Opinion
3741/10
11-16-2011
Antonis Veizis, as Administrator of the Estate of VASILIKI C. KASIMIS VEIZI, deceased and ANTONIS VEIZIS, individually, Plaintiff, v. George D. Kofinas, M.D., MELISSA MONTES, M.D., KOFINAS FERTILITY INSTITUTE, THE FERTILITY INSTITUTE AT NEW YORK METHODIST HOSPITAL, NEW YORK METHODIST HOSPITAL, SATJIV KOHLI, M.D., PETER BINKLEY, M.D. and THE MOUNT SINAI HOSPITAL OF QUEENS, Defendants
, J.
Defendants GEORGE D. KOFINAS, M.D., KOFINAS FERTILITY SERVICES, P.C. s/h/a KOFINAS FERTILITY INSTITUTE, and NEW YORK METHODIST HOSPITAL move this court pursuant to CPLR 3212 (a) (b) and (e) for an Order granting summary judgment to GEORGE D. KOFINAS, M.D., KOFINAS FERTILITY SERVICES, P.C. s/h/a KOFINAS FERTILITY INSTITUTE and NEW YORK METHODIST HOSPITAL. Defendants also seek dismissal of plaintiff's claim for loss of services should summary judgment be granted. Plaintiff does not oppose the motion on behalf of KOFINAS FERTILITY SERVICES, P.C. s/h/a KOFINAS FERTILITY INSTITUTE and NEW YORK METHODIST HOSPITAL. The motion of defendant PETER BINKLEY, M.D. for summary judgment is also unopposed.
NOW, upon the foregoing and oral argument on October 27, 2011 and due deliberation had thereon, the motion for summary judgment is GRANTED without opposition to KOFINAS FERTILITY SERVICES, P.C. s/h/a KOFINAS FERTILITY INSTITUTE, NEW YORK METHODIST HOSPITAL and PETER BINKLEY, M.D. Summary judgment is DENIED as to defendant GEORGE D. KOFINAS, M.D.
This is an action sounding in medical malpractice and for the wrongful death of 29 year old, Vasiliki C. Kasimis Veizi, on September 25, 2009.
Dr. Kofinas is the owner and director of NYMHB Fertility Services ("NYMHB") which does business as Kofinas Fertility Services, P.C. ("Fertility Services"). NYMHB employs five physicians working at the Fertility Services, including Dr. Montes. Dr. Kofinas is a physician Board Certified in Reproductive Endocrinology and Obstetrics and Gynecology. Dr. Montes is a physician who received Board Certification in Obstetrics and Gynecology after the death of Mrs. Veizi. Dr. Montes has not moved for summary judgment.
Mrs. Veizi first sought the services of Dr. Kofinas and the Kofinas Fertility Services in 2004 and underwent laparoscopy and hysterotomy resulting in a finding of endometriosis. Mrs. Veizi was also found to have a heart murmur and was referred to a cardiologist for clearance. She was diagnosed with a bicuspid aortic valve. She was also diagnosed with polycystic ovarian syndrome which may lead to infertility primarily because it renders a woman unable to ovulate, causing the ovaries to enlarge with a large number of follicles. After an unsuccessful attempt at in vitro fertilization (" IVF") in October/November 2005, a procedure in January 2006 resulted in pregnancy with triplets born in August 2006.
On August 13, 2009, Mrs.Veizi returned to the Kofinas Fertility Services for consultation and was seen by both Dr. Montes and Dr. Kofinas. Dr. Kofinas claims that at that time, Ms. Veizi was assigned to Dr. Montes for fertility treatment, however, Dr. Kofinas was in the room during the consultation and wrote the note on that occasion specifying the course of treatment. The plan was to commence Provera on August 14, 2009, Lupron on August 19, 2009, stimulation on September 11, 2009 and egg retrieval on September 22, 2009. Dr. Kofinas' note indicated a plan to freeze all embryos and transfer in prepared cycles. Dr. Kofinas testified that Lupron suppresses the pituitary gland, Folican stimulates the ovaries to produce follicles. On September 20, 2009, Mrs. Veizi was given HCG to induce the final maturation of the eggs prior to retrieval.
On September 22, 2009, Ms. Veizi underwent Oocyte retrieval, performed by Dr. Montes in the presence of Dr. Kofinas. Dr. Kofinas authored the IVF summary noting the plan to freeze all embryos and not transfer in an effort to avoid severe hyperstimulation syndrome in case of a pregnancy. Dr. Kofinas claims that he is always present during all egg retrievals. A sonogram performed during the procedure showed that Mrs. Veizi's ovaries were markedly large at 10.72cm and 9.684 cm in size.
Plaintiff testified that the next day, Mrs. Veizi's abdomen was enlarged and that she complained of abdominal pain. On September 24, 2009 at about 8:00 pm, Mrs. Veizi called her husband to say that she had passed out. When Mr. Veizis arrived at the house, he found her on the floor and dialed 911. She was taken by ambulance to Mt. Sinai Hospital of Queens with a chief complaint of a syncopal episode. The Mt. Sinai record notes that she was "status post egg retrieval last week and was found hypotensive by EMS." Mrs. Veizi received fluids and subsequently discharged home at approximately 5:00 am with a diagnosis of " syncope, vasovagal, unknown cause."
