Opinion
Index No. 162192/2015
01-12-2024
TIA FLENYOL, Plaintiff, v. STEWART M. KAMEN, NEW YORK-PRESBYTERIAN HEALTHCARE SYSTEM, INC., NEW YORK- PRESBYTERIAN HOSPITAL/COLUMBIA UNIVERSITY MEDICAL CENTER, THE ALLEN HOSPITAL, FOOT ASSOCIATES NY, Defendant.
Unpublished Opinion
PRESENT: HON. KATHY J. KING Justice.
DECISION + ORDER ON MOTION
HON. KATHY J. KING J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 142, 159, 160, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 200, 201,202 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 006) 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 199 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.
Upon the foregoing papers in this medical malpractice action, defendants Stewart M. Kamen, DPM (s/h/a Stewart M. Kamen, M.D.), Foot Associates, New York (collectively referred to as "Dr. Kamen") (Mot. Seq. No. 5) and defendants The New York and Presbyterian Hospital, s/h/a New York-Presbyterian Healthcare System, Inc., New York-Presbyterian/Columbia University Medical Center, The Allen Hospital (collectively referred to as "NYPH") (Mot. Seq. No. 6) move for summary judgment pursuant to CPLR 3212 dismissing the plaintiffs complaint with prejudice.
Motion Sequences #5 and #6 are consolidated for purposes of disposition.
Plaintiff, Tia Flenyol, opposes the respective motions.
BACKGROUND FACTS AND PROCEDURAL HISTORY
In January 2012, the plaintiff was diagnosed with sarcoma, a type of cancer, on her left foot and underwent 33 sessions of radiation therapy through May 2012. The radiation treatments left the plaintiff with a poorly healing wound that required five debridements, four of which were performed by Dr. Kamen, a Podiatrist. In April 2013, the plaintiff consulted with Dr. Framm, an Infectious Disease Doctor. After examination, he concluded that the plaintiff had a complicated wound status post-radiation therapy without the presence of active infection. The plaintiff presented to Dr. Framm again on May 13, 2013, and based on her complaints of redness, swelling, and increased pain at the wound site, she was prescribed a course of antibiotic treatment, which included Augmentin and Amoxicillin. On June 19, 2013, another physician in Dr. Framm's practice, Dr. Fridman, prescribed Ciprofloxacin. Plaintiff continued seeing Dr. Kamen and Dr. Framm until her final visit with Dr. Framm on July 3, 2013. At that time, it was observed that the plaintiff had a 4 x 6 cm wound on the dorsum of the left foot, with surrounding redness. Dr. Framm considered an MRI and suggested that a surgical incision & debridement might be required based on the obvious changes in the wound from the last visit to his office. During this period, commencing in May 2013, the plaintiff also received hyperbaric oxygen treatment ("HBO") to assist with wound healing.
On or about July 4, 2013, the plaintiff was admitted to an outside hospital where a debridement and wound exploration was performed, and an MRI revealed osteomyelitis. Nearly 18 months later, in December 2014, following outside surgical management, additional HBO treatments, and follow-up visits to multiple non-party plastic surgeons, the plaintiff underwent a left below-the-knee (BKA) amputation.
Plaintiff commenced this action against defendants Dr. Kamen and NYPH by the filing of a Summons and Complaint on or about November 25, 2015, which was later amended and filed on or about December 1, 2015. Answers were interposed by Dr. Kamen on or about January 16, 2016, and by NYPH, on or about January 21, 2016.
On or around March 2016, the plaintiff served a Verified Bill of Particulars as to Defendants NYPH and Kamen. Plaintiffs deposition was then held over the course of two sessions, the first session held on March 10, 2017, and the second session held on April 25, 2017. Thereafter, Dr. Kamen was deposed on or about November 14, 2017. Subsequently, Dr. Stuart Framm, an infectious disease physician, was deposed on or about March 8, 2018.
