Opinion
Index No. 1720/2020 Mot. Seq. No. 2
01-11-2024
IRAIDA POBEREZI1NAYA, as Administratrix of the Estate of VLADISLAV POBEREZHNYY, Deceased, Plaintiff, v. QUENTIN MEDICAL, PC and MIKHAIL BERNSHTEYN, M.D., Defendants.
Unpublished Opinion
At an I.A.S. Trial Term, Part 80 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, located at 360 Adams St. Borough of Brooklyn, State of New York, on the 11th day of January 2024.
PRESENT: HON. GENINE D. EDWARDS, J.S.C.
DECISION & ORDER
GENINE D. EDWARDS, J.S.C.
Recitation. as required by CPLR § 22 l 9(a), of the papers considered in the review of this motion are as follows:
Papers: NYSCEF Document Nos.
Notice of Motion, Affim1ations, Memo of Law, and Exhibits ............................ 12-27
Answering Affim1ations ....................................................................... 29-31
Reply Affirmation ............................................................................... 33
Upon the foregoing cited papers, in this medical malpractice action, the decision/order on this motion is as follows:
The defendants moved for an Order: (a) pursuant to CPLR ~ 3212, granting summary judgment and dismissing all causes of action with prejudice; (b) directing entry of judgment in favor of the defendants; and (c) for such other and further relief as this Court deems just and proper.
Vladislav Poberezhnyy ("Decedent") presented to the defendants for treatment from 2002 until his death on January 4, 2019 (NY St Cts Elec Filing [NYSCEF] Doc. No. 25). The defendants treated decedent for~ inter alia, high cholesterol, tachycardia and high blood pressure (NYSCEF Doc. No. 25). Decedent's last visit with the defendants was on December 27, 2018 (NYSCEF Doc. No. 25).
Thereafter, decedent visited his sister, Iraida Poberezhnaya ("Plaintiff'), in Mary land on December 31,2018 (NYSCEF Doc. No. 22 at 49). While visiting, decedent had trouble ambulating due to back pain, his breathing was labored, and he was not eating much (NYSCEF Doc. No. 22 at 51). Decedent reported feeling progressively worse while in Maryland (NYSCEF Doc. No. 22 at 52). On the eve of his demise, decedent indicated that his heartbum never felt so bad (NYSCEF Doc. No. 22 at 53). Decedent went to sleep al approximately 11 pm (NYSCEF Doc. No. 22 at 65). The next morning, plaintiff discovered that the decedent died (NYSCEF Doc. No. 22 at 66).
Subsequently, an ambulance arrived and took decedent's body to be autopsied (NYSCEF Doc. No. 22 at 70). Decedent's cause of death was hypertensive atherosclerotic cardiovascular disease (NYSCEF Doc. No. 26). The manner of his death was natural (NYSCEF Doc. No. 26).
Plaintiff commenced this action on December 2,2020 (NYSCEF Doc. No. 1). The verified bill of particulars alleged defendants committed medical malpractice in. inter alia, failing to heed the various signs and symptoms that decedent was in distress, failing to order a cardiology consult, failing to order proper imaging studies, and failing to obtain decedent's informed consent (NYSCEF Doc. No. 21). The note of issue was filed on March 23, 2023 (NYSCEF Doc. No. 11). Defendants filed this motion for summary judgment on May 17, 2023 (NYSCEF Doc. No. 12).
"In moving tor summary judgment dismissing a cause of action alleging medical malpractice, a defendant must establish, prima facie, that there was no departure or deviation from the accepted standard of care or that such departure or deviation was not a proximate cause of any injury- to the plaintiff." Aflia v. Klebanov, 192 A.D.3d 650, 143 N.Y.S.3d 408 (2d Dept. 2021). "In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiffs complaint and bill of particulars." Hauler v. Lewis, 197 A.D.3d 782, 153 N.Y.S.3d 176 (2d Dept. 2021). Once the defendant makes its prima facie showing, "the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact as to the elements on which the defendant met the prima facie burden." Piazza v. NYU Hosps. Ctr., 208 A.D.3d 525, 173 N.Y.S.3d 293 (2d Dept. 2022). ''To rebut the defendant's prima facie showing, a plaintiff must submit an expert opinion that specifically addresses the defense expert's allegations." Pirri-Logan v. Pearl, 192 A.D.3d 1149, 145 N.Y.S.3d 545 (2d Dept. 2021).
