Opinion
No. 1539/2016
12-07-2022
BESNIK SOGOJEVA, Plaintiff, v. DAVID A. STAFFENBERG, M.D., CHRISTOPHER DEMAS, M.D., KENNETH ROSE, M.D.. STATEN ISLAND UNIVERSITY HOSPITAL and RICHMOND UNIVERSITY MEDICAL CENTER, Defendants.
Unpublished Opinion
PRESENT: HON. PAMELA L. FISHER, J.S.C.
DECISION/ORDER
Pamela L. Fisher, Judge
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed.
1-2 3-6
Opposing Affidavits (Affirmations)
7-8
Reply Affidavits (Affirmations)
9, 10
Upon the foregoing papers in this medical malpractice action, defendant, David A. Staffenberg, M.D.. moves in motion sequence 13, pursuant to CPLR § 3212, for summary judgment, dismissing plaintiffs complaint against him, to sever the claims against him from the claims against the other defendants, to amend the caption to reflect his dismissal from the action, and to direct the Clerk of the Court to enter judgment in his favor. Defendants, Christopher Demas, M.D. and Staten Island University Hospital, move in motion sequence 14, pursuant to CPLR § 3212, for summary judgment. As Dr. Staffenberg's motion is unopposed, his motion for summary' judgment is granted in its entirety, and the remainder of this decision will discuss Dr. Demas' and Staten Island University Hospital's motion (motion sequence 14).
Plaintiff commenced this action by filing a summons and complaint on February 8, 2016, naming Christopher Demas. M.D.. Kenneth Rose, M.D., Staten Island University Hospital, and Richmond University Medical Center as defendants (Summons &Complaint, annexed as Exhibit B to defendants' motion papers, motion sequence 14; Defendant's Affirmation in Support ¶ 6, motion sequence 13). Issue was joined by Dr. Demas on or about March 9, 2016 (Id at ¶ 8). An amended summons and complaint were filed on or about April 22, 2016, adding David A. Staffenberg, M.D. as a defendant (Id at ¶ 6; Amended Summons &Complaint annexed as Exhibit C to defendant's motion papers, motion sequence 13). Issue was joined by Dr. Rose on or about June 22, 2016, by Staten Island University Hospital on or about October 21,2016, by Richmond University Medical Center on or about October 21.2016. and by Dr. Staffenberg on or about February 14, 2017 (Defendant's Affirmation in Support ¶¶ 7-8, motion sequence 13). In his amended complaint and bills of particulars, plaintiff alleges that Dr. Demas and Staten Island University Hospital deviated from acceptable medical practice on March 19. 2013 by "improperly perform[ing] a split calvarial bone graft to right cheek and right orbit with right lateral canthoplasty." "improper[ly]" placing hardware in right cheek," "improperly allowing a drill bit to fall onto floor of right orbit," utilizing "improper surgical technique," and "improperly fixating metal plates to the bone" (Amended Complaint ¶¶ 22-23; Verified Bill of Particulars as to Dr. Demas ¶¶ 1, 3, annexed as Exhibit F to defendant's motion papers, motion sequence 13; Verified Bill of Particulars as to Staten Island University Hospital ¶¶ 1.3, annexed as Exhibit F to defendant's motion papers, motion sequence 13). As a result of the alleged malpractice, plaintiff claims to have sustained the following injuries: "[p]ost-traumatic facial injury', deformity of right face including eyelid ectropion," the "need to undergo unnecessary' procedures by David A. Staffenberg, M.D., on June 13, 2014 and February 20, 2015 reconstructing the right face, removing hardware, placing implants and Frost sutures, old drill bit left along the right orbit. [s]evere pain and suffering, [j]aw [p]ain, inability to chew food, loss of vision, blurriness," and "loss of equilibrium"
On January 2, 2013. plaintiff "presented to Dr. Demas," a board certified plastic surgeon "for a second opinion regarding facial surgery" (Id. at ¶ 3). Dr. Demas recorded that plaintiff "underwent facial surgery about a year prior but was unhappy with his facial appearance and experienced pain from the plates" (Id.). Dr. Demas' examination of plaintiffs face "revealed that Mr, Sogojeva had a flap in the right zygomatic area, had some vertical dystopia, but no enophthalmos:" "[h]is extraocular motions were intact, and his gaze was conjugate without diplopia" (Id.). Dr. Demas noted that plaintiff "had a palpable inferior rim plate as well as palpable plate along the zygomaticofrontal suture" (Id.). Dr. Demas recorded that he "discussed surgical options with Mr. Sogojeva, including a lateral orbitotomy and a camouflage procedure" (Id.). On January 11. 2013, plaintiff returned to Dr. Demas' office for further evaluation (Id. at ¶ 4). Upon review of plaintiffs prior CAT scan and "operative (Verified Bill of Particulars as to Dr. Demas ¶ 9; Verified Bill of Particulars as to Staten Island University Hospital ¶ 9).