Thereafter, on or around September 20, 2018, the plaintiff served a Supplemental Bill of Particulars, setting forth an additional injury, a revision of the left below-the-knee amputation. Following the deposition of Dr. Framm, counsel for Dr. Kamen moved to add Dr. Framm and "Columbia Doctors" as third-party defendants. The plaintiff took no position on the motion. Motion practice ensued, and the Court ruled, on two occasions (once initially and once during a re-argument), that the third-party Complaint lacked the necessary facts to establish a viable cause of action. Additionally, the Court granted Dr. Framm's motion to dismiss.
In or around August 2019, the plaintiff moved to amend the caption to add Dr. Framm and Columbia Doctors as direct defendants to the action under the relation-back doctrine. By order of the Court dated July 1st, 2020 (J. Silver), the Court denied the plaintiff s motion, and the plaintiff filed the Note of Issue on or about November 3, 2020. Thereafter, the defendants filed their respective summary judgment motions on March 4th, 2021, and April 7th, 2021.
PLAINTIFF'S ALLEGATIONS
The gravamen of plaintiffs medical malpractice claim is that the defendant Dr. Kamen failed to properly treat an infected wound of the plaintiffs left foot from January 2013 through July 2013, resulting in a below-the-knee amputation of the plaintiffs left leg. There is no claim that the debridements performed by Dr. Kamen were done incorrectly. The plaintiff also asserts that NYPH is vicariously liable as to Dr. Kamen based on claims arising from lack of informed consent and negligent hiring and supervision as to Dr. Kamen and non-parties Stuart Framm, M.D., and Columbia Doctors.
It is well-established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by submitting admissible evidence that demonstrates the absence of material issues of fact that would require a trial (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [ 1986]). In a medical malpractice action, a movant must provide evidentiary proof in the form of expert opinions and factual evidence establishing: that the defendant complied with accepted standards of medical care and practice, obtained informed consent; and/or the defendant's conduct was not a proximate cause of plaintiffs alleged injuries (see N.Y. Public Health Law § 2805-d; see also Alvarez v. Prospect Hospital, 68 N.Y.2d 325 [1986]; see also Koeppel v. Park, 228 A.D.2d 288, 289 [1st Dep't 1996]).
In support of his motion, defendant Dr. Kamen submits the expert affirmation of Reed E. Phillips, M.D. ("Dr. Phillips"), a board certified Oncologist, Internist, and Hospice & Palliative Care physician. Dr. Phillips opines to a reasonable degree of medical certainty based on a review of the pleadings, bill of particulars, plaintiffs medical records, and deposition transcripts associated with this matter.
Dr. Phillips opines that no treatment or lack of treatment by defendant Dr. Kamen caused or contributed to the injuries alleged in this case. According to Dr. Phillips, the plaintiffs medical records show that she had a malignant lesion on her left foot, which was surgically removed on January 2 at Mt. Sinai Hospital. The surgical cancer aftercare included XRT radiation therapy for 33 sessions from March 22 - May 16, 2012. XRT, or external beam radiation therapy, directs a beam of radiation from outside the body to cancerous tissues inside the body. If XRT treatment is successful, the cancerous tumor does not grow back. He indicated that a common adverse complication to XRT treatment is that the surrounding tissue and surrounding anatomical structures suffer the same consequence as the area where the cancer was located. He opines that the healthy tissue around the area of the plaintiffs cancerous lesion was obliterated by XRT therapy and was never able to heal, necessitating a left lower extremity amputation. Dr. Phillips indicated that the pathology showing a "non-healing radiated wound (over 12 months) secondary to life saving radiation therapy that plaintiff underwent between March and May 2012 is documented in the medical records of plaintiffs treating providers including defendant Dr. Kamen, and non-parties Drs. Framm, Chiu, Himel and lofin. Consistent with this pathological evidence, Dr. Phillip opines that the radiation fibroblast is indicative of a non-healing left foot ulcer and the need for the plaintiffs below-the-knee amputation on December 29, 2014.
