Opinion
June 16, 2005.
The following papers, numbered 1 to 3 were read on this motion to/forSummary judgement
Papers Numbered Notice of Motion /Order to Show Cause — Affidavits — Exhibits 1 Answering Affidavits — Exhibits 2 Replying Affidavits 3
Cross-Motion: ___ Yes ___ NoUpon the foregoing papers, it is ordered that this motion is decided in accordance with the accompanying memorandum.
Motion sequence numbers 02, 03, 05 and 06 are hereby consolidated for disposition.
In motion sequence number two, pursuant to CPLR 3212, defendant Mount Sinai Medical Center ("Mount Sinai") moves for summary judgment dismissal of the action commenced by plaintiffs Kathleen Polcari ("Mrs. Polcari") and Michael Polcari ("Mr. Polcari"). Plaintiffs oppose this motion.
In motion sequence number three, pursuant to CPLR 3212, defendants Peter Dottino, M.D. ("Dr. Dottino") and The Medical Group for Women, P.C. ("Med. Group") move for summary judgment dismissal of plaintiffs' action. Plaintiffs oppose this motion.
In motion sequence numbers five and six, plaintiffs move to compel Dr. Dottino and Mount Sinai to produce: the video of Mrs. Polcari's operation; all operating room logs for May 4, 2000; all records of disciplinary actions and investigations involving Dr. Dottino; all insurance bills submitted by Dr. Dottino for the operation; all cell phone records of Dr. Dottino for May 4, 2000; and, the "Steely Dan" compact disc that Dr. Dottino listened to during surgery. Defendants oppose these motions and Dr. Dottino and Med. Group cross-move for an order assessing costs and sanctions on plaintiffs for bringing this motion. Plaintiffs oppose the cross-motion.
Background
On May 26, 1998, Mrs. Polcari first presented to Dr. Dottino, a gynecologist, complaining of fibroids and urinary frequency. Mount Sinai's Affirmation in Support of Motion ("Aff. 02"), at ¶ 6. Dr. Dottino performed a pelvic examination and found that Mrs. Polcari had multiple fibroids of concerning size. Id. He wrote in the medical chart that he discussed the risks, benefits and options of treatment with Mrs. Polcari and advised her to have a sonogram. Id.
Mrs. Polcari returned to Dr. Dottino's office on January 12, May 5 and October 22, 1999 and had ultrasounds on April 21 and 27, 1999. Aff. 02, at ¶¶ 8, 9. A subsequent October 1999 ultrasound revealed that Mrs. Polcari had a large, but stable myomatous myoma (muscle tumor in the uterine wall). Id. Additionally, Dr. Dottino performed a pelvic examination, which revealed that Mrs. Polcari's uterus was the size of a fourteen-week-pregnant woman's uterus and that it was pushing into her rectum. Aff. 02, at ¶ 8.
On March 30, 2000, Mrs. Polcari had another ultrasound, which revealed a large myomatous uterus and a pedunculated myoma that had increased in size since the last ultrasound. Aff. 02, at ¶ 11. Dr. Dottino, thus, recommended surgery. Id.
On April 5, 2000, Mrs. Polcari saw Dr. Dottino for a pre-operation consultation. Aff. 02, at ¶ 11. Dr. Dottino avers that he told Mrs. Polcari that she had a growing fibroid and discussed with her the risks of and alternatives to surgery. Id. By contrast, Mrs. Polcari alleges that Dr. Dottino never informed her of alternatives to a hysterectomy such as a myomectomy or embolization and states, "I would never have opted for this devastating procedure had I been properly advised by Dr. Dottino that these alternative procedures were appropriate ****." Mrs. Polcari's Affirmation in Opposition ("Opp."), at ¶¶ 10-11. Furthermore, she claims that Dr. Dottino never advised her of the risk of sexual side effects and that Dr. Dottino promised her that he could preserve her ovaries and that he would personally perform the surgery with his partner Dr. Segna. Opp., at ¶¶ 51, 56.