The following facts are not in dispute. On October 1,2011, at 3:56 a.m., plaintiff presented to the Emergency Room at Richmond University' Medical Center (RUMC). "complaining] of a head injury" (Statement of Undisputed Material Facts In Support of Motion for Summary Judgment ¶ 1, motion sequence 14). The chart indicates that plaintiff "reported that he had been punched while out drinking with his friends, resulting in skeletal damage to the right side of his face" (Id.). A CT scan was performed, and "demonstrated right orbital, maxillary' sinus, zygomatic arch, nasal and sphenoid wing fractures" (Id.). Plaintiff "was admitted to the hospital under the care of co-defendant attending Kenneth Rose, M.D. with a right facial fracture" (Id.). The records state that "Dr. Rose performed reconstructive surgery" on plaintiff on October 4, 2011. 'which included elevation of right zygomatic arch, repair of right orbital floor, close nasal reduction, application of arch bars, and repair of right maxillary sinus for right maxillary' fracture" (Id. at ¶ 2). The chart indicates that plaintiff "tolerated the procedure well, and was discharged the following day with prescriptions for Keflex and Vicodin" (Id.).
On January 2, 2013. p1aintiff "presented to Dr. Demas," a board certified plastic surgeon "for a second opinion regarding facial surgery" (Id. at, ¶ 3). Dr. Demas recorded that plaintiff “underwent facial surgery about a year prior but was unhappy with his facial appearance and experienced pain from the plates" (Id.). Dr. Demas' examination of plaintiffs face "revealed that Mr. Sogojeva had a flap in the right zygomatic area, had some vertical dystopia. but no enophthalrnos;" ''[h]is extraocular motions were intact, and his gaze was conjugate without diplopia" (Id.). Dr. Demas noted that plaintiff "had a palpable inferior rim plate as well as palpable plate along the zygomaticofrontal suture" (Id.). Dr. Demas recorded that he "discussed surgical options with Mr. Sogojeva, including a lateral orbitotomy and a camouflage procedure'' (Id.). On January 11, 2013. plaintiff returned to Dr. Demas' office for further evaluation (Id. at ¶ 4). Upon review of plaintiff's prior CAT scan and "operative notes, Dr. Demas observed that the zygomatic body had an incomplete reduction," and discussed surgical options with the plaintiff (Id.). Dr. Demas advised that "the lateral orbitotomy would be the best approach" (Id.). However, he informed "Mr. Sogojeva that he could also have onlay bone grafting, orbital bone grafting, canthoplasty, and removal of the plates that were causing him pain, and Mr. Sogojeva decided to undergo this option" (Id.). Dr. Demas "explained that the procedure with grafting and canthoplasty had risks including ectopia," "malposition of the bone graft, lack of bone graft healing, blindness from bleeding in the orbit and/or too much pressure" (Id.). Dr. Demas also "advised that the donor site would cause scarring and possible hair loss" (Id.). The records indicate that "Mr. Sogojeva understood these risks and agreed to proceed with the surgery, and further signed an informed consent form for a bone graft right cheek, orbit, and canthopexy on March 8. 2013" (Id.). The consent form documents that "Dr. Demas fully explained the purpose of the procedure and the risks associated with it, and that Mr. Sogojeva acknowledged that no guarantees or assurances have been made to him regarding [the] results of the procedure" (Id.).
