Opinion
INDEX 619695/2016
11-06-2019
KATHLEEN SOKOL, Plaintiff, v. LYNCAN UNG, D.O., M.D., MICHAEL SLATTERY, M.D., and KIMBERLY LEVY, RPA-C, Defendants. Mot. Seq. Nos. 02 - MG, 03-MG
KRENTSEL & GUZMAN, LLP Attorneys for Plaintiff. LEWIS JOHS AVALLONE & AVILES Attorney for Defendant-UNG. FUMUSO, KELLY, SWART, FARREL,, POLIN&CHRISTESEN, LLP Attorney for Defendant-- SLATTERY. KERLEY WALSH MATERA & CINQUEMANI, P.C. Attorney for Defendant--LEVY.
Unpublished Opinion
MOTION DATE 5-17-2019.
SIJRMIT DATE 10-10-2019.
KRENTSEL & GUZMAN, LLP Attorneys for Plaintiff.
LEWIS JOHS AVALLONE & AVILES Attorney for Defendant-UNG.
FUMUSO, KELLY, SWART, FARREL,, POLIN&CHRISTESEN, LLP Attorney for Defendant-- SLATTERY.
KERLEY WALSH MATERA & CINQUEMANI, P.C. Attorney for Defendant--LEVY.
HON. JOSEPH A. SANTORELLI JUSTICE OF THE SUPREME COURT
Upon the following papers numbered 1to 54 read on this motions for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1 - 11 (#02) & 29 - 39 (#03); Notice of Cross Motion and supporting papers Answering Affidavits and supporting papers 12 - 19 (#02) & 40 - 47 (#03); Replying Affidavits and supporting papers 20 - 28 (#02) & 48 - 54 (#03); 8thel_, (and after heating counsel in support and opposed to the motion) it is, Defendant Lyncan Ung, D.O., M.D., moves for an order granting summary judgment and dismissing the complaint against him. Defendant Kimberly Levy, RPA-C, separately moves for an order granting summary judgment and dismissing the complaint against her. The plaintiff opposes both of these motions arguing that there are issues of fact requiring a trial.
In this medical malpractice action, it is asserted that the defendants negligenlly departed from good and accepted standards of care and practice when the plaintiff, Kathleen Sokol, came under their care and treatment on or about May 12, 2016 and thereafter. It is asserted that the defendants failed to timely diagnose and treat multiple foot fractures, appreciate the severity of her complaints, order necessary diagnostic tests and radiological film studies, properly interpret tests and studies taken, order consultation, facilitate wound healing and improperly discharged her.
The plaintiff presented at the emergency department at Brookhaven Memorial Hospital, hereinafter referred to as "BMH", on May 12, 2016, at 2:22pm after reporting that she dropped a patio table on her right foot. Defendant Levy is a Physicians Assistant employed by BMH. Sokol was seen by a triage nurse who noted a small amount of swelling on her foot and given her less urgent presentation she was treated within the Emergency Department's Fast Track by defendant Levy. Defendant Ung was listed as the "attending supervising physician" but did not see the plaintiff, or speak with defendant Levy, while she was in the Fast Track. Defendant Levy performed an examination of the plaintiff and ordered a foot x-ray to be conducted. At 3:13pm the foot x-ray was performed. Defendant Slattery was the interpreting radiologist who reviewed the x-ray images and authored the report wherein it was indicated that the x-ray was negative for right foot fracture. Defendant Levy reviewed Slattery's report and diagnosed the plaintiff with a contusion. Levy directed the plaintiff to maintain an ace bandage on the foot, utilize antiinflammatories, use crutches, utilize RICE (rest, ice, compression, elevation,, and be weight-bearing as tolerated. Levy also instructed the plaintiff that "if there are any other changes or worsening of symptoms patient is to return to ed". The plaintiff signed her discharge paperwork wherein she was advised to follow-up within 1-2 days with her regular doctor. The plaintiff was discharged at 3:51pm from BMH. On May 14, 2016, defendant Ung signed off on the chart and wrote "patient was seen independenlly by PA\NP. I reviewed documentation, agree with treatment and plan, and cosigned the chart." The plaintiff did not see a health care provider as instructed but rather presented to the Good Samaritan Hospital ER, hereinafter referred to as "GSH", on May 26, 2016. She complained that there was still something wrong with her foot. At GSH the consulting podiatrist ordered another x-ray which was followed by a CT scan. The CT scan demonstrated fractures along various aspects of her right foot.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Friends of Animass v Associated Fur Mfvs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 [1979]; Sillman v Twentieth Century-Fox Film Corporation, 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N. Y U. Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v K Y U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form...and must "show facts sufficient to require a trial of any issue off act"(CPLR3212[b]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 A.D.2d 1014, 435 N.Y.S.2d 340 [2d Dept 1981]).
