus from a ruptured plaque?
Sanghi: "Good question. Yes it does for an individual plaque, but the problem is people have multiple plaques, not all can be seen angiographically. So stenting in general doesn't prevent plaque rupture.
"Also stent thrombosis is an added risk when a stent is placed. It's a low risk but we still see it.
Plaintiff: "This is why I'm leaning toward balloon if possible. I started repatha last week since Crestor is not lowering my I[ow] d[ensity] l[ipids] and if the balloon can enlarge my lumen adequately and I can buy 6-12 months, maybe I can reverse some of the damage with repatha if it lowers my Idl to 20-30 or less. Theoretically, I think it is my best hope for prolonging my life. Let me know what you think. I'm hoping the cath on Friday will make this possible.
Sanghi: "It's a good strategy in general however the proximal LAD is a bit tricky. Risk of restenosis is high after a balloon result and if it happens in the proximal
LAD it can be life threatening. Cardiologist[s] typically don't recommend Balloon only in the proximal LAD.
Plaintiff: "I'll go by your recommendation but hopefully on visual inspection, it won't look as bad as the ct scan and the ffr"(emphasis added). On March 20, 2018, the plaintiff texted the following to Sanghi:
"Hi Pramod, I took a dose of repatha 6 days ago and my Idl yesterday was an incredible 10. This is most likely the etiology of my problem. I'm looking forward to the cardiac catherization Friday to see the results especially since the ekg was normal yesterday. I know it's almost impossible to reverse c[oronary] a[rtery] d[isease], but I don't have any extrinsic factors and so maybe I can reverse it enough with my lifestyle and repatha to have a normal life. So I'm hoping ballooning might be enough to open the lumen sufficiently."
After the plaintiff and Sanghi exchanged more than 20 texts, in which the plaintiff reiterated that he did not wish to undergo any more blood testing, and Sanghi reiterated that the hospital required them, the plaintiff suggested that Sanghi "go to another hospital," to which Sanghi inquired if the plaintiff still wished him to perform the procedure, and sympathized with the plaintiff's frustration in this regard. Finally, at about 7:00 p.m. on March 20, 2018, the plaintiff agreed to submit to further blood testing; on March 22, 2018, the plaintiff texted his blood test results to Sanghi.
Later on March 22, 2018, the plaintiff requested that Sanghi forward him any consent forms that he needed to sign, to which Sanghi responded that the hospital itself maintained the forms and that the plaintiff should request them when a hospital representative called him later in the day. Although the plaintiff does not appear ultimately to have executed a signed consent form, he testified at his deposition that, if the arterial blockage was "bad," he would have consented to the placement of a stent.
On March 23, 2018, Dr. Sanghi performed the catheterization at NYU Langone. The hospital records memorialized that the indications for the procedure included an abnormal stress test revealing 1.5-mm ST wave depressions in EKG leads II and III, and arteriovenous fistula, along with episodes of dizziness and PVCs that were revealed by the EKG, and CT angiography scan that revealed obstructive LAD disease. In the course of the procedure, Sanghi concluded that the plaintiff's arterial obstruction could not adequately be addressed by balloon angioplasty, and consequently placed a stent that extended over both the mid and proximal segments of the LAD. The chair of NYU Langone's catheter laboratory, Dr. Jim Slater, was present during the procedure, which was video recorded, and agreed with Sanghi that stenting was necessary.
The plaintiff reported on March 24, 2018 at 6:48 a.m. that he had post-operative bleeding in the catheterization laboratory that was not stabilized by the nurses at the hospital before he was discharged on March 24, 2018. After discharge later that date, the plaintiff then spoke with an interventionalist from NYU Langone, who referred him to White Plains Hospital, which was located near the plaintiff's home, for further evaluation, due to a concern for possible radial artery occlusion. The plaintiff presented to White Plains Hospital with complaints of right-hand pain and arm swelling. He also communicated these complaints to Sanghi via text messaging, and continued to text both Sanghi and Mueller during the remainder of that day. A physical examination at White Plains Hospital showed that the plaintiff had strong bilateral pulses and no range-of-motion limitations on his right side. Although there was redness and swelling on the right radial area, the plaintiff was able to open and close his right hand and had normal sensation, with most of the pain limited to the area over the radial artery. An emergency department physician at White Plains Hospital spoke with Sanghi, who confirmed that radial artery occlusion was a possible complication of the procedure.
Staff at White Plains Hospital took an ultrasound scan of the plaintiff's right upper extremity, and the resulting images revealed the presence of a pseudo-aneurysm, which is a breach in the wall of a blood vessel that causes blood to leak through the wall, but is contained by the adventitia or surrounding perivascular soft tissue. Physicians there recommended a thrombin injection into the pseudo-aneurysm or placement of a TR band-type compression device, but the plaintiff refused that treatment. While Plains Hospital physicians then recommended that the plaintiff be transferred to NYU Langone for a vascular surgery evaluation. The plaintiff was discharged from White Plains Hospital later on March 24, 2018 against medical advice, but refused to sign any paperwork indicating that he had done so.
In the early evening of March 24, 2018, the plaintiff presented to the emergency room at NYU Langone, reporting that he had undergone a procedure on the previous day that had been performed via right radial artery access, but that the TR band that had been placed immediately after the completion of the procedure had been removed after eight hours due to issues with post-operative bleeding. Emergency room staff noted that the area was a little swollen, but not bleeding, and that there had been no lump the previous day, despite the fact that the plaintiff had noticed a pulsatile mass. According to the defendants, the plaintiff reported pain at the surgical site, but no weakness or numbness in the hand, denied that he had experienced any cardiac symptoms, and confirmed that he had been taking his prescribed medications. A bedside ultrasound revealed a 2.1-cm pseudo-aneurysm, with small neck and pulsatile flow, while, according to Sanghi, the remainder of the physical exam was benign. The TR band was inflated to 14 cubic centimeters (cc) or air for one hour so as to occlude the radial artery with collateral flow from the ulnar. Physicians at NYU Langone formulated a plan involving the maintenance of a pulse oximeter on the plaintiff's index finger and that, if there were a loss of pulsatility in the plaintiff's heart waveform, a physician was to be notified immediately and deflate the TR band by 1 to 2 cc to allow for hemostasis within one hour and maintain it for four to five hours, with reassessment to ascertain whether a thrombin injection or vascular surgery would be indicated.
The plaintiff underwent a repeat ultrasound scan later on the night of March 24, 2018, after which physicians noted a patent radial artery flow that nonetheless was "sluggish," with either no flow or a minimal flow into the pseudo-aneurysm. Hospital records indicated that the plaintiff was neuro-vascularly intact, albeit with significant bruising and hematoma at the subject site. Pressure dressing with a tegaderm film dressing was placed at the site, and the plaintiff was given an Ace bandage to wrap the area in a manner that was not excessively tight. The plaintiff was discharged to his home in the early morning hours of March 25, 2018.
