Opinion
No. 67176/2016
03-12-2019
CHRISTINA T. HALL-ELLIS and BERNARD ELLIS, Plaintiffs, v. NEW YORK PRESBYTERIAN HOSPITAL, NEW YORK PRESBYTERIAN HEALTHCARE SYSTEM, INC., LAWRENCE HOSPITAL CENTER, BRIAN FAHNRICH, M D SAMANTIIA SHANKAR, M.D., "JOHN DOE" and 'MANE DOE", M.D. 1-5" and 'JOHN DOE" and "JANE DOE", R.N., "1-5" (names are meant to be fictitious and are presently unknown), Defendants.
Unpublished Opinion
DECISION & ORDER
HON. HELEN M. BLACKWOOD JUSTICE
The following papers (e-filed documents 28-45, 49-62) were read on the E-filed motion by defendants LAWRENCE HOSPITAL CENTER, BRIAN FAHNRICH, M.D., and SAMANTHA SHANKAR, M.D., for an order granting summary judgment dismissing all claims asserted against them:
Papers
Notice of Motion, Affirmation in Support (Exhibits A-P)
Affirmation/Affidavit in Opposition (Exhibits 1-11)
Reply Affirmation
Upon reading the foregoing papers it is
ORDERED the branch of the motion which seeks an order granting summary judgment dismissing all causes of action for medical malpractice, negligent hiring, lack of informed consent, and loss of services against the defendants LAWRENCE HOSPITAL CENTER, BRIAN FAHNRICH, M.D., and SAMANTHA SHANKAR, M.D., is granted; and it is further
ORDERED that this decision and order shall be served with a notice of entry on all parties withing ten days of entry.
CHRISTINA T. HALL-ELLIS ("Plaintiff') filed a summons and verified complaint against NEW YORK PRESBYTERIAN HOSPITAL, NEW YORK PRESBYTERIAN HEALTHCARE SYSTEM, INC., LAWRENCE HOSPITAL CENTER ("the hospital"), BRIAN FAHNRICH, M.D. ("Dr. Fahnrich"), and SAMANTHA SHANKAR, M.D. (Dr. Shankar) (collectively "the defendants") Specifically, the plaintiff alleges that the defendants departed from acceptable medical practices and procedures by failing to advise her of, and treat her appropriately for a ventral wall hernia on January 1,2016, while she was at the emergency room of the hospital. Furthermore, the plaintiff alleges that as a direct result of the defendants' careless and negligent treatment, she required surgery to repair the hernia and remove a portion of her small intestine on or about January' 30, 2016.
The action against defendants New York Presbyterian Hospital and New York Presbyterian Healthcare System, Inc. was discontinued by stipulation on February 2, 2017.
The hospital, as well as Dr. Fahnrich, the emergency room doctor that treated the plaintiff, and Dr. Shankar, the radiologist that interpreted the radiological testing ot the plaintiff while she was in the hospital, now move for an order granting summary judgment dismissing all of the claims against them, claiming that they have no liability because the care each doctor rendered to the plaintiff was within the accepted standard of care.
Section 3212 of the Civil Practice Law and Rules ("CPLR") requires that a summary judgment motion be supported by a showing that "the cause of action ... has no merit" and "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212[b]). In order to establish a cause of action for medical malpractice, a plaintiff must show that "the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries" (Stukas v. Streiter, 83 A.D.3d 18,23 [2d Dept. 2011]).
The defendants have submitted affidavits from several expert medical doctors to show that neither Dr. Fahnrich, nor Dr. Shankar, deviated from the accepted community standards of practice when treating the plaintiff. Furthermore, the experts' affidavits show that if there was a departure, that departure was not the proximate cause of the plaintiff s need for surgery. Lynne D. Richardson, M.D., is a licensed physician board certified in emergency medicine. After reviewing the pleadings in the case, as well as the deposition testimony and the plaintiff s medical records and radiology images, she signed an affidavit indicating that at no time did Dr. Fahnrich depart from good and accepted standards of emergency medicine. In fact, she ends her affidavit by stating "[i]n sum, every aspect of the care and treatment rendered by Dr. Fahnrich was completely appropriate and in accordance with good and accepted standards of emergency medicine care" (Affirmation in Support, Exhibit A).
Similarly, Dr. Zina Ricci, a duly licenced physician, board certified in diagnostic radiology, reviewed the pleadings, medical records, radiology images, and deposition in this matter. After doing so, she concluded that Dr. Shankar interpreted all of the radiology images properly and at all times, rendered care to the plaintiff that was "in accordance with good and accepted standards of radiological care" (Affirmation in Support, Exhibit B).
Finally, the defendants attached to their motion an affidavit from Dr. Michael Weitzen, a duly licensed physician, board certified in general surgery, and the doctor that performed surgery on the plaintiff on or about January 30, 2016, in order to address the partial bowel obstruction caused by the ventral wall hernia. The surgery included a small bowel resection. In his affidavit. Dr. Weitzen renders the opinion, to a reasonable degree of medical certainty, "that the ventral wall hernia was a chronic condition" that existed prior to the plaintiff s Cesarean section on December 17, 2015 (Affirmation in Support, Exhibit C). Furthermore, he concludes that even if the plaintiff had been referred to him after her emergency room visit on January 1, 2016, she would not have been a surgical candidate until after she had healed from her Cesarean section, or had developed an acute problem, neither of which existed upon her discharge from the emergency room.
Where, as here, the moving party establishes a prima facie showing of entitlement to judgment as a matter of law, the burden is shifted to the nonmoving party "to raise a triable issue of fact with respect to the elements or theories established by the moving party (Stukas v. Streiter, 83 A.D.3d at 25). The plaintiff has failed to do so. There arc no sworn statements by any medical experts controverting the defendants' expert physicians. The plaintiffs sworn affidavit and her attorney's medical conclusions arc insufficient to defeat the defendants motion for summary judgment as they are not sufficiently supported by evidence and are speculative (see Daiz v. New York Downtown Hosp., 99 N.Y.2d 542 [2002]). Therefore, because the plaintiff has failed to raise triable issues of fact as to elements of the medical malpractice cause of action, as well as the issue of causation, the defendants' motion must be granted (see Park v. Kovachevich, 116 A.D.3d 182 [1st Dept. 2014]; Stukas v. Streiter, 83 A.D.3d at 19).
Inasmuch as the plaintiffs papers fail to show any issues of fact as to whether the hospital knew or should have known that either doctor had a propensity for conduct which caused plaintiffs injury, the defendants' motion for summary judgment with respect to the negligent hiring claim is granted (see Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159 [2d Dept. 1997]).
Finally, with respect to the plaintiffs claim of lack of informed consent, the plaintiff has failed to overcome the defendant's motion since there has been no showing whatsoever that there was some unconsented-to affirmative violation of the plaintiff s physical integrity (Hecht v. Kaplan, 221 A.D.2d 100, 103 [2d Dept. 1996]). The plaintiffs argument that she would not have ignored the hernia and "simply taken painkillers for 4 weeks' had she been informed of the hernia's existence is insufficient (Affirmation in Opposition, ¶29).
For all of these reasons, the defendants' motion is granted in its entirety.
This constitutes the decision, and order of this Court.