On May 4, 2000, Mrs. Polcari presented to Mount Sinai for a supracervical hysterectomy. Aff. 02, at ¶ 12. She claims that once she arrived at the hospital, she had to wait for seven hours before a nurse would see her. Opp., at ¶ 3. She also alleges that before surgery, she complained of chest pain but no chest x-ray was performed and she was not physically examined or given a pregnancy test. Opp., at ¶ 8.
With regard to informed consent, Mrs. Polcari alleges that a nurse presented her with an informed consent form to sign, which was a standard hospital consent form and not the special hysterectomy form that New York State requires. Opp., at ¶ 7. Furthermore, she contends that no witness signed the form that she was coerced into signing. Opp., at ¶¶ 6, 7. Additionally, Mrs. Polcari claims that she never consented to conization of her cervix. Opp., at ¶ 9.
On the afternoon of May 4, 2000, Dr. Dottino performed a hysterectomy on Mrs. Polcari with the assistance of an oncology fellow, Peter Agenta, M.D. ("Dr. Agenta") and a gynecological resident, Tracy Shevelle, M.D. ("Dr. Shevelle"). Aff. 02, at ¶ 12. Dr. Shevelle signed the operative report; Dr. Dottino did not. Aff. 03, Ex. C, at 16. According to the report, Mrs. Polcari's ovaries were retained and she returned to the recovery room in satisfactory condition. Aff. 02, at ¶ 12.
The day after surgery, according to the medical records, Mrs. Polcari was stable and afebrile. Aff. 02, at ¶ 13. Mrs. Polcari, however, alleges that she was unable to urinate, eat or drink, and that she was in severe pain. Opp., at ¶¶ 19, 20. She was discharged from Mount Sinai on May 7, 2000 in stable condition. Id.
On May 12, 2000, Mrs. Polcari returned to Dr. Dottino's office for a follow-up visit, complaining of vertigo, sexual dysfunction and hormonal shock. Opp., at ¶ 21. In August of 2000, Mrs. Polcari alleges that she called Dr. Dottino's office, at which time Dr. Segna, Dr. Dottino's partner, told her that Drs. Shevell and Argenta had performed the surgery, not Dr. Dottino. Opp., at ¶ 22.
In this medical malpractice action commenced on December 10, 2001, plaintiffs claim that defendants negligently chose to perform a supracervical hysterectomy on Mrs. Polcari when a less invasive procedure was indicated; allowed the surgery to be performed by untrained residents; negligently performed the surgery; over-sedated her; failed to sign the operative report; and, failed to obtain her informed consent. Aff. 02, at ¶ 15. As a result of this negligence, Mrs. Polcari claims that she suffers from post-traumatic stress disorder, sexual dysfunction, multiple sclerosis, bladder incontinence, sharp abdominal pains and low back pain. Id.
Mount Sinai now moves for summary judgment dismissal of plaintiffs' action, arguing that it did not depart from accepted standards of medical care in treating Mrs. Polcari and that it is not vicariously liable for the alleged negligence of Mrs. Polcari's private attending doctor, Dr. Dottino. Aff. 02, at ¶ 19. It relies on the deposition transcript of Dr. Dottino, who testified: "I do the surgery;" the resident's and fellow's roles in the surgery were "holding things while I worked." Aff. 02, Ex. H, at 99, 100. Furthermore, Mount Sinai argues that it had no duty to inform Mrs. Polcari of the risks and alternatives to surgery because that was Dr. Dottino's responsibility. Aff. 02, at ¶ 21.
In further support of its motion, Mount Sinai submits the affirmation of Leonard A. Benedict, M.D. ("Dr. Benedict"), a physician board-certified in obstetrics and gynecology. Aff. 02, Ex. A, at ¶ 1. After review of all the medical records and testimony in this case, Dr. Benedict opines to a reasonable degree of medical certainty that Mount Sinai and its employees did not depart from accepted standards of medical care in treating Mrs. Polcari. Aff. 02, Ex. A, at ¶ 3. Specifically, Dr. Benedict opines that the hospital had no duty to obtain Mrs. Polcari's informed consent and that the records reveal that Dr. Dottino properly informed Mrs. Polcari of the risks of the procedure. Aff. 02, Ex. A, at ¶ 4. Additionally, Dr. Benedict concludes that Dr. Dottino performed the surgery, discharged Mrs. Polcari and directed her post-operative care and that the hospital staff only worked under his direction. Aff. 02, Ex. A, at ¶ 5. Finally, he finds that the notes entered by Mount Sinai staff members were thoughtful and complete and did not constitute a departure from accepted standards of medical care. Aff. 02, Ex. A, at ¶ 6.
