Opinion
104280/2007.
Decided November 24, 2009.
On or about October 1, 2007, the plaintiffs commenced this action against defendants after they allegedly failed to, inter alia, timely diagnose and treat plaintiff Jordana Goodman's MRSA infection. The allegations in the complaint arose after the plaintiff, Jordana Goodman, gave birth to a healthy baby boy at St. Vincent's Hospital on May 30, 2005. It is undisputed that between mid-May 2005 and June 1, 2005 the hospital experienced an outbreak of MSRA which affected a number of newborn babies. Plaintiff Jordana Goodman's baby boy did not contract the MSRA infection. While in the hospital after the birth of her son, defendant Nurse Marie Kimball, a certified lactation counselor, instructed plaintiff on breast feeding. Soon after the birth of her son, Mrs. Goodman presented to defendant Dr. David M. Herzog (hereinafter "Dr. Herzog") with complaints of right breast pain. Dr. Herzog treated the plaintiff with antibiotics, Tylenol and a course of heat. On June 6, 2005, the plaintiff presented to St. Vincent's emergency room with similar complaints. Dr. Herzog, unable to present to St. Vincents, instructed the OB/GYN resident on duty, defendant Dr. Carol Mae Russell, to continue the antibiotic and Tylenol regime and instructed Mrs. Goodman to follow up with Dr. Herzog himself.
Dr. Jose Encanto was discontinued from this action.
As instructed, Mrs. Goodman followed up with Dr. Herzog on June 13, 2005, where she complained of pain and blisters on her left breast. Dr. Herzog advised plaintiff to wear a tight bra, stop breast feeding and treated the symptoms with medication. On June 21, 2005, the plaintiff presented to defendant Dr. Herzog's medical group and saw defendant Dr. Michael A. Schirripa. Dr. Schirripa noted the right breast mastitis and treated the plaintiff with heat and antibiotics for the left breast symptoms.
On June 27, 2005, Dr. Herzog saw the plaintiff again where he changed her prescription and referred her to a breast surgeon, nonparty Dr. Richard Steinbruk. Dr. Steinbruk performed surgery on the plaintiff and a culture on the plaintiff's right breast which tested positive for MRSA on July 11, 2005. After the surgery, the plaintiff's prognosis improved and she recovered from the MRSA infection.
The plaintiff commenced this action to recover against defendants for their alleged failure to timely diagnose and treat her MRSA infection. Plaintiff alleges, inter alia, that defendant Drs. Herzog, Schirripa and Russell failed to timely take a culture and hence diagnose her breast as infected with MSRA. Plaintiff further alleges that Nurse Kimball infected the plaintiff with the MRSA infection while counseling plaintiff on proper breast feeding technique. Lastly, plaintiff Cory Goodman alleges a derivative claim, namely, loss of consortium. At present, defendants Dr. Herzog, Dr. Schrippa and Women's Healthcare Specialists, and Dr. Russell and Nurse Kimball are all separately moving for summary judgment as a matter of law contending that they acted within the accepted medical standards in the treatment/care they each rendered to the plaintiff, Jordana Goodman.
It is well settled that a "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 demonstrate the absence of any material issues of fact" ( Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" ( Chance v. Felder , 33 AD3d 645 , 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557). In this regard, the court is enjoined to accept the evidence tendered by the opposing party as true, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue" ( Fleming v. Graham , 34 AD3d 525 [2d Dept 2006] quoting Barker v. Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994] [internal quotation marks omitted]).
I. Dr. Herzog's Motion [Motion 009]
It is well settled that, in a medical malpractice action, "[o]n a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" ( Rebozo v. Wilen , 41 AD3d 457 , 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group , 23 AD3d 525 , 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). "In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury" ( Rebozo v. Wilen, 41 AD3d at 458-59; Rosenman v. Shrestha , 48 AD3d 781 , 783 [2d Dept., 2008]; Johnson v. Queens-Long Island Med. Group , 23 AD3d 525 , 526-27 [2d Dept., 2005]).