Based on the expert opinion of Dr. Phillips, the Court finds that Dr. Kamen has established prima facie entitlement to summary judgment as a matter of law since Dr. Phillips demonstrated that no act or omission by Dr. Kamen caused or contributed to the injuries claimed in this matter. Dr. Phillips also established that there was no causal connection between the medical treatment provided by Dr. Kamen and the injuries alleged by the plaintiff in the Bills of Particulars.
Defendant NYPH submits the expert affirmation of Bruce F. Farber, M.D., ("Dr. Farber") a board-certified Internist and Infectious Disease physician. He opines that it was not due to any act or omission on the part of Defendant NYPH that caused the plaintiff to undergo the below-the -knee amputation, and which was consistent with Dr. Phillip's opinion that it was due to the compromised tissue of the left foot, wherein the radiation was performed, that left both the cancerous and healthy tissue damaged. Dr. Faber concluded that there were no departures from the standard of medical care by NYPH and that none of the actions, nor inactions, on behalf of defendant NYPH were the proximate cause of any of the plaintiffs injuries.
Defendant NYPH also contends that plaintiffs claim for lack of informed consent must be dismissed. To have a valid claim for lack of informed consent, a plaintiff must establish that, pursuant to an order "(1) the defendant physician failed to disclose the material risks, benefits, and alternatives to the contemplated medical procedure, which a reasonable medical practitioner under similar circumstances would have disclosed in a manner permitting the patient to make a knowledgeable evaluation, and (2) a reasonably prudent person in the patient's position would not have undergone the procedure if he or she had been fully informed." (Public Health Law § 2805-d; Rodriguez v New York City Health & Hosps. Corp., 50 A.D.3d 464 [1st Dept 2008] [internal citations omitted]).
Dr. Farber's expert affirmation indicates that the plaintiff executed five separate consent forms regarding the debridements. Based on the content of the forms, Dr. Farber opines that Dr. Kamen and NYPH secured proper informed consent from the plaintiff as to the debridements and that a reasonably prudent person in the plaintiffs position, inclusive of the risks and benefits of the surgeries, as well as the choice to refrain from undergoing the surgeries, would not have refrained from the debridements. It is well settled that a defendant establishes prima facie entitlement to judgment as a matter of law dismissing a cause of action of a lack of informed consent by demonstrating the patient signed a consent form after being informed of the procedure and alternatives, as well as the reasonably foreseeable risks and benefits (Ortaglia v Scanlon, 35 A.D.3d 421 [2d Dept 2006]; Ericson v Pall es chi, 23 A.D.3d 608 [2d Dept 2005]; Wilson v Btjfa, 294 A.D.2d 357 [2d Dept 2002]).
The Court finds that based on Dr. Farber's expert opinion, Defendant NYPH has also established prima facie entitlement to summary judgment as a matter of law as to the plaintiffs claim for malpractice and lack of informed consent.
Once the proponent of a motion for summary judgment makes prima facie showing, the burden shifts to the opponent to demonstrate, by admissible evidence, the existence of a material issue of fact that requires resolution at trial (see Zuckerman v City cf New York, 49 N.Y.2d 557, 562 [1980]). To rebut the defendant's prima facie showing, the plaintiff must tender medical evidence demonstrating that the defendant departed from accepted medical practice and that such departure was a proximate cause of the injuries (Anyie B. v Bronx Lebanon Hosp., 128 A.D.3d 1, [1st Dept 2015]).
Here, the plaintiff s expert, a board-certified infectious disease doctor, submits opposition to the respective motions of Dr. Kamen and NYPH. He refutes Dr. Phillips' opinion that the radiation treatment to the plaintiffs foot caused cellular and microvascular alterations resulting in a non-healing wound and that limb salvage was not possible as a result. It is the plaintiffs expert opinion that there was evidence of wound progression on March 27th, 2013, as shown by the exposed tendon; an infection caused that wound progression; that this infection was not recognized in a timely manner by Dr. Kamen; and that the infection would not have required amputation for cure had he taken the necessary diagnostic and therapeutic measures.