The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage (Holton v Sprain Brook Manor Nursing Home, 253 A.D.2d 852, 678 N.Y.S.2d 503[2d Dept 1998], app denied 92 N.Y.2d 818, 685 N.Y.S.2d 420). To prove a prima facie case of medical malpractice, a plaintiff must establish that defendants negligence was a substantial factor in producing the alleged injury (see Derdiarian v Felix Contraciing Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166 [1980]; Prete v Rafla-Demetriom, 221 A.D.2d 674, 638 N.Y.S.2d 700 [2d Dept 1996]). Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the plaintiffs injury (see Fiore v Galang, 64 N.Y.2d 999, 489 N.Y.S.2d 47 [1985]; Lyons v McCauley, 252 A.D.2d 516, 517, 675 N.Y.S.2d 375 [2d Dept 1998], app denied 92 N.Y.2d 814, 681 N.Y.S.2d 475; Bloom v City of New York, 202 A.D.2d 465, 465, 609 N.Y.S.2d 45 [2d Dept 1994]).
Healthcare providers owe a duty of reasonable care to their patients while rendering medical treatment; a breach of this duty constitutes medical malpractice (see Dupree v Giugliano, 20 N.Y.3d 921, 958 N.Y.S.2d 312, 314 [2012]; Scott v Uljanov, 74 N.Y.2d 673, 675, 543 N.Y.S.2d 369 [1989] Tracy v Vassar Bros. Hosp,, 130 A.D.3d 713, 13 N.Y.S.3d 226, 288 [2d Dept 2015]). To recover damages for medical malpraciice, a plaintiff patient must prove both that his or her healthcare provider deviated or departed from good and accepted standards of medical practice and that such departure proximately caused the plaintiffs injuries (see Gross v Friedman, 73 N.Y.2d 721, 535 N.Y.S.2d 586 [1988]; Bongiovanii v Cavagnuolo, 138 A.D.3d 12, 24 N.Y.S.3d 689 [2d Dept 2016]; Stukas v Streiter, 83 A.D.3d 18, 918 N.Y.S.2d 176 [2d Dept 2011]). To establish a prima facie entitlement to summary judgment in a medical malpractice action, a defendant healthcare provider must prove, through medical records and competent expert affidavits, the absence of any such departure, or, if there was a departure, that the plaintiff was not injured as a result (see Bongiovanii v Cavagnuolo, supra; Mitchell v Grace Plaza of Great Neck, Inc., 115 A.D.3d 819, 982 N.Y.S.2d 361 [2d Dept 2014]; Faccio v Golub, 91 A.D.3d 817, 938 N.Y.S.2d 105 [2d Dept 2012]). The defendant must address and rebut specific allegations of malpractice set forth in the plaintiffs bill of particulars (see Wall v Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 922 N.Y.S.2d 77 [2d Dept 2010]; LaVecchaa v Bilello, 76 A.D.3d 548, 906 N.Y.S.2d 326 [2d Dept 2010]; Grant v Hudson Val. Hosp. Ctr., 55 A.D.3d 874, 866 N.Y.S.2d 726 [2d Dept 2008]; Terranova v Finklea, 45 A.D.3d 572, 845 N.Y.S.2d 389 [2d Dept 2007]).
