Opinion
Index No. 804665/2018
08-10-2022
Norman J. MACHYNSKI and Carol Machynksi, Plaintiffs, v. Ephraim S. ATWAL, M.D., Amarjit S. Atwal, M.D., Calogera Mendola, O.D., Atwal Eye Care, Buffalo Eye Care Associates, Defendants.
For Plaintiffs: Burgio, Curvin & Banker For Defendant Calogera Mendola, O.D.: Brown, Gruttadaro & Prato, LLC For Defendant Ephraim S. Atwal, M.D., Atwal Eye Care, and Buffalo Eye Care Associates: Roach, Brown, McCarthy & Gruber, PC
For Plaintiffs: Burgio, Curvin & Banker
For Defendant Calogera Mendola, O.D.: Brown, Gruttadaro & Prato, LLC
For Defendant Ephraim S. Atwal, M.D., Atwal Eye Care, and Buffalo Eye Care Associates: Roach, Brown, McCarthy & Gruber, PC
John B. Licata, J. Defendants, Ephraim S. Atwal, M.D., Atwal Eye Care, and Buffalo Eye Care Associates ("Atwal"), by their attorneys, Roach, Brown, McCarthy & Gruber, PC, having moved this Court for an Order pursuant to CPLR § 3212 dismissing plaintiffs’ complaint, and said Motion having been opposed by plaintiffs, Norman J. Machynski and Carol Machynski, by their attorneys, Burgio, Curvin & Banker; and
Defendant, Calogera Mendola, O.D., by her attorneys, Brown, Gruttadaro & Prato, LLC having moved this Court for an Order pursuant to CPLR § 3212 dismissing plaintiffs’ complaint, and said Motion having been opposed by plaintiffs, by their attorneys Burgio, Curvin & Banker; and
NOW, upon the notice of motion of defendants Atwal, dated January 4, 2022, the Affirmation of J. Mark Gruber, Esq., dated January 4, 2022, with Exhibits A through E attached thereto, the Affidavit of Ephraim S. Atwal, M.D., sworn to on January 4, 2022, and the Reply Affirmation of J. Mark Gruber, Esq., sworn to on March 15, 2022, all submitted in support of the motion of defendants Atwal; and UPON the notice of motion of defendant Mendola, dated January 3, 2022, the Affirmation of Michael T. Houck, Esq., sworn to on January 3, 2022, with Exhibits A through W attached thereto, the Affidavit of Calogera Mendola, O.D., sworn to on December 17, 2021, and the Reply Affidavit of Michael T. Houck, Esq., sworn to on March 29, 2022, all submitted in support of the motion of defendant Mendola; and
UPON the Affirmation in opposition of Hilary C. Banker, Esq., dated March 9, 2022, with Exhibits A through D attached thereto, including Plaintiffs’ expert's Affidavit sworn to on March 9, 2022, all submitted in opposition to the motion of defendants Atwal; and
UPON the Affirmation in Opposition of Hilary C. Banker, Esq., dated March 9, 2022, with Exhibits A through D attached thereto, including plaintiffs’ expert's Affidavit sworn to on March 9, 2022, all submitted in opposition to the motion of defendant Mendola; and the motions having regularly come on to be heard,
This court, having reviewed the above documents and exhibits [NYCEF documents 68 through 120, excepting 95, 105, 111, 117], relies upon the Appellate Division, Fourth Department decision of ( Abbotoy v. Kurss, 52 A.D.3d 1311, 860 N.Y.S.2d 364 [4th Dept. 2008] ) to address the core issue whether it is proper to permit a motion for summary judgment to dismiss theories of negligence contained in a verified bill of particulars in a medical malpractice action while not dismissing any cause of action of the complaint. The court holds that it is not proper to prune the amplification of pleadings contained in a bill of particulars in denying the respective motions by defendants.
In relevant part, plaintiff Norman Machynksi, a long-time patient of defendants, presented to defendants for treatment of his eye on September 20, 2016, with a chief complaint of blurry vision for which he had to use a magnifying glass with his glasses to read. He was diagnosed with age-related cataracts and underwent cataract surgery on October 19, 2016. [NYCEF Doc No. 93]
Per note of November 3, 2016: "Dr. Atwal examined the eye and determined the surface of the eye has alot [sic] of errorosion [sic] causing goreighn [sic] sensation and anisometropia" [defined as a condition where the two eyes have different refractive power so that the corrective lenses in glasses are not identical]. PTK was performed on November 10, 2016. On November 12, 2016, plaintiff's condition was described as possible endophthalmitis of the right eye. After a series of examinations, by January 13, 2017, plaintiff was diagnosed with a MRSA infection by Ramakrishna Ratnakaram, M.D.
