Opinion
Index No. 154735/2015 Motion Seq. No. 003
01-26-2024
SHEILA THOMAS, Plaintiff, v. GALAXY MEDICAL P.C..MICHAEL MOHARAN DPM Defendant.
Unpublished Opinion
MOTION DATE 06/15/2023
DECISION+ ORDER ON MOTION
HON. KATHY J. KING, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 003) 54, 55, 56, 57, 58, 59, 60, 61,62, 63, 64, 65, 66, 67, 68, 69, 70, 71,72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing papers, Defendant, MICHAEL MOHARAN, D.P.M. ("Dr. Moharan"), moves, pursuant to CPLR 3212, for summary judgment and dismissal of the complaint with prejudice and to sever his name from the caption. Defendant also moves, pursuant to CPLR 3212, for dismissal of the cross-claims asserted by co-defendant Galaxy Medical P.C.
After oral argument, and review of the moving papers and opposition thereto, defendant's motion is denied. The Court notes that the branch of the motion seeking dismissal of the cross claim is denied as moot since plaintiff discontinued the underlying action against co-defendant Galaxy Medical P.C. on September 11, 2023.
Plaintiff's complaint pleads two causes of action sounding in medical malpractice and lack of informed consent. The complaint alleges that defendant negligently planned and performed the August 30, 2013, left foot Austin bunionectomy and arthroplasty and repair of plaintiff's hammertoes and claw toes by cutting the bone in an improper manner, and improperly placing a metal Osteomed screw in her left foot without her consent. The complaint also alleges that Dr. Moharan failed to recommend conservative treatment prior to surgery, failed to conduct proper testing prior to surgery, and failed to provide plaintiff with adequate post-operative care. As a result of the defendant's negligence, plaintiff alleges that she sustained severe pain, nerve damage, raised digits, and a keloid scar on her left foot which resulted in multiple steroid injections and ultimately revision surgery of her left foot in 2017 by a different medical provider.
A proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by submitting admissible evidence that demonstrates the absence of material issues of fact that would require a trial (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]; see also Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 [ 1985]). In a medical malpractice action, a movant must provide evidentiary proof in the form of expert opinions and factual evidence establishing that the defendant complied with accepted standards of medical care and practice, obtained informed consent; and/or the defendant's conduct was not a proximate cause of plaintiff's alleged injuries (see N.Y. Public Health Law § 2805-d; see also Alvarez v. Prospect Hospital, 68 N.Y.2d 325 [1986]). Once the proponent makes a prima facie showing, the burden shifts to the opponent to demonstrate, by admissible evidence, the existence of a material issue of fact that requires resolution at trial (see Zuckerman v City cf New York, 49N.Y.2d 557, 558-59 [1980]).
Here, defendant submits the expert affirmation of Dr. Edwin Wolf, who is board certified in podiatric surgery, podiatric orthopedics and primary podiatric medicine who opines, within a reasonable degree of podiatric medical certainty, that the care and treatment rendered by defendant was within the standard of care, and was not the proximate cause of the plaintiff's alleged injuries. Specifically, Dr. Wolf opined that:
1) offering plaintiff a surgical treatment option was within the standard of care which included performing an arthroplasty (a surgery which corrects hammertoes by resecting a section of
bone to allow it to straighten) and fixating the bone with a screw after it was cut, since plaintiff's bunion had been painful for years and conservative treatment had not been successful in treating the condition;
2) developing scar tissue and inflammation following surgery is a known risk to all foot surgeries;
3) plaintiff's prolonged left foot swelling and pain had nothing to do with Dr. Moharan's surgery, but rather is a known event that frequently occurs post-operatively, and that plaintiff's ongoing issues with left foot pain and swelling are likely a result of her abnormal biomechanics which was the etiology of her original problem, and cannot always be controlled, in spite of surgical intervention.
Dr. Wolf also opines as to plaintiff's lack of informed consent claim. To establish a cause of action for lack of informed consent, a plaintiff must demonstrate first that he was not informed of a known risk of the procedure, second that a reasonably prudent person in the patient's position would not have consented to the treatment if he had been fully informed, and third, that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought (N.Y. Public Health Law 2805-d[3]; see also Joswick v Lenox Hill Hosp., 134 Misc.2d 295 [Sup Ct 1986]).