Dr. Dottino and Med. Group also move for summary judgment dismissal. Aff. 03, at ¶ 2. They rely on the affirmation of Steven J. Milim, M.D. ("Dr. Milim"), a physician specializing in obstetrics and gynecology. Dr. Milim's Affirmation ("Milim Aff."), at ¶ 1. Dr. Milim opines to a reasonable degree of medical certainty, after review of all the medical records and testimony in this case, that Dr. Dottino did not depart from accepted standards of medical care in treating Mrs. Polcari. Milim Aff., at ¶ 4. Specifically, Dr. Milim concludes that before the surgery, Dr. Dottino fully discussed with Mrs. Polcari the alternatives to and risks of a hysterectomy, including the risk of sexual dysfunction. Milim Aff., at ¶¶ 11, 27. Furthermore, he opines that Dr. Dottino appropriately recommended a hysterectomy to Mrs. Polcari given the size of her fibroids, her urinary frequency, and the size of her uterus. Milim Aff., at ¶ 24. He also concludes that Dr. Dottino properly performed the hysterectomy and that none of Mrs. Polcari's injuries were proximately cause by any negligence of Dr. Dottino. Milim Aff., at ¶¶ 37, 42, 43. Finally, Dr. Milim opines that Dr. Dottino provided sound post-operative care to Mrs. Polcari that Dr. Dottino in no way caused or contributed to Mrs. Polcari's alleged injuries. Milim Aff., at ¶ 44.
Plaintiffs oppose this motion, arguing that defendants departed from accepted standards of medical care in treating Mrs. Polcari. They rely on the affirmation of Barbara Bartlik, M.D. ("Dr. Bartlik"), a psychiatrist certified by the American Board of Sexologists. Opp., Ex. G, at ¶ 1. Dr. Bartlik, however, fails to state her familiarity with the record in this case, and merely opines that Mrs. Polcari experienced loss of sexual desire and depression after her hysterectomy. Opp., Ex. G, at ¶ 5. She does not conclude that defendants departed from accepted standards of medical care or that their negligence proximately caused Mrs. Polcari's injures. See generally, Opp., Ex. G.
Plaintiffs also submit the affirmation of Saul Jeck, D.O., FACOOG ("Dr. Jeck"), a physician board-certified in Obstetrics and Gynecology who is only licensed to practice in Pennsylvania. Affirmation of Dr. Jeck ("Jeck Aff."), at ¶ 1. Dr. Jeck concludes to a reasonable degree of medical certainty, after review of all the medical records and testimony in this case, that defendants departed from accepted standards of medical care in treating Mrs. Polcari. Jeck Aff., at ¶ 8. In particular, Dr. Jeck opines that defendants failed to obtain Mrs. Polcari's informed consent because there was a chaotic environment when she signed the form, it was not witnessed, and Dr. Dottino did not discuss the risks of the procedure with her prior to signing. Jeck Aff., at ¶ 7. Dr. Jeck does not state, however, that defendants negligently recommended or performed the hysterectomy or that their negligence proximately caused Mrs. Polcari's injuries. See generally, Jeck Aff.
Analysis
Summary judgment is a "drastic remedy" that should not be granted if there is any doubt as to the existence of a triable issue. Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978); see also Greenidge v. HRH Constr. Corp., 279 A.D.2d 400, 403 (1st Dep't 2001); DuLuc v. Resnick, 224 A.D.2d 210, 211 (1st Dep't 1996). Indeed, because summary disposition serves to deprive a party of its day in court, relief should not be granted if an issue of fact is even "arguable." Henderson v. City of New York, 178 A.D.2d 129, 130 (1st Dep't 1991).
Further, "on a defendant's motion for summary judgment, opposed by plaintiff, [the court is] required to accept the plaintiff's pleadings, as true, and [its] decision 'must be made on the version of the facts most favorable to [plaintiff].'" Byrnes v. Scott, 175 A.D.2d 786, 786 (1st Dep't 1991).