Plaintiff's complaint alleges defendants were negligent by, among other things, failing to timely diagnose an infection, performing a contraindicated phototherapeutic keratectomy in an infected eye, and failing to properly treat an opthalmological infection resulting in severe and irreversible damage to plaintiff's eye. Defendants summarily deny that any of their actions or omissions constitute negligence.
Defendants have met their burden of presenting their own affidavits, one by Dr. Atwal and one by Dr. Mendola, which, unsurprisingly, declare they did not deviate from the standard of care. Taken at face value, the affidavits meet the threshold of establishing that they performed their medical care in accordance with accepted practices based upon the assertions that their diagnoses were correct at the time they were made.
Plaintiffs submitted an affidavit of a medical doctor who is an ophthalmologist certified by the American Board of Opthalmology. The expert reviewed all the relevant medical records including those of Atwal Eye Care and Buffalo Ambulatory Surgery Center, and reviewed the deposition transcripts of Dr. E. Atwal, Dr. Mendola, Dr. A. Atwal, Dr. Milella, Dr. Freitag, and Dr. Leiber (all of whom were physicians who provided care to plaintiff). Plaintiffs’ expert expressed the opinion that defendants were negligent in, among other things, failing to properly follow-up with the patient, provide extra strength antibiotic drops, perform cultures, and provide daily care and treatment. The expert provided a sufficient foundation for his opinion in reviewing the medical records and medical testimony respecting the care and treatment provided to plaintiff to form the basis of his medical opinion. Plaintiff's medical expert opined that the standard for performing a PTK surgery on an "eye that was still healing" was a breach of the standard of care that led to plaintiff's ulcerated cornea by making the surface of the cornea worse. [NYCEF Doc No. 116] Such an affidavit is not conclusory, it does adequately set forth the basis for his opinion that there was a deviation from the accepted standard of practice and establishes that the deviation caused injury to plaintiff Norman Machynski. In this respect, we have a "battle of the experts" properly left for the jury. (see Nowelle B. v. Hamilton Med., Inc., 177 A.D.3d 1256, 1258, 110 N.Y.S.3d 475 [4th Dept. 2019] ; Mason v. Adhikary , 159 A.D.3d 1438, 1439, 73 N.Y.S.3d 691 [4th Dept. 2018] ).
CPLR §§ 3212, 3042, 3043, et al.
It is well-established that the "purpose of a bill of particulars is to amplify the pleadings; it is not a discovery device" ( Sager v. Rochester General Hospital , 170 A.D.2d 949, 949, 566 N.Y.S.2d 122 [4th Dept. 1991] ). "Those items which seek particularization of usual and accepted standards, as well as those demanding what advice, diagnosis or treatment should have been made or given, call for expert testimony and are purely evidentiary" ( McKenzie v. St. Elizabeth Hospital, 81 A.D.2d 1003, 1003, 440 N.Y.S.2d 109 [4th Dept. 1981] ). If a demand requires expert opinion, such demand is improper as the Appellate Division, Fourth Department observed in a products liability claim in which plaintiff alleged a defect in a forklift, "[we] know of no authority, and defendant cites none, to require a party to hire an expert to respond to a demand for a bill of particulars" ( Nuss v. Pettibone, 112 A.D.2d 744, 492 N.Y.S.2d 240 [4th Dept. 1985] ).
Regarding medical malpractice actions, the Appellate Division, Fourth Department reiterated the principle by quoting ( Cirelli v. Victory Mem. Hosp. , 45 A.D.2d 856, 856, 358 N.Y.S.2d 537 [2d Dept. 1974] ): " ‘[we] apprehend no beneficial reason to put the plaintiff in a malpractice action (who most often is less likely than the defendant to have knowledge of proper "surgical procedures," "medicines" and "tests") to a greater burden than plaintiffs in other types of personal injury actions’ " ( Garrett v. Community Gen. Hosp. of Greater Syracuse , 288 A.D2d 928, 929, 732 N.Y.S.2d 604 [4th Dept. 2001] citing Randall v. Pech , 51 A.D.2d 864, 865, 380 N.Y.S.2d 172 [4th Dept. 1976] ).