When the plaintiff returned to NYU Langone later on March 25, 2018, an ultrasound scan reflected that there was no blood flow into the pseudo-aneurysm, which appeared to be partially thrombosed. The hospital records reported that there was clear color-flow distal and proximal to the pseudo-aneurysm, with possible occlusion of the site. On compression of the ulnar artery, distal radial artery flow was still intact that, according to Sanghi, indicated either some patency to the vessel or intraosseous collateralization. As Sanghi described it, the pseudo-aneurysm appeared closed and likely remained with adequate distal flow, although there may have been an occlusion of the radial artery. The plan developed at NYU Langone was to manage the condition conservatively, and the plaintiff again was discharged later on that date.
On March 26, 2018, at 7:53 a.m., the plaintiff texted Mueller that "all of it might have been avoided if the negligent nurses" at NYU Langone had checked his arm after the procedure, inasmuch as he had bled for three to four hours, and had notified Sanghi thereof. Sanghi texted the plaintiff that he had not been advised by the nurses about any condition of his arm. Mueller himself responded that both he and Sanghi did everything correctly, but that, had there been proper compression, the condition would have been avoided. The plaintiff texted that "[n]o one at NYU had any idea what to do. But the residents were super---very knowledgeable."
On March 30, 2018, the plaintiff was seen by vascular surgeon Alfio Carroccio, M.D., at Lenox Hill Hospital, who diagnosed him with right radial artery occlusion that likely was due to compression of the artery by a hematoma. Dr. Carroccio performed an evacuation of the hematoma, by thrombectomy via arm incision, with the use of Fogarty embolectomy, along with a patch angioplasty repair of the radial artery. At an April 3, 2018 follow-up visit, Dr. Carroccio, noted that the radial artery was widely patent with duplex.
On April 12, 2018, the plaintiff texted Sanghi, complaining that "I'm so upset at the stent. Is there any way it can be removed"? Later that day, he texted as follows: "When I agreed to the cath, I specifically said that you could explore and maybe try a balloon but I never agreed to the stent until I was under incredible duress." He continued by imploring the defendants to "[p]lease find someone who knows how to remove it. I don't want to live with a stent and take those horrible drugs the rest of my life. It should never have been put in." "You should never have scared me while I was laying on the table in the cath lab." "Find someone who knows how to remove it." Sanghi responded that
"there is no way to remove the stent. It's never been done. If you remember, I did the balloon first, but unfortunately the vessel immediately recoiled back to its original state. I had Dr. Slater, the cath lab director take a look and he agreed that there was no choice but to place a stent.
"The intimal layer of the vessel will grow over the stent in 1 year. At that point, the stent won't be in contact with the blood.
"I know there is a foreign body there but realize that the blood flow in your heart is completely normal now. How is your hand now?"
The plaintiff reported that his hand was "[t]errible," and complained that Sanghi's partner had been messaging "nasty things," for which Sanghi apologized, and noted that he was no longer worried about the plaintiff's heart because he achieved such a good result with the stent.
According to Sanghi, in a follow-up visit on April 17, 2018, the plaintiff's pain and neurologic deficits had resolved, and the condition of paresthesia had significantly improved.
On April 22, 2018, medical staff at White Plains Hospital conducted an EKG, and reported the results as normal. On April 30, 2018, cardiologist Michael Silver, M.D., examined the plaintiff at Westchester Medical Group. In his notes, Dr. Silver memorialized the plaintiff's history, including an 80% plaque blockage of the proximal LAD artery, and that the stent placed by Sanghi covered both the proximal and distal LAD arteries. Dr. Silver further noted that the plaintiff had normal left ventricular function, that a cardiovascular exam was normal, and that the plaintiff's coronary artery disease had improved following the placement of the stent, commenting that he was reassured that the procedure had restored the coronary flow. At the time, the plaintiff was taking the anticoagulant Brilinta and aspirin, and exhibited dyspnea, which Dr. Silver believed was related to the Brilinta. Dr. Silver offered to switch the plaintiff's medications, but he declined. On June 27, 2018, the plaintiff underwent a stress ECG at New York Presbyterian Hospital, which revealed a good effort tolerance and a blunted heart rate response to exercise. In October 2018, the plaintiff came under the care of cardiologist Judith Z. Goldfinger, M.D., who conducted an examination and performed ECGs, which, according to Sanghi, revealed minimal mitral regurgitation at rest that was not clinically significant and did not reflect any problem with the stent. On October 30, 2018, the plaintiff's cardiac catheterization findings were reviewed by cardiologist Joseph Sweeney, M.D., who noted that the stent placement procedure "was reasonable to extend the stent to cover both the major stenosis in the mid LAD plus non-obstructive stenosis in the proximal LAD." During the course of the plaintiff's treatment by Dr. Goldfinger, he reported fatigue, but Dr. Goldfinger's records indicate that she concluded that the fatigue was not cardiac in nature, but was due to sleep apnea.
Referring to Dr. Goldfinger's office records for December 17, 2019, Sanghi noted that the plaintiff ran the New York City Marathon in November 2019, approximately one year after he began treating with Dr. Goldfinger, and that he testified at his August 5, 2021 deposition that he was running three miles each day, weather permitting, and had done so for several years.
On August 17, 2021, the plaintiff commenced an action in the Supreme Court, New York County, against the City of New York and a private landowner (the trip-and-fall action), alleging that they negligently maintained a sidewalk abutting 636 Broadway in Manhattan, and that, as a proximate result of that negligence, he slipped or tripped and fell on November 7, 2020 at that location. In the plaintiff's bill of particulars in the trip-and-fall action, he alleged that, as a consequence of the accident, he sustained a tear of the scapholunate ligament, joint effusions, aggravation of SLAC formation, and aggravation of his rheumatoid arthritis, necessitating two surgeries, and that both the accident and surgery caused pain, limitations of motion and function of body parts, and interference with all of his economic and social activities. Records referable to the plaintiff's treatment for the injuries that he sustained in that accident reflect that he underwent a left wrist MRI on December 22, 2020, revealing osteoarthritis and a tear of the left scapholunate interosseous ligament. The plaintiff was evaluated by orthopedist Mark Pruzansky, M.D., on December 31, 2020, and reported his history, including the fall that caused his wrist injury. Dr. Pruzanky's assessment was that the plaintiff sustained a ligament tear and a SLAC of his left wrist. The plaintiff thereafter presented his wrist complaints to orthopedist Daniel Polatsch, M.D., and orthopedic surgeon Amanda Walsh, M.D., the latter of whom performed two surgeries on the plaintiff's left wrist.
On May 3, 2021, the plaintiff's blood was tested for the presence and levels of rheumatoid factor and antinuclear antibodies, according to Sanghi, the results were within the normal reference range, thus indicating that, contrary to the plaintiff's contention, he did not suffer from rheumatoid arthritis.
III. THE PLAINTIFF'S ALLEGATIONS
In his complaint, the plaintiff simply asserted that the defendants departed from good and accepted medical practice in treating him for some unspecified condition between January 1, 2018 and May 30, 2018, and that they failed to obtain his fully informed consent to undertake the unspecified procedure or procedures that they ultimately performed on him. In his bill of particulars as to Sanghi, the plaintiff asserted that Sanghi departed from good and accepted medical practice in failing to diagnose and treat the cause of the plaintiff's coronary artery disease or to diagnose mitral insufficiency, in failing to offer and explain treatment alternative and to offer medical treatment, in failing to perform proper stress tests and interpret them correctly, and in failing to be knowledgeable of the COURAGE and ORBITA cardiovascular outcomes trials that suggested the prevalence of non-therapeutic outcomes for stenting procedures. The plaintiff further alleged that Sanghi failed properly to diagnose angina, correctly read a coronary CT scan, and double check the site of the 70% coronary plaque buildup in the LAD artery prior to catheterization.