On March 19, 2013, plaintiff presented to Staten Island University Hospital (SIUH) to undergo "a split calvarial bone graft to the right cheek and right orbital with lateral canthoplasty." which was performed by Dr. Demas (Id. at ¶ 5). The chart documents that the "pre-operative and post-operative diagnoses were status post right zygomatic fracture with malunion and vertical dystopia and enophthalmos" (Id.). The operative report indicates that "Dr. Demas began the procedure by opening the lateral incision that had been made previously for the placement of the frontozygomatic suture plate" (Id.). Then, the "plate was exposed and removed," and "[a]n eyelid incision was then made and a portion of the orbicularis was left in the preseptal area" (Id.). Next, "[dissection was taken down to the orbital rim and the inferior orbital rim placed was then exposed and removed as well" (Id.). Afterwards, "[o]rbital dissection then proceeded along with degloving of the soft tissues of the right midface," and Dr. Demas "grafted skin from the left side of the scalp" (Id.). Then, Dr. Demas "designed, burred, tapered and placed the bone graft into cheek with two lag screws," and a "small portion of the bone graft was fashioned for placement inside the orbit to lift the eye up" (Id.). Next, "[f]ibrillar was placed in the orbit for hemostasis," and "Dr. Demas closed with a subciliary incision" (Id.). The records state that "Mr. Sogojeva tolerated the procedure without complication." and he "was discharged on March 20, 2013 with instructions to follow up in Dr. Demas's office on March 25, 2013" (Id. At ¶ 6). He w-as also directed "to keep the site clean, dry and intact." and was "given prescriptions for Tobradex and Percocet" (Id.).
Plaintiff returned to Dr. Demas' office for post-operative treatment (Id. At ¶ 7). The records indicate that "the sutures were removed and noted to be healing well" on March 25, 2013 (Id.). The "staples were removed" on April 1, 2013, and "the eye lid positioning was excellent" (Id.). At the "third post-operative visit on April 9. 2013, Mr. Sogojeva was noted to have lower lid bowing with no ectropion." "[t]he eye was a little proptotic," "[t]he zygonema contour was good and it was noted that Mr. Sogojeva may need a full thickness graft or possible inner lamella treatment with palatal graft to correct the eye" (Id.). During this appointment, "plaintiff complained [of] scleral showing, the white of his eye was showing beneath the iris again" (Id.). Dr. Demas left the practice after this appointment, and "non-party Dr. Al Culliford took over the treatment" (Id.). The records document that a "PA from Dr. Culliford's office spoke to Mr. Sogojeva" on June 13, 2013, and plaintiff "complain[ed] of right eye discomfort, malalignment, ectropion and dizziness" (Id. at ¶ 8). Plaintiff "was advised to come in the next day but indicated he could not because of work" (Id.). Dr. Culliford ordered "a CT scan of the maxillofacial bones" (Id.). On June 17. 2013, plaintiff "underwent the CT scan at Verrazano Radiology Associates, P.C.. approximately three months after the surgery performed by Dr. Demas" (Id. at ¶ 9). The CT scan "revealed placement of a bone graft over the right pre-maxillary/infraorbital region with associated plates and screws" (Id.). On July 23, 2013, plaintiff returned to Dr. Culliford's office, and "reported" "that his eye was worse after the second surgery because his eyelid was lower" (Id.). Plaintiff never returned to Dr. Culliford's office, or "any other healthcare providers with SIUH for treatment regarding his right eye" after this visit (Id.).