Based upon his review of the record, Dr. Wolf indicates that defendant explained to plaintiff, the proposed surgical procedures and the risks and alternatives on at least 3 different occasions -the first visit on August 10, 2013, the pre-surgical visit on August 24, 2103, and prior to the subject surgery at the hospital on August 30, 2013. As a result, Dr. Wolf opined that the plaintiff was fully aware of her diagnosis, together with the risks, benefits and alternatives of her treatment options. It is well settled that a defendant moving for summary judgment on a lack of informed consent claim must demonstrate that a plaintiff was informed of any foreseeable risks, benefits, or alternatives of the treatment rendered (Henry v Bezalel Rehabilitation &Nursing Ctr, 2020 NY Slip Op 30369[U] [Sup Ct, NY County 2020]; Koi Hou Chan v. Yeung, 66 A.D.3d 642, 643 [2d Dept 2009]).
Additionally, the Court notes that plaintiff admits in her deposition that she signed a consent form in the hospital on the morning of the surgery. Evidence of an "informed consent" discussion in the form of deposition testimony or medical records strengthens the defendants' showing in this regard (Orphan v. Pilnik, 66 A.D.3d 543 [1st Dep't 2009], aff'd, 15 N.Y.3d 907 [2010]).
The Court finds that defendant has established entitlement to summary judgment pursuant to CPLR 3212 regarding the claims raised in plaintiff's complaint based on Dr. Wolf's expert opinion.
Plaintiff, in opposition, submits the expert affidavit of Richard E. Baker, Jr., D.P.M., who is board certified in podiatric orthopedics, foot surgery, primary podiatric medicine, reconstructive rearfoot and ankle surgery and wound care. Dr. Baker opines to a reasonable degree of podiatric medical certainty that defendant was negligent in his care and treatment of Plaintiff from his initial encounter, on August 10, 2013, through and continuing until her last visit with him on December 7, 2013, including, but not limited to, the surgery performed by defendant on August 30, 2013, and the breaches of the standard of care proximately caused plaintiff's alleged injuries.
Defendant's contention that plaintiff's expert affirmation should not be considered since it was sworn to and notarized in Massachusetts and not accompanied by a certificate of conformity pursuant to CPLR 2309 is without merit. It is well settled that such defects are not fatal and does not prejudice any substantial right of the defendant (see CPLR 2001; Williams v Light, 196 A.D.3d 668, 669-70[2d Dept 2021]).
As to plaintiff's claim for informed consent, Dr. Baker also opines that plaintiff did not receive proper informed consent because she was unaware that hardware was to be used in the bunionectomy. Significantly, the Court notes that the consent form signed by plaintiff does not include any language concerning use of a screw or any hardware. Further, plaintiff's expert opines that plaintiff was not properly advised of all the options and alternatives to surgery or the requisite information as to whether she should undergo surgery in order to make an informed choice.
The Court finds that Dr. Baker's affirmation raises triable issues of fact sufficient to rebut the defendant's prima facie showing to summary judgment, including 1) whether Dr. Moharan deviated from the standard of care in determining that plaintiff was a suitable candidate for the surgery; 2) whether Dr. Moharan failed to recommend conservative treatment prior to surgery; 3) whether placement of the screw for the bunionectomy was improper and interfered with healing and led to plaintiff's alleged injuries; 4) whether defendant's departures caused plaintiff to have to undergo a further surgery for revision and correction of the surgery performed by defendant and 5) whether plaintiff was informed that the bunion surgery included the insertion of screws; options and alternatives to surgery; requisite information as to whether she should undergo surgery; and whether defendant explained the details of the surgery necessary to make an informed choice. "Summary judgment is not appropriate ... [when] the parties [submit] conflicting medical expert opinions because [s]uch conflicting expert opinions will raise credibility issues which can only be resolved by a jury" (Cummings v Brooklyn Hosp. Ctr, 147 A.D.3d 902, 904 [2d Dept 2017], quoting DiGeronimo v. Fuchs, 101 A.D.3d 933 [2dDept 2012] [internal quotation marks omitted]; see Elmes v Yelon, 140 A.D.3d 1009 [2d Dept 2016]; Leto v Feld, 131 A.D.3d 590 [2d Dept 2015]).
Based on the foregoing, it is hereby
ORDERED that defendant's motion for summary judgment is denied in its entirety, and it is further
ORDERED that the plaintiff shall serve this order with notice of entry on all interested parties within ten (10) days of this order via certified mail and via nyscef, and it is further
ORDERED that all parties are to appear for a settlement conference on March 26th, 2024, at 10:00am room #351, 60 Centre St. New York, New York.
This constitutes the decision and order of the Court.