After making this prima facie showing, the burden shifts to the plaintiff patient to submit evidentiary facts or materials that raise a triable issue as to whether a deviation or departure occurred and whether this departure was a competent cause of plaintiff s injuries (see Williams v Bayley Seton Hosp., 112 A.D.3d 917, 977N.Y.S.2d 395 [2d Dept 2013]; Makinen v Torelli, 106 A.D.3d 782, 965 N.Y.S.2d 529 [2d Dept 2013]; Stukas v Streiter, supra). The plaintiff need only raise a triable issue as to the elements on which the defendant met the prima facie burden (see Barrocales v New York Methodist Hosp,, 122 A.D.3d 648, 996 N.Y.S.2d 155 [2d Dept 2014]; Gillespie v New York Hosp. Queens, 96 A.D.3d 901, 947 N.Y.S.2d 148 [2d Dept 2012]; Stukas v Streiter, supra). "General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpraciice, are insufficient to defeat defendant physician's summary judgment motion" (Alvarez v Prospect Hosp., supra, at 325; see Brinkley v Nassau Health Care Corp., 130 A.D.3d 1287, 993 N.Y.S.2d 73 [2d Dept 2014]; Kramer v Rosenthal, 224 A.D.2d 392, 637 N.Y.S.2d 772. [2d Dept 1996]). Summary judgment is inappropriate in a medical malpractice action where the parties present conflicting opinions by medical experts (see Leto v Feld, 131 A.D.3d 590, 15 N.Y.S.3d 208 [2d Dept 2015]; Gressman v Stephen-Johnson, 122 A.D.3d 904, 998 N.Y.S.2d 104 [2d Dept 2014]; Moray v City of Yonkers, 95 A.D.3d 968, 944 N.Y.S.2d 210 [2d Dept 2012]).
For medical malpraciice claims, "it is generally recognized that liability for medical malpractice may not be imposed in the absence of a physician-patient relationship" (Megally, 253 A.D.2d 35, 40, 679 N.Y.S.2d 649 [2d Dept 1998]); White v. Southside Hospital, 281 A.D.2d 474, 721 N.Y.S.2d 678 [2d Dept 2001]; Zimmerly v. Good Samaritan Hospital, 261 A.D.2d 614, 690 N.YS.2d 718 [2d Dept 1999]).
NY CLS Educ S 6542 states
1.Notwithstanding any other provision of law, a physician assistant may perform medical services, but only when under the supervision of a physician and only when such acts and duties as are assigned to him or her are within the scope of practice of such supervising physician.
2. Supervision shall be continuous but shall not be construed as necessarily requiring the physical presence of the supervising physician at the time and place where such services are performed.10 NYCRRS 94.2 states
(f) A physician supervising or employing a licensed physician assistant or registered specialist assistant shall remain medically responsible for the medical services performed by the licensed physician assistant or registered specialist assistant whom such physician supervises or employs.In Latiff v Wyckoff Hgts. Hosp., 144 A.D.2d 650, 651 [2d Dept 1988], the Court held
Where as here the appellant physician has made a prima facie showing that he did not treat or examine the infant plaintiff, the plaintiffs must come forward with evidentiary facts to rebut the physician's showing that he or she was not negligent (see, Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324-325). The fact that the appellant's name appeared twice on the infant plaintiff s hospital records is not sufficient to defeat his prima facie showing that he was not negligen,, absent some evidentiary facts that he did in fact treat her (see Buonagurio v Drago, 65 A.D.2d 830). The mother's allegation that she
"believed" the appellant may have discussed her daughter's case with the examining physician on one occasion is not sufficient to create a triable issue of fact (see, Alvarez v Prospect Hosp., supra).