On March 20, 2014, plaintiff had an appointment with Dr. Staffenberg, a plastic surgeon at NYU Plastic Surgery Associates (Id. At ¶ 10). The records indicate that "Dr. Staffenberg rendered a primary diagnosis of ectropion ot the right lower eyelid," and he "noted that Mr. Sogojeva had multiple scuffles resulting in predominately right facial trauma" (Id.). Dr. Staffenberg recorded the relevant medical history and reviewed potential treatment options with Mr. Sogojeva including removal of the bone graft and screws, re-osteotomy of zygomaticomaxillary complex ("ZMC") fracture with repositioning and use of a new implant (alloplast or autologous bone) (Id.). Dr. Staffenberg advised "that while he would try to reposition the lower lid, Mr. Sogojeva may need additional surgery' to obtain optimal results" (Id.). On April 10, 2014, plaintiff "returned to Dr. Staffenberg's office" to further discuss his "options for facial reconstruction" (Id. at ¶ 11). At this appointment. Dr. Staffenberg "reviewed plaintiffs CT scan which revealed that he had a bone graft along the surface of the cheek that was being held there with metal screws" (Id.). Dr. Staffenberg examined the plaintiff, and observed "continued ectropion of the right eye, nasal bone and septum fracture with severe deviation to the right and depressed right malar fracture with split calvarial bone graft from left skull, and a symptomatic right lower eyelid malposition with tearing and sensitivity (Id.). Dr. Staffenberg diagnosed the plaintiff with "nasal bone fracture with nonunion, nasal septum fracture, malar fracture with nonunion and ectropion of right lower eyelid," and plaintift "informed Dr. Staffenberg that he wanted to proceed with the hardware removal" (Id.). Dr. Staffenberg ordered a "3D craniofacial examination," which was performed on April 29. 2014 (Id. at ¶ 12). The results "revealed cicatricial ectropion of the right eye, severe deviation of nose to right, malposition of right ZMC, and left parietal scalp scar with underlying bony depression" (Id.).
On June 13. 2014. plaintiff presented to NYU Hospitals Center, and Dr. Staffenberg "performed a repair of the right lower eyelid ectropion, removal of hardware from right cheek and reduction osteoplasty of right orbit and zygoma, placement of Medpor malar implant and nasal reconstruction" (Id at ¶ 13). The operative report documents that the "[F]indings of the surgery' included tertiary post-traumatic facial deformity with facial symmetry and severe nasal obstruction due to deviation and malunion of nasal fracture" (Id.). Plaintiff continued to receive treatment from Dr. Staffenberg postoperatively, and he "was noted to be healing well with no signs of infection" (Id.). At a post-operative appointment on July 17, 2014. "Dr. Staffenberg gave Mr. Sogojeva 0.2 cc of Kcnalog-10 injected at the right lower eyelid for his right scar, pain and itching, which reportedly loosened up the right lower eyelid" (Id.). In August 2014, Dr. Staffenberg recorded that plaintiff wanted another revision surgery, and he "discussed the problems with operating again too soon" (Id.). On September 18, 2014, plaintiff "reported persistent tenderness and pain at the right malar implant" (Id.). On October 9, 2014, Dr. Staffenberg recorded "that the right cheek implant continued to cause the patient pain, with no evidence of infection," [t]he nose was significantly deviated to his right side and causing near-complete obstruction, and the right eyelid had a significant ectropion in spite of the Kenalog injection" (Id. at ¶ 14). Dr. Staffenberg "discussed revision surgery for the nose and Mr. Sogojeva was reportedly happy with the surgical plan" (Id.). On December 16. 2014, plaintiff returned to Dr. Staffenberg's office "to review a computer simulated design for his custom made right orbitozygomatic implant" (Id. at ¶ 15). The chart indicates that "Dr. Staffenberg discussed the risk of the plaintiffs upcoming procedure including lower eyelid position, pain, hypersensitivity, numbness, asymmetry and retained previous foreign body," and plaintiff agreed to "proceed with the planned implant surgery" (Id.).