The plaintiffs expert opines that had the plaintiffs infection been diagnosed earlier, between March 27, 2013, and May 31st, 2013, it is more likely than not that timely high-dose antibiotics would have prevented its progression, and the limb amputation could have been avoided. He continues that allowing an unknown pathogen to progress unabated within the bones of her foot through July 3, 2013, without question, severely compromised her chances of limb salvage and is a departure from the standard of care.
The plaintiffs expert directly contravenes the opinion of Dr. Phillips, thereby creating a triable issue of fact, and thus, Dr. Kamen's motion for summary judgment is denied. "Summary judgment is not appropriate ... [when] the parties [submit] conflicting medical expert opinions because [s]uch conflicting expert opinions will raise credibility issues which can only be resolved by a jury" (Cummings v Brooklyn Hosp. Ctr., 147 A.D.3d 902, 904 [2d Dept 2017], quoting DiGeronimo v Fuchs, 101 A.D.3d 933 [2d Dept 2012] [internal quotation marks omitted]; see Elmes v Yelon, 140 A.D.3d 1009 [2d Dept 2016]; Leto v Feld, 131 A.D.3d 590 [2d Dept 2015]).
Regarding the branch of NYPH's motion seeking to hold NYPH vicariously liable for the acts of Dr. Kamen, Dr. Framm, and Columbia Doctors, NYPH argues that dismissal of said claim is warranted based on "law of the case."
In this regard, the court, pursuant to a Decision/Order dated July 1 st, 2020 (J. Silver), ruled that "there is no showing that NYPH or Columbia University Medical Center exercised any authority or control over Dr. Framm or Columbia Doctors such as to impose vicarious liability onto NYPH or Columbia University Medical Center for the acts of Dr. Framm or Columbia Doctors." It is well settled that the doctrine of the law of the case, "is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of coordinate jurisdiction are concerned." (Martin v. City cf Cohoes, 37 N.Y.2d 162, 165 [1975]).
The Court finds that there is no basis for holding NYPH vicariously liable for the acts of Dr. Framm and Columbia Doctors based on the law of the case. The Court also finds that there is no legal basis for imposing vicarious liability on Dr. Kamen since he is not an employee of NYPH (Hill v. St. Clare's Hospital, 67 N.Y.2d 72, 79 [1986]; see also Teer v. Queens- Long Island Med. Gtp., P.C., 303 A.D.2d 488, 490 [2d Dep't. 2003]). Here, the record shows that NYPH is not vicariously liable for the acts of Dr. Kamen since Dr. Kamen's paycheck was signed by Foot Associates of New York, the entity by whom he was employed, not defendant NYPH. The Court further notes that "(a)lthough a hospital or other medical facility is liable for the negligence or malpractice of its employees . . . that rule does not apply when the treatment is provided by an independent physician (Dragotta v Southampton Hosp., 39 A.D.3d 697, 698 [2d Dept 2007]; Salvatore v Winthrop Univ. Med. Ctr., 36 A.D.3d 887 [2d Dept 2007]; Welch v Scheir,feld, 21 A.D.3d 802, 807 [1st Dept 2005]). While the plaintiff, in opposition, asserts that Dr. Framm is liable under the doctrine of ostensible agency, the court finds that the plaintiff fails to rebut NYPH's prima facie showing based on the law of the case. As to the branch of NYPH's motion seeking dismissal of the claim for lack of informed consent and negligent supervision, the plaintiff does not oppose this request for relief.
Accordingly, it is hereby
ORDERED that Dr. Kamen's motion for summary judgment is denied; and it is further, ORDERED that NYPH's motion for summary judgment is granted and plaintiffs complaint is dismissed; and it is further, ORDERED that the defendants are to serve a copy of this order with notice of entry on the General Clerks Office within ten (10) days of the date of this order; and its further, ORDERED that the Clerk shall amend the caption to remove defendants New York Presbyterian Healthcare System, Inc., New York-Presbyterian Hospital/Columbia University Medical Center, and The Allen Hospital, and it is further, ORDERED that the remaining parties appear for a settlement conference on February 27th at 10:00am room #351 at 60 Centre St. New York, New York 10007.
This constitutes the decision and order of the Court.