The plaintiff also averred that Sanghi committed malpractice in failing to stabilize the bleeding of his radial artery in the catheterization laboratory and the recovery room, and in failing to conduct blood flow studies. He asserted that Sanghi did not install a properly sized stent, did not properly install the stent, that the placement of a stent was not indicated in the first instance in any event, and that Sanghi failed to follow the applicable precautions and recognize the contraindications for a stent. The plaintiff further faulted Sanghi for failing to write a proper operative note, failing to stabilize him prior to his discharge, and failing to examine and treat him in the emergency room on March 24, 2018. The plaintiff also claimed that Sanghi was negligent in failing to follow proper guidelines for the use of a TR compression band, in failing to provide prompt and proper treatment for the plaintiff's damaged radial artery, failing properly to provide painkillers, and failing to seek help from the physician in charge of the catheterization lab. In light of the plaintiff's allegation that he did not have angina, did not have a stress ECG result reflecting a high risk for infarct, and did not have an EKG result reflecting a high risk for infarct, he asserted that Sanghi did not properly diagnose him with coronary artery disease, which should have been known prior to stenting, thus rendering the stenting contraindicated.
The plaintiff further alleged that Sanghi failed to obtain a proper consent form and failed to heed his request not to have a stent placed and not to be sedated during the procedure, which allegedly caused a pseudo-aneurysm of the radial artery.
IV. THE SUMMARY JUDGMENT MOTION
In support of his summary judgment motion, Sanghi submitted the pleadings, the plaintiff's bill of particulars, the transcripts of the parties' depositions, medical records from numerous treating and examining physicians and hospitals, and the expert affirmation of cardiologist and internist Jeffrey Moses, M.D. Dr. Moses averred that, in 40 years of medical practice, he had served as an attending physician, chief of interventional cardiology, director of the catheterization lab, director for the center for interventional vascular therapy, director of interventional services, and director of advanced cardiac interventions at major metropolitan hospitals and that, as part of his practice, he regularly evaluated patients for cardiac catheterizations and stent placements, and performed those procedures on numerous patients.
Dr. Moses opined that Sanghi did not depart from good and accepted medical practice in his diagnosis and treatment of the plaintiff, and that none of Sanghi's conduct caused or contributed to the plaintiff's injuries.
As Dr. Moses explained it, a cardiac stent is a tube inserted into a blocked coronary passageway such as a vein or artery to reduce the narrowing of the passageway and keep it open, by restoring the flow of blood. He opined that, "[w]ithout a stent, there is a risk of closure, a risk of heart attack, and a risk of greater than 50% re-stenosis." He further explained that the left anterior descending artery, or LAD artery, is a coronary artery that supplies the heart muscle with blood, and is considered to be the most important, and usually is the largest, of the three main coronary arteries. Dr. Moses averred that the LAD artery "typically supplies over half of the heart muscle with blood," and "[f]or this reason, a major blockage of the artery is often known as the Widow-maker." He stated that the LAD artery gives rise to septal branches and diagonal branches, explaining that the septal branches of the LAD artery supply the septum, that is, the wall between the left and right main pumping chambers of the heart, while the diagonal branches of the LAD artery supply blood from the front to the sidewall of the heart. Dr. Moses asserted that significant blockages of the LAD artery can be dangerous simply because that artery supplies such a large territory of the heart. He noted that, if LAD artery disease is determined to be significant, a stent is often the preferred method employed to relieve blockage associated with such disease.
Dr. Moses went on to aver that, if a blockage is not adequately treated, there is a significant risk of death and, inasmuch as there is no outcome worse than death, there are no absolute contraindications to the placement of a stent. Contrary to the plaintiff's contention, Dr. Moses opined that rheumatoid arthritis is not a contraindication to stent placement, and he noted that, in any event, there was nothing in the medical records or the court records of this action, other than the plaintiff's own testimony, that the plaintiff suffered from rheumatoid arthritis. Dr. Moses further noted that the rheumatoid factor that was tested in a blood sample that was collected from the plaintiff in May 2021 was within normal limits. He unambiguously concluded that the placement of a stent in the plaintiff's LAD artery was "absolutely indicated and appropriate and there were no contraindications." Dr. Moses opined that, contrary to the plaintiff's allegations, his stress test was abnormal and showed worsening of baseline ST wave depression, while his EKG revealed a prolonged QT wave interval. He further opined that the CT angiogram of the plaintiff's coronary arteries showed that the LAD artery evinced multifocal low-density disease in the proximal and middle segments, with a focal stenosis estimated at greater than 70% in the proximal segment, and that this stenosis was likely obstructive. Dr. Moses asserted that the CT-FFR analysis confirmed the presence of obstructive disease in the proximal LAD artery, reflecting a very low fractional flow reserve of 61%. He concluded that these results "provide clear indications for revascularization by placement of a stent," while the LAD lesion "was too long and too diffuse for a balloon angioplasty."
Dr. Moses further opined that Sanghi properly performed the cardiac catheterization and stent placement in accordance with the standard of care, as the stent "was placed properly to cover the lesions and was accomplished through the wrist, the preferred method." With respect to the size of the stent, Dr. Moses concluded that
"the 38 mm stent was entirely appropriate and covered the plaque. There were 2 lesions, one before the diagonal and one after. The single stent placed by Dr. Sanghi covered both lesions. The stent did not cause any injury or damage to the diagonal artery or mitral valve."
In connection with the plaintiff's lack of informed consent cause of action, Dr. Moses concluded that "the text messages between Dr. Sanghi and the plaintiff, and Dr. Mueller and the plaintiff, provide proper informed consent for the procedure and meet the standard of care." He noted that the text messages included discussions about risks associated with the findings of the CT angiography scan and CT-FFR tests, and included discussions that the extent of plaque-caused stenosis "was a potential killer." Dr. Moses further noted that the texts discussed the possible treatments and alternative treatments, and risks and benefits of those treatments, including the need for a catheterization, and the possibilities inherent in performing a balloon angiography, along with the risk of a sub-optimal result if that procedure were employed, such as the incidence of re-stenosis and need for a repeat procedure that would require stenting in any event. Dr. Moses also pointed out that, in the text exchange, Sanghi and Mueller expressly informed the plaintiff that if there were a sub-optimal result from a balloon angioplasty, there would be a distinct possibility that the plaintiff would require bypass/open heart surgery, with the concomitant need for admission into a hospital's intensive care unit, and the presence of significant thoracic pain that might require stent placement in any event, augmented by a 12-month regimen of the drug Plavix. As Dr. Moses correctly characterized the exchange, after several days of texting between the parties about the risks and alternatives associated with the various treatment options, the plaintiff ultimately texted Sanghi that he would defer to Sanghi's recommendation that a stent be placed.