On January 8, 2015. plaintiff returned to Dr. Staffenberg's office "for a pre-operative visit for a custom-fabricated right orbitozygomatic implant, removal of hardware, possible lower right eyelid repair, and possible nasal reconstruction" (Id. at ¶ 16). On February 20, 2015, plaintiff "underwent the implant procedure;" "Dr, Staffenberg performed a removal of the right malar implant and hardware, insertion of two-piece custom malar implant, repair of right ectropion with lateral canthoplasty and nasal reconstruction" (Id. at ¶ 17). The operative report indicates that "[i] n the subperiosteal plane, a metal object was found lying along the surface of the bone but not embedded into it," and "Dr, Staffenberg documented that the overlying soft tissue was completely intact, and the metal object appeared to be the tip of a drill bit, which was removed and sent to pathology" (Id.). The "postoperative pathology report" states that "the specimen was a metallic rod measuring 0.9 x 0.1 cm" (Id.). Plaintiff continued to receive treatment from "Dr. Staffenberg post-operatively, and Dr. Staffenberg informed him" "that additional surgeries would be necessary' to add soft tissue to fill his right cheek and adjust his eyelid" (Id. at ¶ 18). On March 12, 2015, the records document that plaintiff "reported complaints of pain when he opened his jaw far more than normal to Dr. Staffenberg's nurse practitioner" (Id.). Plaintiff "testified that after the second surgery' with Dr. Staffenberg he began to experience tightness and pain in the jaw, and he continued to have pain in the jaw until the present" (Id.). Further, "after the second surgery with Dr. Staffenberg, his right eyelid got worse with more drooping, he experienced pain and tightness; he would get dizzy if it was windy outside, and he would have to close his eye or wear sunglasses if it was sunny otherwise, lie would blackout" (Id.). Plaintiff claimed that "prior to the removal of the drill bit, every time he would blink his eye, he felt like something was touching inside, and he expressed this to Dr. Staffenberg prior to the fourth surgery'" (Id.). Dr. Staffenberg advised that "the sensation was part of the healing process," and plaintiff did not return to Dr. Staffenberg's office for further treatment after April of 2015 (Id.).
In support of Dr. Demas' and Staten Island University Hospital's motion for summary judgment, defendants argue that the claims against them are time-barred, as the "statute of limitations for recovery' of damages for medical malpractice is two-and-one-half years from the time of the alleged malpractice" (Memorandum of Law in Support at 1, motion sequence 14). Defendants point out that the allegations in the bills of particulars involve the March 19. 2013 surgery performed by Dr. Dcmas, which was over two-and-one-half years before the action was filed on February 8, 2016 (Id. at 1 -2). Further, defendants maintain that the continuous treatment doctrine "does not save plaintiff's claims from being time-barred in this case," as "Dr. Demas last treated plaintiff on April 9, 2013," more than two-one-half years before the action was commenced (Id. at 2). Defendants also allege that the foreign object doctrine "does not save plaintiff's claim from being time-barred," as this exception to the statute of limitations requires the action to "be commenced within one year of the date of' discovery' of the foreign object, or within one year of the "date of discovery' of facts which would reasonably lead to such discovery, whichever is earlier" (Id. at 3). Defendants contend that "Mr. Sogojeva's reports of feeling something when he blinks" to Dr. Staffenberg on December 16, 2014, and January 8, 2015, "constitute facts that would have reasonably led him to discovery of the foreign body" (Id. at 4-5). As the action was not commenced until February 8, 2016, more than one year after plaintiff made these complaints, defendants assert that the action is time-barred even under the foreign object doctrine (Id. at 5).
In support of Dr. Demas' and Staten Island University Hospital's motion for summary judgment, defendants submit an expert affirmation from Joshua D. Rosenberg, M.D., a physician board certified in otolaryngology and facial plastic and reconstructive surgery, who opines that defendants did not deviate from the standard of care during their treatment of the plaintiff, and that they did not proximately cause his injuries (Rosenberg Expert Affirmation ¶¶ 1,3, annexed as Exhibit A to defendants' motion papers, motion sequence 14). Dr. Rosenberg's opinion is based on review of the pleadings, medical records, and the parties' deposition testimony, as well his training and experience (Id. at ¶ 2). Dr. Rosenberg maintains that Dr. Demas "properly performed the split calvarial bone graft to the right cheek and right orbit with lateral canthoplasty," and that "Dr. Demas properly inserted a bone graft into the right cheek with screws" based on the "post operative June 17, 2013 CT scan, [which] demonstrated proper placement of the bone graft" (Id. at ¶ 19). He contends that Dr. Demas "properly obtained informed consent by advising Mr. Sogojeva of the risks" and alternatives of the procedures (Id. at ¶ 20). Dr. Rosenberg affirms that the fact that the plaintiff needed to undergo further surgeries after the March 19, 2013 surgery, does not indicate that Dr. Demas deviated from the standard of care, as "[r]evision surgeries to repair facial fractures are common," because "complications such as malposition of the graft, loss of vision and ectropion can occur despite proper performance of reconstruction surgeries" (Id. at ¶¶ 18, 20). He also alleges that plaintiffs injuries were not caused by the "drill bit discovered on the floor of the right orbit by Dr. Staffenberg during facial surgery on February 20, 2015," as "Dr. Staffenberg had no issues extracting the drill bit when it was found, and it was not embedded in any tissue or bone" (Id. at ¶ 21). Further, plaintiff "continued to have the same complaints after the drill bit was removed," evidencing that the drill bit did not cause his injuries (Id. at ¶22).