The proponent of a summary judgment motion has the burden of making a prima facie showing of entitlement to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Once the movant has made this showing, the burden then shifts to the opponent of summary judgment to establish, through competent evidence, that there is a material issue of fact that warrants a trial. Alvarez v. Prospect Hosp., 68 N.Y.2d, at 324.
In a medical malpractice action, the opponent of summary judgment must present evidence that defendant physician departed from good and accepted medical practice, Lyons v. McCauley, 252 A.D.2d 516 (2nd Dep't 1998), and that defendants' wrongful conduct proximately caused plaintiff's injuries. Hoffman v. Pelletier, 6 A.D.3d 889 (3rd Dep't 2004); Hanley v. St. Charles Hosp. and Rehabilitation Ctr., 307 A.D.2d 274 (2nd Dep't 2003). This evidence must generally be adduced through an expert affidavit. Chase v. Cayuga Med. Ctr., 2 A.D.3d 990 (3rd Dep't 2003).
Furthermore, this affidavit must be in admissible form. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Barbour v. Knecht, 296 A.D.2d 218, 227 (1st Dep't 2002) (failure to submit affidavit in admissible form or explain failure to do so is grounds for granting summary judgment); Chase v. Cayuga Medical Center, 2 A.D.3d 990 (unsworn letters of out-of-state doctors are not admissible, and therefore, insufficient to defeat motion for summary judgment); Burt v. Lenox Hill Hosp., 141 A.D.2d 378 (1st Dep't 1988); Hoffman v. Pelletier, 6 A.D.3d 889. In addition, the expert must reach conclusions with a "reasonable degree of medical certainty", though that exact language need not be used for the affidavit to be admissible. Matott v. Ward, 48 N.Y.2d 455 (1979); Nurik v. Ollstein, 231 A.D.2d 458 (1st Dep't 1996). Finally, the expert must state familiarity with the appropriate standards of conduct. Fridovich v. David, 208 A.D.2d 1004 (3rd Dep't 1994).
If the nonmovant submits an admissible affidavit from a competent expert showing the existence of a triable issue of fact as to whether defendants were negligent, the summary judgment motion must be denied. See, Cooper v. St. Vincent's Hosp., 290 A.D.2d 358 (1st Dep't 2002); Dellert v. Kramer, 280 A.D.2d 438 (1st Dep't 2001); Morrison v. Altman, 278 A.D.2d 135 (1st Dep't 2000); Avacato v. Mount Sinai Med. Ctr., 277 A.D.2d 32 (1st Dep't 2000).
An affidavit that is merely conclusory and does not establish a departure and causation is insufficient to defeat a defendant's motion for summary judgment. Chase v. Cayuga Med. Ctr., 2 A.D.3d 990, Burt v. Lenox Hill Hosp., 141 A.D.2d, at 380; Hoffman v. Pelletier, 6 A.D.3d 889; Torns v. Samaritan Hosp., 305 A.D.2d 965, 966 (3rd Dep't 2003); see also, Schoelkopf v. St. Vincent's Hosp., 222 A.D.2d 311 (1st Dep't 1995); Spaeth v. Goldberg, 248 A.D.2d 704 (2nd Dep't 1998). A conclusory affidavit is one that is unsupported by competent evidence tending to establish the essential elements of medical malpractice or one that fails to refer to the medical record. Burt v. Lenox Hill Hosp., 141 A.D.2d, at 380; James v. Crystal, 267 A.D.2d 429, 430 (2nd Dep't 1999).
Dr. Dottino
Provision of medical care
With respect to the issue of whether Dr. Dottino negligently performed surgery on Mrs. Polcari or negligently provided her post-operative care, both Dr. Dottino and plaintiffs have submitted expert medical evidence to support their respective conflicting positions. The affidavit of plaintiffs' experts, Drs. Bartlik and Jeck, however, are not sufficient to rebut Dr. Dottino's motion for summary judgment for several reasons.
First, Dr. Bartlik, Mrs. Polcari's psychiatrist, merely opines that Mrs. Polcari developed depression and sexual dysfunction after the hysterectomy. Opp., Ex. G, at ¶ 5. She does not conclude that defendants departed from accepted standards of care. Therefore, her affirmation is deficient and utterly insufficient to defeat defendants' motions for summary judgment.