The defendant Dr. Herzog has established his prima facie entitlement to summary judgment by adducing expert opinion that he did not deviate from good and accepted medical practice in his treatment rendered to Mrs. Goodman ( Alvarez v. Prospect Hosp., 68 NY2d 320, 325; Rebozo v. Wilen , 41 AD3d 457 , 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group , 23 AD3d 525 , 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). Dr. Herzog has established that he acted within good and accepted medical standards by treating the plaintiff's complaints with antibiotics, Tylenol and heating pads. Defendant Dr. Herzog opined that he conducted a thorough consultation to evaluate the cause of the plaintiff's breast pain and treated her accordingly.
In opposition, however, the redacted affidavit of plaintiff's medical expert successfully raised a triable issue of fact ( Chance v. Felder , 33 AD3d 645 , 645-46 [2d Dept., 2006]; Zuckerman v. City of New York, 49 NY2d 557; Rebozo v. Wilen, 41 AD3d at 458-59). Plaintiff's expert opined that the defendant Dr. Herzog deviated from good and accepted medical practice in the treatment he rendered to the plaintiff, Jordana Goodman. Specifically, plaintiff's expert contends that Dr. Herzog deviated from accepted medical standards and practice by failing to culture the plaintiff's breast upon the initial complaints. Thus, where triable issues of fact exist when the parties offer conflicting expert opinions, a credibility question is presented that requires a jury's resolution ( Dandrea, v. Hertz , 23 AD3d 332 [2d Dept. 2005]; Shields v. Baktidy , 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]). As a result, summary judgment in favor of Dr. Herzog is inappropriate.
The Court notes plaintiff's redacted expert affirmation is sufficient, pursuant to CPLR § 3101(d)(1)(i), whereby redacted physicians affirmation are permissible to defeat a motion for summary judgment ( Marano v. Mercy Hosp., 241 AD2d 48, 50 [2d Dept. 1998]).
With respect to the portion of Dr. Herzog's motion that requests plaintiff Cory Goodman's derivative cause of action be dismissed, it is denied. Claims for loss of services encompass "not only services and support, but also elements as love, companionship, affection and society" ( Slobin v. Boasiako, 19 Misc.3d 1110 [A], [Nassau Cty., 2008]). At this juncture, questions of fact remain regarding whether plaintiff Cory Goodman lost services from his wife, plaintiff Jordana Goodman, as a result of the defendants' negligence. As such, summary judgment on the derivative cause of action is denied.
II. Dr. Michael A. Schirripa and Women's Healthcare Specialists Motion
[Motion 010]
Here, Dr. Michael Schirripa has established his prima facie entitlement to summary judgment by submitting the affirmation of Dr. Henry Prince, who opined that Dr. Schirripa acted in accordance with good and accepted medical practice and procedures in his treatment of the plaintiff Jordana Goodman on June 21, 2005 ( Alvarez v. Prospect Hosp., 68 NY2d 320, 325; Rebozo v. Wilen , 41 AD3d 457 , 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group , 23 AD3d 525 , 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). More particularly, Dr. Prince opined that Dr. Schirripa treated plaintiff appropriately by performing a full evaluation and continuing on a course of antibiotics in treating plaintiff's mastitis.
In opposition, the plaintiff has raised triable issues of fact with respect to whether Dr. Schirripa deviated from accepted medical standards in failing to obtain a culture from the plaintiff Jordana Goodman at the June 21, 2005 appointment ( Chance v. Felder , 33 AD3d 645 , 645-46 [2d Dept., 2006]; Zuckerman v. City of New York, 49 NY2d 557; Rebozo v. Wilen, 41 AD3d at 458-59). As a result, where triable issues of fact exist when the parties offer conflicting expert opinions, a credibility question is presented that requires a jury's resolution ( Dandrea, v. Hertz , 23 AD3d 332 [2d Dept. 2005]; Shields v. Baktidy , 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]). As a result, summary judgment in favor of Dr. Schirripa is inappropriate.
III. Dr. Carol Mae Russell and Nurse Marie Kimball's Motion [Motion 011]Generally, employees of a hospital are not held liable "where [they] follow the direction of the attending physician, unless that physician's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders'" ( Garson v. Beth Israel Medical Ctr. , 41 AD3d 159, 159 [1st Dept. 2007]; Toth v. Bloshinsky , 39 AD3d 848 , 850 [2d Dept. 2007]; Cerny v. Williams , 32 AD3d 881 , 883 [2d Dept. 2006]; Welch v. Scheinfeld , 21 AD3d 802 , 807 [1st Dept. 2005]).