Dr. Moses found no fault with the post-operative care rendered by Sanghi to the plaintiff. He noted that there was nothing in the NYU Langone hospital records indicating any bleeding at the time that the plaintiff was discharged from the hospital following the placement of the stent, or that the plaintiff made any attempt to contact Sanghi in the immediate post-operative period. He further noted that, when the plaintiff did communicate with Sanghi after his discharge, Sanghi provided appropriate instructions that the plaintiff should be seen at the hospital by a vascular physician, inasmuch as Sanghi, as an interventional cardiologist, would not be expected to treat a radial complication such as pseudo-aneurysm, which was, according to Dr. Moses, a known and accepted risks of the stenting procedure. In addition, Dr. Moses asserted that, inasmuch as there was nothing in the records indicating that Sanghi made any treatment recommendations for the use of a TR band, there is no basis for any claim by the plaintiff that Sanghi committed malpractice with respect to the duration of time over which the TR band was applied or the pressure to which the TR band was inflated. As Dr. Moses explained it, the records from NYU Langone indicated that Sanghi spoke with emergency room personnel, and specifically requested interventional radiology and vascular consults be involved in the plaintiff's care, as a pseudo-aneurysm is a radial complication which is generally treated by a vascular physician and, thus, outside of the scope of treatment that may be rendered by an interventional cardiologist. In any event, Dr. Moses opined that the application of the TR compression band at NYU Langone on March 24, 2018, including the extent of pressure and duration, was appropriate and within the standard of care.
Dr. Moses noted that the plaintiff elected to undergo surgical repair of the pseudo-aneurysm, as opposed to conservative treatment. He explained that, following that surgery, the plaintiff's blood flow was restored and the complaints about his right wrist resolved shortly thereafter, with no further complaints. He opined that the mere fact that the plaintiff suffered from a radial complication such as a pseudo-aneurysm, standing alone, is not proof of any negligence or malpractice, and that the procedure to correct it was performed properly and within the standard of care.
Dr. Moses expressly disagreed with the plaintiff's contentions that, as a result of the placement of the stent, he suffered from nocturnal hypertension, fatigue, mitral regurgitation, or injury to the diagonal branch of the LAD artery. As he explained it,
"[a]ll of the objective cardiac testing on the plaintiff taken following the placement of the stent indicate that blood flow was restored to the LAD and heart and that all stress tests have essentially been negative. It is my opinion, within a reasonable degree of medical certainty, that the plaintiff had a good outcome in terms of his heart following the placement of the stent. Following the stent placement, he ran the NYC marathon and has continued to run several miles daily weather permitting. There is no objective evidence of any injury to the diagonal artery or that the plaintiff suffers from nocturnal hypertension. Additionally, with respect to mitral regurgitation, the records indicate that the plaintiff had mitral regurgitation as of the first visit with Dr. Sanghi on February 21, 2018, before the subject placement of the stent. The mitral regurgitation on
echocardiogram is trivial, is of no medical consequence, and is longstanding. As to the allegations related to fatigue, not only did the plaintiff have fatigue that predated the placement of the stent, his treating physicians believed it was related to sleep apnea and was not cardiac related."
Dr. Moses characterized as "medically incorrect" the plaintiff's claim that his wrist fracture and SLAC-type wrist osteoarthritis were related to Sanghi's treatment, concluding that there was no causal connection between the SLAC tear and Sanghi's placement of a "drug-eluding" stent. In this regard, Dr. Moses referred to the records from the plaintiff's own treating orthopedists, as well as his pleadings in his trip-and-fall action against the City, and concluded that any tear or resulting SLAC-wrist syndrome was a result of that accident. As he explained it,
"[i]t is well known in the medical community that a SLAC wrist, and more specifically, the findings as reported on the MRI following plaintiff's fall, generally occur when the scapholunate ligament is torn by trauma and is not associated with rheumatoid arthritis, "(emphasis added), particularly in light of the fact that the May 3, 2021 rheumatoid factor and antinuclear antibody tests were in the normal reference range.
In opposition to Sanghi's motion, the plaintiff relied upon the documents that Sanghi submitted. Instead of submitting an expert affirmation or affidavit from a cardiologist, an interventional cardiologist, a cardiothoracic surgeon, or a cardiovascular specialist, he submitted only his own unsworn, unnotarized affirmation. In that affirmation, the plaintiff asserted that the "defendants' motion is defective, does not conform to the rules of evidence and lacks a total understanding of medicine." He asserted that "Dr. Moses is not capable of making [the] conclusion" that Sanghi comported with all applicable standards of care, as "[h]e has never met the plaintiff, never taken a proper history, never performed a physical exam and did not have access to all his laboratory tests and x rays."
The plaintiff disagreed with Dr. Moses's conclusion that "the stent was absolutely necessary and there were no contraindications," opining that
"[t]his is a total lack of knowledge of medicine. There are 3 indications for a stent-angina, diabetes, and a total occlusion of an artery. The plaintiff had none of these! Attorney Brady also stated that Dr. Moses said the stent can prevent
heart attacks. This is absolutely untrue! Stents can not [sic] prevent heart attacks."
The plaintiff also characterized Dr. Moses's opinion that the stent was not contraindicated as evincing a "total lack of medical knowledge," as the stent was coated with the immunosuppressant drug Everolimus, "which has a profound effect on rheumatoid arthritis and will cause a marked flare."
The plaintiff then asserted that he "will present expert testimony at trial to corroborate all these statements" (emphasis added).
In addition, the plaintiff characterized as "false" Dr. Moses's conclusion that the blockage of the LAD artery was so large that it required a stent measuring 38 mm in length. He averred that this conclusion "cannot be corroborated," as the "plaque was 3mm. Period!" He further asserted that Sanghi "lied on the operative report on the size and extent of the plaque," and that Sanghi should have known that fact, but didn't, as "he failed to take a proper history and physical exam and keep proper records."
In response to Dr. Moses's opinion that there were "no absolute contraindications to placement of a stent," the plaintiff asserted that "[t]his is an incredibly ignorant statement!" He also characterized, as "an incredibly ignorant statement" and "total lack of understanding of current medical literature," Dr. Moses's opinion that rheumatoid arthritis was not a contraindication to stent placement. He expressly disagreed with Dr. Moses's conclusions that his stress ECG and EKG tests were ever abnormal, asserting that he never evinced a long QT wave interval, that he never was in any distress, and was never close to a heart attack or death.
According to the plaintiff, Sanghi, in placing the stent, "jailed" the diagonal branch of the LAD artery, "which is a serious placement with a 40% mortality. He should have known better. He damaged the diagonal artery resulting in mitral insufficiency and nocturnal hypertension."
The plaintiff further averred that, "[w]hen a foreign object is implanted there has to be written informed consent. The plaintiff never signed an informed consent and the one placed on the chart showed a forged signature of the plaintiff."