Additionally, Dr. Jeck's affirmation is insufficient to defeat defendants' showing of entitlement to summary judgment as a matter of law because it does not comply with CPLR 2106 ("Affirmation of truth of statement by attorney, physician, osteopath or dentist"), which only authorizes use of an affirmation by a physician authorized to practice in New York. Professor Alexander makes clear in his practice commentary that the "substitution of an affirmation for a sworn affidavit is allowed only when the attorney, physician, dentist or osteopath: (1) is licensed in New York; (2) is not a party in the action in which the affirmation is submitted; and (3) actually signs the statement." Alexander, Practice Commentaries (McKinney's Cons Law of NY, Book 7B, CPLR 2106).
Dr. Jeck is not licensed in New York. Therefore, his unsworn affirmation is inadmissible and cannot be considered by the Court. Chase v. Cayuga Medical Center, 2 A.D.3d 990 (unsworn letters of out-of-state doctors are not admissible, and therefore, insufficient to defeat motion for summary judgment).
Furthermore, even if the Court were to consider Dr. Jeck's affirmation, it is not sufficient to defeat summary judgment because it is merely conclusory. Chase v. Cayuga Med. Ctr., 2 A.D.3d 990, Burt v. Lenox Hill Hosp., 141 A.D.2d, at 380; Hoffman v. Pelletier, 6 A.D.3d 889; Torns v. Samaritan Hosp., 305 A.D.2d, at 966); see also, Schoelkopf v. St. Vincent's Hosp., 222 A.D.2d, at 311; Spaeth v. Goldberg, 248 A.D.2d, at 704. Dr. Jeck opines that Dr. Dottino departed from accepted standards of care, but goes on to find only lack-of-informed-consent departures; he makes no conclusion that the surgery was performed inappropriately. See, Jeck Aff., at ¶ 7. He does not state that Dr. Dottino's failures were the proximate cause of Mrs. Polcari's injuries. See, Opp., Ex. A; see, e.g., Margolese v. Uribe, 238 A.D.2d 164, 167 (1st Dep't 1997) (plaintiffs failed to demonstrate that defendants' treatment was the proximate cause of the injury; other potential causes were not addressed); Koeppel v. Park, 228 A.D.2d 288 (1st Dep't 1996) (even if defendant doctor deviated from accepted practice as alleged by plaintiff, there was no causal nexus to injury); Ferrara v. South Shore Orthopedic Assoc., P.C., 178 A.D.2d 364, 366 (1st Dep't 1991) (no record evidence that malpractice caused the injury alleged).
Finally, Mrs. Polcari's briefs are insufficient to rebut defendants' motion for summary judgment because they are unsworn and she is not a medical expert. See, Barbour v. Knecht, 296 A.D.2d, at 227 (failure to submit affidavit in admissible form or explain failure to do so is grounds for granting summary judgment); Neuman v. Greenstein, 99 A.D.2d 1018 (1st Dep't 1984) ("At least some statement of medical expertise in rebuttal was required in order to defeat defendant's motion for summary judgment"); see also, Zuckerman v. City of New York, 49 N.Y.2d 557; Fridovich v. David, 208 A.D.2d 1005; Burt v. Lenox Hill Hosp., 141 A.D.2d 378; Hoffman v. Pelletier, 6 A.D.3d 889.
Because Mrs. Polcari's submissions are plainly insufficient, this Court must grant Dr. Dottino summary judgment to as to the issue of whether he negligently rendered medical care. Informed Consent
Public Health Law § 2805-d states that lack of informed consent "means the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved ***." The statute further requires a plaintiff to establish that a reasonably prudent person in the patient's position "would not have undergone the treatment or diagnosis" upon being — or having been — fully informed. Public Health Law § 2805-d; see also, Benfer v. Sachs, 3 A.D.3d 781, 782-83 (3rd Dep't 2004); Dunlop v. Sivaraman, 272 A.D.2d 570 (2nd Dep't 2000); Hylick v. Halweil, 112 A.D.2d 400, 401 (2nd Dep't 1985).