Defendant Dng has submitted the affirmation of James Ryan, M.D., who affirms that he is licensed to practice medicine in New York State, and is board certified in Internal Medicine since 1985 and Emergency Medicine since 1988. He set forth his education and training, and indicated that he reviewed pertinent medical records and depositions. Ryan has set forth his opinions within a reasonable degree of medical certainty, and states that Dng "did not have an established physician-patient relationship with plaintiff, "did not deviate from accepted standards of care in connection with the care rendered to plaintiff when she presented" to BMH on May 12, 2016, "did not even participate in plaintiffs care that day and could not possible be held liable for any acts or omissions relative to the care that was rendered." Ryan further states that it can not "be possibly argued that anything he did or did not do was the proximate cause of plaintiff s alleged injuries."
Defendant Levy has submitted the affirmation of Joshua Stillman, M.D. who affirms that he is licensed to practice medicine in New York State, and is board certified in both Emergency Medicine and Internal Medicine. He set forth his education and training, and indicated that he reviewed pertinent medical records and depositions. Stillman has set forth his opinions within a reasonable degree of medical certainty, and states that the care and treatment rendered to the plaintiff by defendant Levy "during her emergency room treatment presentaiion on May 12, 2016 was at all times within good and accepted medical practice and was not the cause of MS. SOKOL'S injury." He indicates that "three films are the standard initial screening series for a foot injury to look for broken bones" and that the "three plain film x-ray views of the foot were determined to show no fracture by a licensed radiologist." Stillman further opines that "PA LEVY had the appropriate training to provide emergency care, properly appreciated all the complains made to her by the patient, took an appropriate history, performed appropriate examination and provided appropriate proper care, workup, treatment and discharge instruction"" and "appropriately relied on the x-ray report prepared by DR. SLATTERY".
It is determined that, based upon Dr. Ryan's and Dr. Stillmanss opinions, Lyncan Dng, D.O., M.D., and Kimberly Levy, RPA-C have established prima facie entitlement to summary judgment dismissing the complain..
To rebut a prima facie showing of entitlement to an order granting summary judgment by the defendant, the plaintiff must demonstrate the existence of a triable issue of fact by submitting an expert's affidavit of merit attesting to a deviation or departure from accepted practice, and containing an opinion that the defendants acts or omissions were a competent-producing cause of the injuries of the plaintiff (see Lifshitz v Beth Israel Med. Ctr-Kings Highway Div., 7 A.D.3d 759, 776 N.Y.S.2d 907 [2d Dept 2004]; Domaradzki v Glen Cove OB/GYN Assocs,, 242 A.D.2d 282, 660 N.Y.S.2d 739 [2d Dept 1997]). "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury" (Bengston v Wang, 41 A.D.3d 625, 839 N.Y.S.2d 159 [2d Dept 2007]).
In opposition to defendant Dng's motion, the plaintiff submits an affirmation of her attorney and an expert affirmation, with the affirmant's name and signature redacted. The expert states that he is a physician licensed to practice medicine in New York State, and is board certified in Internal Medicine. He set forth his education and training and indicates that he reviewed a copy of the medical records from BMH and GSH, as well as the affirmation of James Ryan, M.D. and the deposition transcript of defendant Dng. He opined within a reasonable degree of medical certainty that defendant Lyncan Dng, D.O., M.D., deviated from accepted standard of medical care "by not personally physically examining Kathleen Sokol even after reviewing and cosigning medical records containing complaints, observations and physical exam findings obviously suspicious for fracture, in relying on simple X-rays to rule out fracture in the setting of acute swelling and in failing to order more advanced radiographic studies such as a CT scan and/or otherwise failing to aggressively an accurately rule out right foot fractures." He further opines that "these deviations from the standard of care were the proximate cause of Ms. Sokol's multiple non-displaced, displaced and avulsed fractures being missed, misdiagnosed, undiagnosed and improperly treated." He states that "One last departure by the defendants, OK'd and cosigned by defendant Dng, D.O., M.D., was rather than discharge her to Orthopedic or at least Podiatric follow-up, Ms. Sokol was simply referred to her 'Regular Doctor' furthering the risk of missed foot fractures." He opines to a reasonable degree of medical certainty that plaintiffs "history of complaints, clinical presentation and physical exam findings at [BMH] emergency department were more than sufficiently suspicious for fracture(s) and warranted either defendant Levy, RPA-C calling defendant Dng D.O., M.D. to do a physical exam personally and order appropriate radiological studies and/or warranted defendant Dng D.O., M.D. himself, upon reading all this documentation in order to cosign, intervening with his own physical exam and ordering an appropriate radiological workup". It is his further opinion that "the failure to do so directly resulted in the misdiagnosis of 'contusion' and missed diagnosis of several painful and incapacitating" fractures "that were not appropriately diagnosed nor treated for weeks."