In addition, the plaintiff challenged Dr. Moses's conclusion that his post-operative care was appropriate, asserting that Sanghi "caused the pseudoaneurysm by perforating the plaintiff's radial artery 6 times." He continued that,
"[w]hen the plaintiff was suffering in incredible pain in the NYU the day after the stent, Pramod Sanghi refused to come to NYU to help him but told the cardiac fellow to fill theTR band to 14 cc of air and leave it on for 8 hours to stop the bleeding. Dr Moses agreed with this treatment. Guidelines for a TR band include much less air and to leave it on for no more than 1 hour and loosen it every 15 minutes. Neither Pramod Sanghi or [sic] Dr Moses had no [sic] idea how to use a TR band properly resulting in permanent damage to the plaintiff's right radial artery which was never repaired."
The plaintiff further challenged Dr. Moses's conclusion that there was no evidence of mitral insufficiency and nocturnal hypertension, again arguing that the conclusion "shows a total lack of medical knowledge and proper access to records which are in their possession." According to the plaintiff, an ECG taken one week after the placement of the stent and a phonocardiogram take one year after the placement both showed severe mitral insufficiency, while blood pressure records from the plaintiff's five-day hospitalization in November 2018 showed severe nocturnal hypertension.
Additionally, the plaintiff contended that the SLAC-type wrist injury that he sustained was directly connected to the 2018 placement of the drug-eluding stent, that his wrist injury did not occur as a consequence of the November 7, 2020.slip-and-fall accident, and that any contrary conclusion
"is wrong and again shows an ignorance of medical knowledge. The plaintiff developed a marked exacerbation of his rheumatoid arthritis 8 months before the fall. This was proven by x rays and mri which showed the scapholunate advanced collapse. The plaintiff has been to 6 rheumatologists, radiologists and orthopedic surgeons who will corroborate this at trial. Also, the plaintiff has a positive ANA, solid pattern, which is indicative of idiopathic juvenile arthritis, rheumatoid type"(emphasis added).
A. SUMMARY JUDGMENT STANDARDS
It is well settled that the movant on 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" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] [citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions (see CPLR 3212). The facts must be viewed in the light most favorable to the non-moving party (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). In other words, "[i]n determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J.C. Duggan, Inc., 180 A.D.2d 579, 580 [1st Dept 1992]). Once the movant meets his burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact (see Vega v Restani Constr. Corp., 18 N.Y.3d at 503). A movant's failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.; Medina v Fischer Mills Condo Assn., 181 A.D.3d 448, 449 [1st Dept 2020]).
"The drastic remedy of summary judgment, which deprives a party of his [or her] day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable'" (De Paris v Women's Natl. Republican Club, Inc., 148 A.D.3d 401, 403-404 [1st Dept 2017]; see Bronx-Lebanon Hosp. Ctr. v Mount Eden Ctr., 161 A.D.2d 480, 480 [1st Dept 1990]). Thus, a moving defendant does not meet its burden of affirmatively establishing entitlement to judgment as a matter of law merely by pointing to gaps in the plaintiff's case. It must affirmatively demonstrate the merit of its defense (see Koulermos v A.O. Smith Water Prods., 137 A.D.3d 575, 576 [1st Dept 2016]; Katz v United Synagogue of Conservative Judaism, 135 A.D.3d 458, 462 [1st Dept 2016]).
B. MEDICAL MALPRACTICE BASED ON DEPARTURE FROM ACCEPTED PRACTICE
"To sustain a cause of action for medical malpractice, a plaintiff must prove two essential elements: (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of plaintiff's injury" (Frye v Montefiore Med. Ctr., 70 A.D.3d 15, 24 [1st Dept 2009]; see Roques v Noble, 73 A.D.3d 204, 206 [1st Dept 2010]; Elias v Bash, 54 A.D.3d 354, 357 [2d Dept 2008]; DeFilippo v New York Downtown Hosp., 10 A.D.3d 521, 522 [1st Dept 2004]). Where a physician fails properly to diagnose or improperly diagnoses a patient's condition, thus providing less than optimal treatment or delaying appropriate treatment, thus proximately causing injury, he or she will be deemed to have departed from good and accepted medical practice (see Zabary v North Shore Hosp. in Plainview, 190 A.D.3d 790, 795 [2d Dept 2021]; see Lewis v Rutkovsky, 153 A.D.3d 450, 451 [1st Dept 2017]; Monzon v Chiaramonte, 140 A.D.3d 1126, 1128 [2d Dept 2016] ["(c)ases . . . which allege medical malpractice for failure to diagnose a condition . . . pertain to the level or standard of care expected of a physician in the community"]; O'Sullivan v Presbyterian Hosp. at Columbia Presbyterian Medical Ctr., 217 A.D.2d 98, 101 [1st Dept 1995]).
A defendant physician moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by establishing the absence of a triable issue of fact as to his or her alleged departure from accepted standards of medical practice (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Frye v Montefiore Med. Ctr., 70 A.D.3d at 24) or by establishing that the plaintiff was not injured by such treatment (see McGuigan v Centereach Mgt. Group, Inc., 94 A.D.3d 955 [2d Dept 2012]; Sharp v Weber, 77 A.D.3d 812 [2d Dept 2010]; see generally Stukas v Streiter, 83 A.D.3d 18 [2d Dept 2011]).
To satisfy the burden, a defendant must present expert opinion testimony that is supported by the facts in the record, addresses the essential allegations in the complaint or the bill of particulars, and is detailed, specific, and factual in nature (see Roques v Noble, 73 A.D.3d at 206; Joyner-Pack v. Sykes, 54 A.D.3d 727, 729 [2d Dept 2008]; Koi Hou Chan v Yeung, 66 A.D.3d 642 [2d Dept 2009]; Jones v Ricciardelli, 40 A.D.3d 935 [2d Dept 2007]). If the expert's opinion is not based on facts in the record, the facts must be personally known to the expert and, in any event, the opinion of a defendant's expert should specify "in what way" the patient's treatment was proper and "elucidate the standard of care" (Ocasio-Gary v Lawrence Hospital, 69 A.D.3d 403, 404 [1st Dept 2010]). Stated another way, the defendant's expert's opinion must "explain 'what defendant did and why'" (id., quoting Wasserman v Carella, 307 A.D.2d 225, 226, [1st Dept 2003]). Furthermore, to satisfy his or her burden on a motion for summary judgment, a defendant must address and rebut specific allegations of malpractice set forth in the plaintiff's bill of particulars (see Wall v Flushing Hosp. Med. Ctr., 78 A.D.3d 1043 [2d Dept 2010]; Grant v Hudson Val. Hosp. Ctr., 55 A.D.3d 874 [2d Dept 2008]; Terranova v Finklea, 45 A.D.3d 572 [2d Dept 2007]).