Here, the defendants' submissions, in support of their motion, included defendant Dr. Bemshteyn's deposition transcript, decedent's medical records and the affirmation of the defendants' expert physician, Dr. William Slater. These submissions controverted each other.
In the verified bill of particulars, plaintiff alleges that the defendants failed to refer the decedent to a cardiologist. Defendant Dr. Bemshteyn testified that he recommended that the decedent visit a cardiologist, to no avail (NYSCEF Doc No. 23 at 43). He further testified that he usually notates any recommendations to his patients in their medical records (NYSCEF Doc No. 23 at 44). The decedent's non-compliance with respect to medication was the basis for Dr. Bemshteyn's cardiology referrals (NYSCEF Doc No. 23 at 43). Interestingly, the decedent's medical records, which span from 2002 through 2018, are devoid of notations about the cardiology recommendation and decedent's non-compliance (NYSCEF Doc No. 25). This creates an issue of credibility that must be decided by the trier of facts because Dr. Bemshteyn's self-serving statements refer to matters exclusively within his knowledge. Sacher by Sacher v. Long Island Jewish-Hillside Medical Center, 142 A.D.2d 567, 530 N.Y.S.2d 232 (2d Dept. 1988); Mendoza v. Enchante Accessories, Inc., 185 A.D.3d 675, 126 N.Y.S.3d 187 (2d Dept. 2020).
The plaintiff also alleged that the defendants neglected to order proper imaging studies for the decedent. Dr. Slater opined, in his expert affirmation in support of the defendants' motion, that the defendants were not required to order annual EKGs or further testing for the decedent because he presented with no clinical signs or symptoms of cardiac disease, including chest pain, since January 26, 2016 (NYSCEF Doc No. 16 ¶ 24). Decedent's medical records, however, list chest pain as an assessment on January 28, 2016 (NYSCEF Doc No. 25 at 46). When asked about the chest pain notation during his deposition. Dr. Bernshteyn insisted it was noted under the diagnosis section for billing purposes and not under the complaints section because the decedent did not complain of chest pain (NYSCEF Doc No. 23 at 27). However, decedent's medical records do not have a complaint section (NYSCEF Doc No. 25). Dr. Slater relied on Dr. Bemshteyn's statement regarding decedent's lack of chest pain as a basis to support his opinion that annual EKGs or further testing were not warranted (NYSCEF Doc No. 16 ¶ 22). As the defendants' expert opinion relied on a disputed fact without addressing the conflict regarding the complaint section in decedent's medical records, the defendants failed to demonstrate that they did not deviate from accepted medical practice or that such deviation was not a proximate cause of the decedent's injuries. Hiegel v Orange Regional Medical Center, 219 A.D.3d 910, 195 N.Y.S.3d 720 (2d Dept 2023).
The defendants' submissions conflicted with each other and were, thus, insufficient to establish their prima facie entitlement to summary judgment. Callahan v Guneratne, 78 A.D.3d 753, 910 N.Y.S.2d 551 (2d Dept 2010). Therefore, it is not necessary to consider the sufficiency of the opposition papers submitted by the plaintiffs. Hiegel, 219 A.D.3d 910.
However, the plaintiffs cause of action alleging lack of informed consent is unsubstantiated. Plaintiff has not alleged any unconsented-to violations of the decedent's physical integrity. Samer v. Desai, 179 A.D.3d 860, 116 N.Y.S.3d 377 (2d Dept. 2020).
Accordingly, it is
ORDERED that the branch of the defendants' motion seeking to dismiss the plaintiffs cause of action alleging lack of informed consent is granted, and it is further
ORDERED that the branch of the defendants' motion seeking to dismiss plaintiffs cause of action for medical malpractice is denied.
Any issue raised and not specifically addressed by this decision/order is denied.
This constitutes the Decision and Order of the Court.