In opposition to defendants' motion for summary judgment, plaintiff submits a redacted expert affidavit from a board certified plastic surgeon, licensed in the State of Massachusetts, who maintains that defendants, Dr. Demas and SIUH deviated from the standard of care, and that they proximately caused plaintiffs injuries (Plaintiffs Expert Affidavit ¶¶ 1. 7, annexed as Exhibit 1 to plaintiff s opposition papers, motion sequence 14). His/her opinion is based on review of the medical records, deposition transcripts, and defendants' motion papers, as well as his/her training and experience (Id. at ¶¶ 3, 6). Plaintiffs expert contends that either Dr. Rose or Dr. Demas departed from acceptable medical practice by "leaving behind a drill bit subsequent to their respective [surgical] procedures" (Id. at ¶ 16). Further, he/she opines that "[b]oth doctors deviated in failing to perform an inspection of the surgical field prior to concluding [the] procedures," and "[b]oth doctors also deviated in failing to perform an instrument count prior to concluding [the] procedures" (Id.). Plaintiffs expert asserts that "[a] drill bit being left inside [plaintiffs] maxilla more likely than not was the proximate cause for a significant amount [of] his complaints, pain and suffering, and discomfort that he was exhibiting over the span of several years" (Id. at ¶ 17). Further, he/she explains that "[studies have shown that drill bits, and other foreign instruments, left behind could cause complications and local reactions" (Id.). Plaintiff s expert concludes that "although one would anticipate post surgical discomfort following any of the procedures [plaintiff] underwent, his complaints," including "difficulty blinking and with vision" "were also consistent with someone who had a foreign instrument left behind" (Id. at ¶¶ 1718).
In reply, defendants, Dr. Dcmas and SIUH, allege that plaintiffs expert affidavit is inadmissible, as it is unsigned, is not notarized, and fails to include a certificate of conformity, required pursuant to CPLR 2309(c), when the affidavit is executed outside the State of New York (Reply Affirmation ¶¶ 6-8, motion sequence 14). Defendants maintain that the action must be dismissed against them, as plaintiff has not submitted any opposition to their argument that the claims against them are time-barred under the statute of limitations (Id. at ¶¶ 12-14). Further, defendants claim that plaintiffs expert opinion is conclusory, speculative, based on hindsight reasoning, and "unsupported by any evidentiary' foundation" (Id. at ¶¶ 17-18).
Under CPLR § 214-a, an action for medical malpractice must be commenced within "two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same injury', illness or condition which gave rise to the said act, omission, or failure" (CPLR § 214-a). However, there is an exception "where the action is based upon the discovery' of a foreign object in the body of the patient" (Id.). In that case, the "action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier" (Id.). On a motion to dismiss an action or for summary judgment based on the applicable statute of limitations, "a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired" (Leace v. Kohlroser, 151 A.D.3d 707, 708 [2d. Dept. 2017]; Cavaluzzi v. Beyers, 306 A.D.2d 429, 429 [2d. Dept. 2003]). If the defendant sustains its burden, "the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period (Leace, 151 A.D.3d at 708.).