Once satisfied by the defendant, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting an expert's affidavit or affirmation attesting to a departure from accepted medical practice and opining that the defendant's acts or omissions were a competent producing cause of the plaintiff's injuries (see Roques v Noble, 73 A.D.3d at 207; Landry v Jakubowitz, 68 A.D.3d 728 [2d Dept 2009]; Luu v Paskowski, 57 A.D.3d 856 [2d Dept 2008]). Thus, to defeat a defendant's prima facie showing of entitlement to judgment as a matter of law, a plaintiff must produce expert testimony regarding specific acts of malpractice, and not just testimony that contains "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice" (Alvarez v Prospect Hosp., 68 N.Y.2d at 325; see Frye v Montefiore Med. Ctr., 70 A.D.3d at 24). In most instances, the opinion of a qualified expert that the plaintiff's injuries resulted from a deviation from relevant industry or medical standards is sufficient to preclude an award of summary judgment in a defendant's favor (see Murphy v Conner, 84 N.Y.2d 969, 972 [1994]; Frye v Montefiore Med. Ctr., 70 A.D.3d at 24). Where the expert's "ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to withstand summary judgment" (Diaz v New York Downtown Hosp., 99 N.Y.2d 542, 544 [2002]; see Frye v Montefiore Med. Ctr., 70 A.D.3d at 24).
"'Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause'" (McAlwee v Westchester Health Assoc., PLLC, 163 A.D.3d 549, 551 [2d Dept 2018], quoting Burns v Goyal, 145 A.D.3d 952, 954 [2d Dept 2016]). Thus, where a moving defendant in a medical malpractice action makes a prima facie showing that he or she did not depart from good and accepted practice, or that the treatment rendered to the plaintiff did not cause or contributed to the plaintiff's injuries, the plaintiff, to defeat summary judgment, must submit an expert affirmation or affidavit in opposition; a plaintiff's failure to submit such an expert affirmation or affidavit under such circumstances requires the court to award summary judgment to the moving defendant (see Benedetto v Tannenbaum, 186 A.D.3d 1596, 1598 [2d Dept 2020]; Bethune v Monhian, 168 A.D.3d 902, 903 [2d Dept 2019]; Koster v Davenport, 142 A.D.3d 966, 969 [2d Dept 2016]; Whitnum v Plastic & Reconstructive Surgery, P.C., 142 A.D.3d 495, 497 [2d Dept 2016]; Roques v Noble, 73 A.D.3d at 207; Bailey v Owens, 17 A.D.3d 222, 223 [1st Dept 2005]; cf. Williams v Sahay, 12 A.D.3d 366, 368 [2d Dept 2004] [unsworn affidavit of unnamed expert that was not affirmed under the penalties for perjury is insufficient to raise triable issue of fact as to defendants' alleged malpractice]).
Contrary to the plaintiff's contentions, Sanghi established, with Dr. Moses's affirmation, the plaintiff's medical records, and the parties' deposition testimony, his prima facie entitlement to judgment as a matter of law dismissing the medical malpractice cause of action insofar as asserted against him. Dr. Moses established that he was qualified as a interventional cardiologist, catheterization specialist, and interventional vascular therapist to render an expert opinion as to the plaintiff's condition, the extent of arterial blockage, the need for the placement of a stent, the propriety of the techniques employed by Sanghi, the propriety of the size of the stent, and whether the placement of the stent caused or contributed to any of the plaintiff's injuries. He is also qualified to opine as to the propriety of the plaintiff's post-operative care. It is of no moment that Dr. Moses never physically examined the plaintiff. Expert witnesses in medical malpractice actions only infrequently conduct physical examinations of a plaintiff. Rather, a retained expert physician may properly rely upon medical records that were submitted in support of a defendant's motion (see Arra v Kumar, 200 A.D.3d 949, 951 [2d Dept 2021]; Benedetto v Tannenbaum, 186 A.D.3d at 1598; Wright v Morning Star Ambulette Servs., Inc., 170 A.D.3d 1249, 1250-1251 [2d Dept 2019]).
To oppose the motion, the plaintiff has not submitted an expert affirmation or affidavit from a retained expert in cardiology, interventional cardiology, cardiothoracic surgery, or cardiovascular medicine. Rather, he submits his own unnotarized affirmation and, although he testified at his deposition that he is a practicing physician, the court notes that his specialty is dermatology and not cardiology, interventional cardiology, cardiothoracic surgery, or cardiovascular medicine.
In the first instance, CPLR 2106(a) permits only nonparty attorneys, physicians, osteopaths, and dentists to employ affirmations in lieu of affidavits. The plaintiff is a party and not an attorney and, hence, he cannot avail himself of CPLR 2106(a) by submitting an affirmation in lieu of an affidavit (see Yauchler v Serth, 114 A.D.3d 1069, 1069 [3d Dept 2014]; Law Offs. of Neal D. Frishberg v Toman, 105 A.D.3d 712, 713 [2d Dept 2013]), which must be sworn to under oath. Moreover, although declarants who have religious objections to taking an oath may also employ affirmations, such affirmations nonetheless must be notarized to have evidentiary value (see Slavenburg Corp. v Opus Apparel, 53 N.Y.2d 799 [1981]; Diaz v Tumbiolo, 111 A.D.3d 877 [2d Dept 2013]; People v Eisenstadt, 48 Misc.3d 56 [App Term, 9th & 10th Jud Dists 2015]; CPLR 2300). The plaintiff is not claiming a religious objection and, as noted, his affirmation is not notarized in any event. Hence, the court may not consider the plaintiff's affirmation, as it is not in evidentiary form (see Yauchler v Serth, 114 A.D.3d at 1069; Law Offs. of Neal D. Frishberg v Toman, 105 A.D.3d at 713).
Moreover, the court concludes that, although "a party who is qualified by reason of education or training in a specific field[,] may serve as his own expert" in a medical malpractice action (Bade v Partridge, 2009 NY Slip Op 52435[U],*5, 25 Misc.3d 1236[A] [Sup Ct, Nassau County, Nov. 23, 2009]), the plaintiff's affirmation here, even if it were in evidentiary form, is insufficient to raise a triable issue of fact in opposition to Sanghi's showing. The plaintiff provided no evidentiary foundation for his conclusory assertions that Dr. Moses evinced a "lack of knowledge" of medicine, that "[s]tents can not [sic] prevent heart attacks," and that the plaintiff's arterial blockage did not require a 38-millimeter stent. Although the plaintiff asserted that he "will present expert testimony at trial to corroborate these statements," this evinces a complete misunderstanding of the nature and purpose of a summary judgment motion. A party must come forward with such expert testimony, in the form of an affirmation or affidavit, to defeat such a motion long before the action is called for trial; one may not wait until trial to oppose the expert opinions proffered by a party moving for summary judgment. Rather, "to defeat a motion for summary judgment, the party opposing the motion must 'assemble and lay bare [his] proof to demonstrate that there are genuine triable issues and reliance upon conclusory assertions, conjecture, mere suspicion or surmise will not suffice for this purpose'" (Bank of N.Y. Mellon v Slavin, 156 A.D.3d 1073, 1076 [3d Dept 2017], quoting Spielman v Acme Natl. Sales Co. [Del.], 159 A.D.2d 918, 919 [3d Dept 1990] [citation omitted]; see Genger v Genger, 123 A.D.3d 445, 447 [1st Dept 2014]).
The determination of whether a witness is qualified to give expert testimony is entrusted to the sound discretion of the trial court, the provident exercise of which will not be disturbed absent a serious mistake or an error of law (see Guzman v 4030 Bronx Blvd. Assoc., LLC, 54 A.D.3d 42, 49 [1st Dept 2008]).