Here, Dr. Dottino submits the affirmation of Dr. Milim, who concludes that Dr. Dottino properly informed Mrs. Polcari of the risks, complications and limitations of surgery. Aff., Ex. K, at ¶ 7. Furthermore, Dr. Dottino submits the consent form that Mrs. Polcari signed prior to surgery, which states, "Dr. Argenta has fully explained to me *** the benefits, risks and possible complications, as well as the possible alternatives to the proposed treatment(s)/operation(s)/procedure(s)." Aff. 03, Ex. C, at 5.
In response, Mrs. Polcari concedes that she signed this form, but claims that Dr. Dottino promised to perform the surgery himself with his partner Dr. Segna, did not inform her that it might result in loss of sexual functioning, and failed to obtain her consent before performing a cervical conization. Aff. 03, Ex. D, at 94-95. Nevertheless, she submits no admissible expert evidence to support the claim that these actions constituted departures from accepted standards of medical care. The affidavit of Dr. Jeck is wholly inadmissible and Dr. Bartlik does not address Mrs. Polcari's informed consent claim.
Additionally, Mrs. Polcari claims that Public Health Law §§ 2495 to 2499 provide that doctors must obtain a patient's signature on a special informed consent form before performing a hysterectomy. Opp., at ¶ 28. Upon review of Public Health Law §§ 2495 to 2499, however, the law contains no such requirement. Public Health Law § 2498 merely provides that a physician must provide a patient considering a hysterectomy with a summary of the risks of and alternatives to the procedure.
Finally, Mrs. Polcari's argument that Dr. Dottino departed from accepted standards of medical care because he failed to follow Mount Sinai's manual, which requires a separate consent form for hysterectomies, must fail. The copy of the manual that Mrs. Polcari submits is irrelevant because it has a copyright date of 2004 and she submits no evidence to prove that the manual was in place at the time of Mrs. Polcari's operation. Additionally, Mrs. Polcari submits no admissible expert evidence to conclude that failure to follow that manual was a departure from accepted standards of medical care.
In the end, Dr. Dottino has demonstrated his prima facie entitlement to judgment as a matter of law with respect to plaintiffs' lack of informed consent claim and plaintiffs have not sufficiently rebutted that claim. Therefore, Dr. Dottino's motion for summary judgment is granted and plaintiffs' lack of informed consent claim is dismissed as to Dr. Dottino.
Mount Sinai
Because the action against Dr. Dottino is being dismissed, any claims of vicarious liability against Mount Sinai must also be dismissed.
With regard to plaintiffs' claim that Mount Sinai independently departed from accepted standards of medical care through the actions of its staff, it is well-settled that when a hospital staff member follows the orders of a private physician, the hospital is not liable unless the doctor's orders are clearly contraindicated. Walter v. Betancourt, 283 A.D.2d 223, 224 (1st Dep't 2001); Filippone v. St. Vincent's Hosp., 253 A.D.2d, at 618; see also, Soto v. Andaz, 8 A.D.3d 470, 471 (2nd Dep't 2004). A hospital, moreover, will not be held liable for actions of a resident or its staff taken under the direction of a private physician unless the actions were the exercise of an independent medical judgment. Buchheim v. Sanghavi, 299 A.D.2d 229, 230 (1st Dep't 2002); Soto v. Andaz, 8 A.D.3d, at 471.
Here, Mount Sinai has submitted expert medical evidence sufficient to support its position that Mount Sinai, through its staff and residents, acted under the direction of Dr. Dottino and did not independently depart from accepted standards of medical care. Plaintiffs have submitted no admissible expert evidence or testimony controverting this position. Because Mount Sinai has demonstrated its prima facie entitlement to judgment as a matter of law and plaintiffs have submitted nothing to rebut this claim, Mount Sinai's motion for summary judgment must be granted.
Motions to Compel
Plaintiffs motions to compel are denied as moot because the action is dismissed.
Accordingly, it is
ORDERED that defendants' motions for summary judgment are granted. The Clerk is directed to enter judgment accordingly; and it is further
ORDERED that plaintiffs' motions to compel are denied as moot.
This constitutes the Decision and Order of the Court.