In opposition to defendant Levy's motion, the plaintiff submits an affirmation of her attorney and an expert affirmation of Bruce Charash, M.D.. Charash states that he is a physician licensed to practice medicine in New York State, and is board certified in Internal Medicine. He set forth his education and training and indicates that he reviewed a copy of the medical records from BMH and GSH, as well as the affirmation of James Ryan, M.D. and the deposition transcript of defendant Dng. The Court notes that while defendant Levy's notice of motion is dated August 16, 2019, the physicianss affirmation in opposition is dated July 12, 2019 and appears to be the same affirmation submitted in opposition to defendant Dng's motion. Charash states that "I submit the instant Affirmation in support of KATHLEEN SOKOLss claims against LYNCAN UNG, D.O., M D" Charash opined within a reasonable degree of medical certainty that plaintiffs "history of complaints, clinical presentation and physical exam findings at [BMH] emergency department were more than sufficiently suspicious for fracture(s) and warranted either defendant Levy, RPA-C calling defendant Dng D.O., M.D. to do a physical exam personally and order appropriate radiological studies and/or warranted defendant Dng D.O., M.D. himself, upon reading all this documentation in order to cosign, intervening with his own physical exam and ordering an appropriate radiological workup". It is his further opinion that "the failure to do so directly resulted in the misdiagnosss of 'contusion' and missed diagnosis of several painful and incapacitating" fractures "that were not appropriately diagnosed nor treated for weeks." He states that "the care rendered by defendant Levy, RPA-C departed from good and accepted standards of practice on that she (1) did not appreciate the suspicious if not obvious presentation of multiple fractures in Ms. Sokol's right foot and (2) failed to seek appropriate help from her attending physician defendant Dng, D.O., M.D.". Finally, he opines that defendant Levy "deviated from the applicable good and accepted standards of medical and hospital care in the care and treatment of Kathleen Sokol" and that those deviations "were the proximate cause of Ms. Sokol's misdiagnosis, delayed fracture dignosis and delayed fracture treatment as well as proximate cause of Ms. Sokol's pain and disability resulting from her multiple foot fractures."
"General and conclusory allegations that are unsupported by competent evidence are insufficient to defeat a motion for summary judgment" (Hernandzz v Nwaishienyi, 148 A.D.3d 684, 68648 N.Y.S.3d 467 [2d Dept 2017], citing Alvarez v Prospect Hosp,, supra at 324-325. Here the plaintiffs expert has merely given general and conclusory statement as to how the moving defendants committed medical malpractice. Charash failed to dispute any of the arguments made by defendant Levy's expert, Dr. Stillman. In addition, the plaintiff failed to indicate what injuries were caused as a result of the alleged medical malpractice of Dng or Levy. Based upon the foregoing, it is determined that plaintiff has failed to raise factual issues to preclude summary judgment from being granted to the defendants.
The motions for summary judgment are granted and the complaint is dismissed as to Lyncan Dng, D.O., M.D., and Kimberly Levy, RPA-C.
The foregoing constitutes the Decision and Order of this Court.