The statute is straightforward in that CPLR § 3043 (a) (3) permits a party to demand a "general statement of the acts or omissions constituting the negligence claimed." The scope of the general nature of the statement has been found to include the "boilerplate reference to ‘other’ acts of negligence is routine pleading practice and is not prejudicial to defendant." ( Sager v. Rochester Gen. Hosp., 170 A.D.2d at 949, 566 N.Y.S.2d 122 ). Through CPLR § 3403 (b) a party may serve a supplemental bill of particulars to provide additional special damages and disabilities but is forbidden from inserting a new cause of action. It is widely understood that statutory interpretation is to assign the plain meaning to words used, and as may be defined within the legislation itself. CPLR §§ 103 (a), (b), 104, 105 (b), and 201, to name a few, invoke the term "action" to refer to a cause of action through which a party brings a lawsuit. CPLR § 3014 establishes, in part, that "[s]eparate causes of action or defenses shall be separately stated and numbered and may be stated regardless of consistency." Pursuant to CPLR § 3025 (c) pleadings may to be amended before or after judgment to conform to the evidence presented, often referenced as conforming the pleadings to the proof. CPLR § 3026 directs that "[p]leadings shall be liberally construed" and defects ignored if no prejudice results therefrom [emphasis supplied].
CPLR § 3212 (b) limits a motion for summary judgment to causes of action, not theories of liability or as a means to eliminate testimony in the guise of an ersatz motion in limine. Relief can be granted, in whole or in part, resolving negligence or proximate cause if no issue of material fact exists under CPLR 3212 (e), or to ascertain facts not in dispute before trial under CPLR § 3212 (g). The CPLR tacitly recognizes that a pleading drafted at the beginning of a case may not precisely align with the proof at trial nor need it explicitly state theories of negligence "where such proof necessarily flows from the information conveyed in the pleadings and where the defendants should have been aware of the basis thereof" ( Boyer v. Kamthan , 130 A.D.3d 1176, 1178, 13 N.Y.S.3d 653 [3d Dept. 2015] ; see Frattura v. Cozzolino Constr. Corp., 63 A.D.2d 1098, 1099, 406 N.Y.S.2d 592 [3d Dept. 1978] ). Courts have a duty to avoid conflating a verified bill of particulars with expert disclosure under CPLR § 3101 to create a pleading that is then imposed as a straightjacket requiring a layperson to provide explicit allegations of negligence instead of providing information from which defendants could have reasonably anticipated the proof offered at trial.
Theories of negligence are not causes of action. In this action, plaintiff has not alleged separate or new causes of action in the verified bill of particulars. Plaintiff has provided a general statement of the acts or omissions regarding the allegations of negligence against defendants by offering a layperson's understanding of defendants’ acts or omissions. These theories of liability are not causes of action in the same manner that they would not properly be separately stated causes of action in a complaint. If a plaintiff provides specific allegations of negligence beyond the general amplifications of the complaint, then those specific allegations should not be the basis of motion by defendant seeking summary judgment. The rigid application of the CPLR has created the anomaly that while the CPLR explicitly permits amendments to pleadings up to and during trial, it apparently encases pleadings in amber upon the filing of a motion for summary judgment. Given that the nature of pleading practice in the State of New York is to prevent the extreme remedy of dismissal of a complaint or striking an answer when there is no prejudice visited upon the opposing party or when the facts and pleadings provide a basis for a reasonable understanding of the evidence to be submitted at trial, expanding the scope of a motion for summary judgment beyond dismissal of a cause of action is to be resisted.
These motions seek to expand the reach of a motion for summary judgment beyond the limits set forth in the CPLR and use it with an expert affidavit as a tool to restrict expert testimony at trial instead of establishing facts or eliminating causes of action. This is an improper application of summary judgment on a document it was never meant to embrace. The efforts to attack a general statement of negligence contradict the fundamental fact that to withstand a motion for summary judgment the opposition need establish a question of fact, not select a trial strategy to which they shall adhere contrary to the precepts of CPLR §§ 3025 and 3026.
It is hereby,
ORDERED, that the motion on behalf of defendants Ephraim S. Atwal, M.D., Atwal Eye Care and Buffalo Eye Care Associates, pursuant to CPLR § 3212 dismissing plaintiffs’ complaint is denied in its entirety; and it further
ORDERED, that the motion on behalf of defendant Calogera Mendola, O.D., pursuant to CPLR § 3212 dismissing plaintiffs’ complaint is denied in its entirety.