The courts of this State repeatedly have rejected the concept that only a specialist practicing in a defendant's particular specialty is competent to testify that another specialist departed from accepted practice in the specialty (see Fuller v Preis, 35 N.Y.2d 425, 431 [1974]; Bartolacci-Meir v Sassoon, 149 A.D.3d 567, 572 [1st Dept 2017]; Bickom v Bierwagen, 48 A.D.3d 1247,1248 [4th Dept 2008]; Julien v Physician's Hosp., 231 A.D.2d 678, 680 [2d Dept 1996]; Matter of Enu v Sobol, 171 A.D.2d 302, 304 [3d Dept 1991]; Joswick v Lenox Hill Hosp., 161 A.D.2d 352, 355 [1st Dept 1990]). Nonetheless, a physician who is put forward by a party as an expert qualified to oppose a summary judgment motion must assert that he or she possesses the necessary knowledge and training in the relevant specialty, or explain how he or she came to it, and also must articulate the standard of care that allegedly was violated (see Colwin v Katz, 122 A.D.3d 523, 524 [1st Dept 2014]).
"To qualify as an expert, the witness should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable. Thus, if a physician possesses the requisite knowledge and expertise to make a determination on the issue presented, he need not be a specialist in the field. The question of whether a physician may testify regarding the standard of accepted medical practice outside the scope of his specialty can be a troublesome one, but appellate courts have rejected claims of error directed at a physician's qualifications to offer an opinion outside the scope of his specialty when the witness's specialty is closely related to the specialty at issue"(Matter of Enu v Sobol, 171 A.D.2d at 304 [citations omitted]). Thus, although
"[t]he nonconclusory opinion of a qualified expert based on competent evidence that a defendant departed from accepted medical practice and that that departure was a proximate cause of plaintiff's injury precludes a grant of summary judgment in favor of the defendants (see Diaz v New York Downtown Hosp., 99 N.Y.2d 542; Cregan v Sachs, 65 A.D.3d 101, 108, 879 N.Y.S.2d 440 [1st Dept 2009]), . . . the affidavit must be by a qualified expert who 'profess[es] personal knowledge of the standard of care in the field of . . . medicine [at issue], whether acquired through his practice or studies or in some other way' (Nguyen v Dorce, 125 A.D.3d 571, 572 [1st Dept 2015] [pathologist not qualified to render opinion as to whether defendant deviated from the standard of care in the field of emergency medicine]; see also Atkins v Beth Abraham Health Servs., 133 A.D.3d 491, 20 N.Y.S.3d 33 [1st Dept 2015] [osteopath not qualified to render opinion on treatment of a geriatric patient with diabetes and other conditions]; Udoye v Westchester-Bronx OB/GYN, P.C., 126 A.D.3d 653, 7 N.Y.S.3d 59 [1st Dept 2015] [pathologist not qualified to render an opinion as to the standard of care in obstetrics or cardiology]; Mustello v Berg, 44 A.D.3d 1018, 845 N.Y.S.2d 86 [2d Dept 2007]
[general surgeon not qualified to render opinion as to gastroenterological treatment]).(Bartolacci-Meir v Sassoon, 149 A.D.3d at 572-573 [emphasis added]).
Consequently, where, as here, the physician proffering an allegedly expert affirmation demonstrates no familiarity with the defendant's specialty, the affiant will be deemed not to have the requisite experience, training, and knowledge necessary to render an opinion as to whether that defendant departed from standards of good practice (see Vargas v Bhalodkar, 204 A.D.3d 556, 557 [1st Dept 2022] ["(p)laintiff's expert, an internist and gastroenterologist with no apparent training or knowledge in cardiology, did not set forth sufficient qualifications to opine on whether [defendant] deviated from the relevant standard of care when she gave cardiac clearance for decedent to temporarily cease taking blood thinners and undergo a colonoscopy"]; Newell v City of New York., 204 A.D.3d 574, 574 [1st Dept 2022] ["an internist who demonstrated no familiarity with surgery in general or abdominal surgery in particular, was not qualified to render an opinion that [defendant] departed from accepted standards of medical care in performing plaintiff's appendectomy"]; Samer v Desai, 179 A.D.3d 860 [2d Dept 2020] [general and vascular surgeon not qualified to render opinion as to orthopedics or family medicine]; Bartolacci-Meir v Sassoon, 149 A.D.3d at 572 [1st Dept 2017] [general surgeon lacked any experience in gastroenterology sufficient to qualify him as an expert]; Steinberg v Lenox Hill Hosp., 148 A.D.3d 612, 613 [1st Dept 2017] [plaintiffs' expert was "not qualified to offer an opinion as to causation[,as h]e specializes in cardiovascular surgery, not neurology or ophthalmology [and] failed to 'profess the requisite personal knowledge' necessary to make a determination on the issue of whether [an arterial] perforation was responsible for plaintiff's visual impairment"]; cf. Fuller v Preis, 35 N.Y.2d at 431 [neurologist was permitted to give an opinion in the closely related specialty of psychiatry on the issue of whether an accident was the proximate cause of a subsequent suicide]; Humphrey v Jewish Hosp. & Med. Ctr., 172 A.D.2d 494 [2d Dept 1991] [general surgeon was deemed to be qualified to render an opinion in the specialty of obstetrics and gynecology]; Matter of Sang Moon Kim v Ambach, 68 A.D.2d 986, 987 [3d Dept 1979] [opinion testimony of qualified neurosurgeon at a professional misconduct hearing was sufficient to permit a finding of gross negligence or gross incompetence of an orthopedic surgeon committed during spinal surgery]).
The plaintiff is dermatologist. Dermatology is a medical specialty far removed from cardiology, interventional cardiology, cardiothoracic surgery, and cardiovascular medicine, and the plaintiff has made no showing that he professes the requisite personal knowledge necessary to qualify as an expert enabling him to opine on whether a cardiologist departed from good and accepted practice in the field of cardiology (cf. Campbell v Bell-Thomson, 189 A.D.3d 2149, 2150 [4th Dept 2020] [a defendant physician in a medical malpractice action is presumed to be an expert in his or her specialty and, thus, may rely upon his or her own affidavit to support a summary judgment motion if the affidavit is detailed, specific, and factual]). The court notes that the plaintiff's credibility in accusing the defendants of lacking basic medical knowledge has been severely compromised by his post-operative request that they remove the stent, a medical impossibility. Hence, the plaintiff's opinions lack the necessary evidentiary foundation and, in the absence of an affirmation or affidavit from a qualified expert, the plaintiff failed to raise a triable issue of fact in opposition to Sanghi's prima facie showing of entitlement to judgment as a matter of law. The court rejects the plaintiff's conclusory and unsupported statements that Dr. Moses lacked knowledge of medicine or that any of his conclusions were inherently incorrect.
There is no basis for the plaintiff's contention that Sanghi was not permitted to employ Dr. Moses as an expert to support the instant summary judgment motion because Sanghi had not revealed Dr. Moses's identity prior to making this motion. CPLR 3212(b) provides, in relevant part, that,
"[w]here an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit."