To prevail on a cause of action for medical malpractice, the plaintiff must prove that defendant "deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiffs injuries" (Stukas v. Streiter, 83 A.D.3d 18, 23 [2d. Dept. 2011 ]). On a motion for summary judgment, defendant must "make a prima facie showing that there was no departure from good and accepted medical practice or that the plaintiff was not injured thereby (lido v. Staten Is. Univ. Hosp., 106 A.D.3d 696, 697 [2d. Dept. 2013]). Once the defendant meets its burden, the burden then shifts to the plaintiff to "raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie showing" (Stukas, 83 A.D.3d at 24). If the defendant "makes only a prima facie showing that he or she did not deviate or depart from accepted medical practice, the plaintiff, in order to defeat summary judgment, need only raise a triable issue of fact as to the alleged deviation or departure, and need not address the issue of proximate cause" (Hayden v. Gordon, 91 A.D.3d 819, 821 [2d. Dept. 2012]). Conclusory allegations that are "unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat defendant physician s summary judgment motion (Deutsch v. Chaglassian, 71 A.D.3d 718, 719 [2d. Dept. 2010]). Where the parties have submitted conflicting expert reports, summary judgment should not be granted; "[s]uch credibility issues can only be resolved by a jury" (Id.).
Dr. Demas and SIUH met their prima facie burden on their motion for summary' judgment, by asserting that the claims against them are time-barred, as plaintiff commenced this action over two-and-a-half years after the March 19, 2013 surgery' and plaintiffs last appointment with Dr. Demas on April 9, 2013 (See CPLR § 214-a: Cavaluzzi, 306 A.D.2d at 429). Defendants also argued that the action was time-barred under the foreign object doctrine. Further, defendants' expert. Dr. Rosenberg, affirmed that defendants did not deviate from the standard of care during their treatment of the plaintiff, and that they did not proximately cause his injuries. Dr. Rosenberg maintained that the drill bit could not have caused plaintiffs injuries, as the drill bit "was not embedded in any tissue or bone," and plaintiff "continued to have the same complaints after the drill bit was removed" (Rosenberg Expert Affirmation ¶¶ 21-22). Dr. Rosenberg's opinion constitutes competent evidence, in that it is based on the pleadings, medical records, and deposition transcripts.
Although plaintiff's opposition does not respond to defendants' contention that the action is time-barred based on the applicable statute of limitations, counsel addressed this point at oral argument, and it is clear from the records that the drill bit was discovered by Dr. Staffenberg on February 20. 2015. less than one year before the action was commenced on February 8. 2016. Pursuant to CPLR § 214-a, "where the action is based upon the discovery' of a foreign object in the body of the patient" the "action may be commenced within one year of the date of such discovery' or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier" (CPLR § 214-a). Although defense counsel claimed that the plaintiff "made [a] sufficient factual discovery to lead to the discovery and identification of the offending object" prior to the February 2015 surgery, based on plaintiffs complaints that he felt something when he blinked, it is not obvious from these complaints that the plaintiff should have suspected that a foreign object had been left inside him (Reply Affirmation ¶ 13). Accordingly, the Court declines to dismiss the action against these defendants based on the statute of limitations, as the action was commenced within one year of the date of discovery' of the foreign object. However, defendants' motion is granted, as plaintiff s expert opinion is insufficient to defeat defendants' motion. Plaintiffs expert opinion is inadmissible, since the expert is a physician licensed in Massachusetts, and the affidavit is not notarized. Pursuant to CPLR § 2106(a), "[t]he statement" "of a physician,, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit" (CPLR § 2106(a)). As plaintiff s expert is licensed out of state, he/she was required to file his/her opinion in the form of an affidavit, and therefore, the opinion is inadmissible, and may not be considered by the Court (See Nelson v. Lighter, 179 A.D.3d 933, 935 [2d. Dept. 2020]). Accordingly, defendants' motion for summary judgment is granted in its entirety.
Defendants' respective motions (motion sequences 13 and 14) for summary judgment are granted in their entirety. The claims against the moving defendants are severed from the claims against the other defendants. The caption is amended to reflect defendants' dismissal from the action, and all future papers filed with the Court shall bear the amended caption. The Clerk of the Court is directed to enter judgment in favor of Dr. Staffenberg, Dr. Demas, and SIUH.
This constitutes the decision and order of the Court.