Here, defendant Dr. Russell has established her entitlement to summary judgment as a matter of law by submitting evidence that Dr. Herzog was plaintiff's private attending physician and that she did not contradict normal practice in her treatment of the plaintiff ( Chance v. Felder , 33 AD3d 645 , 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557; Garson v. Beth Israel Medical Ctr. , 41 AD3d 159, 159 [1st Dept. 2007]; Toth v. Bloshinsky , 39 AD3d 848 , 850 [2d Dept. 2007]). Specifically, it is undisputed that the treatment rendered by Dr. Russell to Jordana Goodman on June 6, 2005, was directed by Dr. Herzog, who instructed Dr. Russell to continue the plaintiff on Tylenol, continue breast feeding and antibiotics. Further, Dr. Russell submits the expert affirmation of Dr. James Howard, who opined that Dr. Russell acted in accordance with good and accepted medical practice in her treatment/examination of the plaintiff, Jordana Goodman.
In opposition, the plaintiff has failed to raise questions of fact ( id.). It is clear that Dr. Russell rendered the treatment to plaintiff, Jordana Goodman under the instruction from Dr. Herzog. Plaintiff failed to raise any questions of fact that Dr. Herzog's instructions were so contradicted by normal practice that ordinary prudence required Dr. Russell to question their correctness or deviate from the instruction ( Garson v. Beth Israel Medical Ctr. , 41 AD3d 159, 159 [1st Dept. 2007]; Toth v. Bloshinsky , 39 AD3d 848 , 850 [2d Dept. 2007]; Cerny v. Williams , 32 AD3d 881 , 883 [2d Dept. 2006]; Welch v. Scheinfeld , 21 AD3d 802 , 807 [1st Dept. 2005]). As such, summary judgment is granted for Dr. Russell.
With respect to Nurse Marie Kimball's motion, it is evident Nurse Kimball has established her prima facie entitlement to summary judgment by submitting evidence that in order to infect plaintiff Jordana Goodman with MRSA she herself would have had to be infected and Nurse Kimball tested negative for MRSA ( Rebozo v. Wilen , 41 AD3d 457 , 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group , 23 AD3d 525 , 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). Nurse Kimball presented the expert affirmation of Dr. Dial Hewlett who opined with a reasonable degree of medical certainty that Nurse Kimball's behavior of washing her hands with Purell before counseling plaintiff on breast feeding was well within the accepted medical practices. Further, Dr. Hewlett opined that Nurse Kimball's negative test for MRSA prevents her from transmitting it to plaintiff Jordana Goodman.
In opposition, the plaintiff's expert affirmation which contends that Nurse Kimball deviated from accepted medical standards by failing to use hand sanitation practices prior to instructing the plaintiff is speculative and conclusory and fails to raise an issue of fact ( Barila v. Comprehensive Pain Care of Long Island , 44 AD3d 806 , 807 [2d Dept., 2007]). The plaintiff fails to establish causation by Nurse Kimball where she clearly tested negative for MRSA and therefore would have been unable to transfer the bacteria to the plaintiff. As such, summary judgment in favor of Nurse Kimball is appropriate.
Accordingly, it is
ORDERED that the motion of defendant Doctor David Herzog, is hereby denied, and it is further
ORDERED that the motion of defendant Doctor Michael Schirrpa and Women's Healthcare Specialists, is hereby denied, and it is further
ORDERED that defendant Doctor Carol Mae Russell and Nurse Marie Kimball's motion for summary judgment is hereby granted, and it is further
ORDERED that the complaint and all cross claims are hereby dismissed as against Dr. Carol Mae Russell and Marie Kimball, R.N., and it is further
ORDERED that any and all additional requests for relief are hereby denied, and it is further
ORDERED that the Clerk enter Judgment accordingly.
THIS IS THE DECISION AND ORDER OF THE COURT.