While the law appears to permit a court to preclude the consideration of such an expert affidavit or affirmation where a prior discovery order explicitly directed the party relying on such an affidavit or affirmation to have exchanged an appropriate statement pursuant to CPLR 3101(d) on a date prior to the motion submission date (see Theroux v Resnicow, 72 Misc.3d 654, 660 [Sup Ct, N.Y. County 2021]), that did not occur here. Even if it were, the court would decline to exercise its discretion to preclude Dr. Moses's affirmation.
Moreover, although the plaintiff would be entitled to cross-examine Dr. Moses at trial were the case permitted to proceed to trial, and Sanghi elected to call Dr. Moses as a witness, the plaintiff has no right to cross-examine Dr. Moses prior to trial. CPLR 3101(d)(1) requires a party intending to call an expert at trial, upon request, to serve upon all adversaries an expert disclosure statement identifying the expert, as well as
"the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion."
In turn, CPLR 3101(d)(1)(iii) provides, in relevant part, with certain exceptions not applicable here, that "[f]urther disclosure concerning the expected testimony of any expert may be obtained only by court order upon a showing of special circumstances and subject to restrictions as to scope and provisions concerning fees and expenses as the court may deem appropriate." The plaintiff has not made a showing of any special circumstances here (see McGowan v Great N. Ins. Co., 88 A.D.3d 665, 666 [2d Dept 2011]).
The plaintiff's remaining contentions in connection with the medical malpractice action against Sanghi are without merit.
Consequently, that branch of Sanghi's motion seeking summary judgment dismissing the medical malpractice cause of action insofar as asserted against him, based on alleged departures from good practice, must be granted.
C. LACK OF INFORMED CONSENT
The elements of a cause of action for lack of informed consent are
"(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury"(Spano v Bertocci, 299 A.D.2d 335, 337-338 [2d Dept 2002]; see Zapata v Buitriago, 107 A.D.3d 977, 979 [2d Dept. 2013]). For a statutory claim of lack of informed consent to be actionable, a defendant must have engaged in a "non-emergency treatment, procedure or surgery" or "a diagnostic procedure which involved invasion or disruption of the integrity of the body" (Public Health Law § 2805-d[2]).
"'The mere fact that the plaintiff signed a consent form does not establish the defendants' prima facie entitlement to judgment as a matter of law'" (Huichun Feng v. Accord Physicians, 194 A.D.3d 795, 797 [2d Dept 2021], quoting Schussheim v Barazani, 136 A.D.3d 787, 789 [2d Dept 2016]). Nonetheless. a defendant may satisfy his or her prima facie burden of establishing entitlement to judgment as a matter of law dismissing such a cause of action where a patient signs a detailed consent form, and there is also evidence that the necessity of the procedure, along with known risks and dangers, was discussed prior to the surgery (see Bamberg-Taylor v Strauch, 192 A.D.3d 401, 401-402 [1st Dept 2021]). Conversely,
"a signed consent form is not necessarily required where, as here, the physician providing the treatment in a medical malpractice action submits testimonial evidence that the physician obtained the patient's verbal [or other written] consent to perform the procedure [compare Public Health Law § 2805-d, with § 2442](Hope A.L. v Unity Hosp. of Rochester, 173 A.D3d 1713, 1715 [3d Dept 2019]). The court notes that, here, Sanghi obtained written consent from plaintiff in the form of written text messages. The court further rejects the plaintiff's contention that his signature was forged on a consent form, as the medical records do not include any consent form referable to the placement of the stent, and Sanghi asserted that the plaintiff never executed one.
Sanghi established his prima facie entitlement to judgment as a matter of law dismissing the lack of informed consent cause of action with his own deposition testimony, copies of the text exchanges between the plaintiff, Mueller, and himself, and Dr. Moses's expert affirmation attesting that Sanghi conformed to the standard of care applicable to obtaining informed consent. The plaintiff failed to raise a triable issue of fact in opposition to this showing.
Expert testimony is not required to raise a triable issue of fact with respect to whether a reasonably prudent person, fully informed, would not have consented to the treatment that was actually rendered (see Hugh v Ofodile, 87 A.D.3d 508, 509 [1st Dept 2011] ["This Court has held that expert testimony concerning what a reasonable person would have done is not necessary to prosecute a lack of informed consent claim"]; Andersen v Delaney, 269 A.D.2d 193, 193 [1st Dept 2000]; Hardt v LaTrenta, 251 A.D.2d 174, 174 [1st Dept 1998] ["plaintiff was not required to adduce expert medical testimony on the 'reasonably prudent person' element of that statute"]; Osorio v Brauner, 242 A.D.2d 511, 512 [1st Dept 1997]; see also Gray v Williams, 108 A.D.3d 1085, 1086-1087 [4th Dept 2013]; cf. Orphan v Pilnik, 66 A.D.3d 543 [1st Dept 2009] [awarding summary judgment to defendant where neither plaintiff nor his expert alleged that a reasonable person would have declined to undergo the procedure]). Nonetheless, CPLR 4401-a requires a plaintiff opposing summary judgment to submit expert testimony with respect to the issue of whether the consent obtained by the defendant was qualitatively insufficient (Rodriguez v New York City Health & Hosps. Corp., 50 A.D.3d 464, 465 [1st Dept 2008]). Since the plaintiff failed to adduce such expert testimony, has not pointed to any evidence contradicting the contents of his text exchanges with the defendants, and has not shown that the defendants, including Sanghi, provided him with no information whatsoever about the risks and benefits of, or alternatives to, the placement of a stent (cf. Snyder v Simon, 49 A.D.3d 954, 956-957 [3d Dept 2008]; Tullo v Tartack, 2002 NY Slip Op 40507[U], *4, 2002 NY Misc. LEXIS 1640, *7-8 [Sup Ct, Kings County, Jul. 24, 2002]), summary judgment must be awarded to Sanghi dismissing the lack of informed consent cause of action insofar as asserted against him.
The court notes that "[a] failure to diagnose cannot be the basis of a cause of action for lack of informed consent unless associated with a diagnostic procedure that 'involve[s] invasion or disruption of the integrity of the body'" (Janeczko v Russell, 46 A.D.3d 324, 325 [1st Dept 2007], quoting Public Health Law § 2805-d[2][b]; see Lewis v Rutkovsky, 153 A.D.3d at 456), and that invasion or disruption is claimed to have caused the injury. Hence, to the extent that any part of the plaintiffs lack of informed consent cause of action is premised on Sanghi's failure to diagnose rheumatoid arthritis or mitral insufficiency, that portion of the cause of action must also be summarily dismissed on that independent ground as well.
V. CONCLUSION
In light of the foregoing, it is
ORDERED that the motion of the defendant Pramod Sanghi, M.D., for summary judgment dismissing the complaint insofar as asserted against him is granted, and the complaint is dismissed insofar as asserted against the defendant Pramod Sanghi, M.D.; and it is further, ORDERED that the action against the defendant Pramod Sanghi, M.D., is severed; and it is further, ORDERED that the Clerk of the court is directed to enter judgment dismissing the complaint insofar as asserted against the defendant Pramod Sanghi, M.D.
This constitutes the Decision and Order of the court.