According to Dr. Montes' note in the chart, Mrs. Veizi called the Kofinas Institute on September 25, 2009 to inform of her emergency room visit. Dr. Montes note states that Mrs. Veizi told her that she was taken to the emergency room after an episode of fainting and was evaluated and sent home. The note indicates that Mrs. Veizi was told at the hospital that it was due to dehydration. The note further states that Mrs. Veizi advised Dr. Montes that she had some abdominal discomfort before going to the ER but that it had resolved. Dr. Montes advised her to decrease Metformin, one of her medications, and to eat small meals throughout the day. Mrs. Veizi was instructed to go to the office or to the hospital if she had any concerns. There is no indication that Dr. Kofinas spoke to Mrs. Veizi that day or that he was advised about the incident.
According to the plaintiff, throughout the day Mrs. Veizi continued to feel ill. She was taken by ambulance to the emergency room after vomiting and fainting again. When Mrs. Veizi arrived at Mt. Sinai Hospital at 9:51 she seized and became unresponsive. Resuscitative efforts failed and she was pronounced dead at 10:25 pm. According to the autopsy report the cause of death was secondary to ovarian hyperstimulation syndrome.
The court must first address Dr. Kofinas claim, asserted in his Reply, that plaintiff's opposition to this motion is defective because plaintiff did not attach the Supplemental Bill of Particulars to the opposition papers. Dr. Kofinas argues that plaintiff brought new allegations of malpractice in a Supplemental Verified Bill of Particulars served on August 3, 2011 after this motion was filed and that, as it is a pleading, it must be attached to the papers. Citing Second Department cases and CPLR §3212 (b), Dr. Kofinas claims that this court must not consider plaintiff's opposition and therefore grant the within summary judgment motion. See, Thompson v. Foreign Cars Center, Inc., 40 AD3d 965 (2d Dept. 2007); Matsyuk v. Konkalipos, 35 AD3d 675 (2d Dept. 2006); Deer Park Associates v. Robbins Store, Inc., 243 AD2d 443 (2d Dept. 1997); Wilder v Heller, 24 AD3d 433 (2d Dept. 2005).
However, movant's contention is misplaced. A Bill of Particulars is not a Pleading, just an expansion of one. Siegel, NY Prac. § 238, at 401 (4th ed.). Indeed, CPLR § 3011 entitled "Kinds of pleadings" sets forth that:
There shall be a complaint and an answer. An answer may include a counterclaim against a plaintiff and a cross-claim against a defendant. A defendant's pleading against another claimant is an interpleader complaint, or against any other person not already a party is a third-party complaint. There shall be a reply to a counterclaim denominated as such, an answer to an interpleader complaint or third-party complaint, and an answer to a cross-claim that contains a demand for an answer. If no demand is made, the cross-claim shall be deemed denied or avoided. There shall be no other pleading unless the court orders otherwise. (Emphasis added).
Moreover, the cases cited by Dr. Kofinas are not applicable herein. In those cases, the movant failed to attach a complete set of pleadings to the summary judgment motion where it is required that pleadings be made part of the moving papers. The moving papers were found to be defective by virtue of the omission. However, no such requirement applies to opposition papers. Indeed, the Second Department, relying on the Court of Appeals' holding in Alvord & Swift v. Muller Constr. Co., 46 NY2d 276, 281 (1978), stated that "a plaintiff may oppose a motion for summary judgment by relying on an unpleaded cause of action." Falkowski v. Krasdale Foods, Inc., 50 AD3d 1091, 1092 (2d Dept. 2008). In Perez v. Cassone Leasing, Inc., the Second Department noted that "modern practice permits a plaintiff to successfully oppose a motion for summary judgment by relying on an unpleaded cause of action which is supported by the plaintiff's submissions. Supra, 40 AD3d 946, 947 (2d Dept. 2007). A court may properly look beyond the allegations in the complaint and deny summary judgment where a party's papers in opposition to the motion raise triable issues of fact. Gold Connection Discount Jewelers, Inc. v. American Dist., 212 AD2d 577 (2d Dept.1995).
In the instant motion, this court finds that any claimed failure to append a Supplemental Bill of Particulars to plaintiff's papers is not fatal to the opposition of this motion. Furthermore, it is evident in defendant's Reply that the facts underlying plaintiff's opposition were obtained through discovery in which all parties participated. In sum, plaintiff's allegations, which form the basis for the opposition herein, have been probed and prodded and these arguments come as a surprise to no one. Plaintiff's papers will therefore be entertained herein.
On a cause of action sounding in medical malpractice, "the requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of injury or damage." Flanagan v. Catskill Regional Medical Center, 65 AD3d 563 (2d Dept. 2009) citing, Geffner v. North Shore Univ. Hosp., 57 AD3d 839, 842 (2d Dept. 2008); see Deadwyler v. North Shore Univ. Hosp. at Plainview, 55 AD3d 780, 781 (2d Dept. 2008). "On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury. General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment." Rebozo v. Wilen, 41 AD3d 457, 458 (2d Dept. 2007); Flanagan v. Catskill Regional Medical Center, 65 AD3d 563 (2d Dept. 2009); see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325 (1986); Sheenan-Conrades v. Winifred Masterson Burke Rehabilitation Hosp., 51 AD3d 769, 770 (2d Dept. 2008); Thompson v. Orner, 36 AD3d 791, 792 (2d Dept. 2007); DiMitri v. Monsouri, 302 AD2d 420, 421 (2d Dept. 2003). The plaintiff opposing a defendant physician's motion for summary judgment must only submit evidentiary facts or materials to rebut the defendant's prima facie showing. Stukas v. Streiter, 83 AD3d 18 (2d Dept. 2011).
In support of his motion, defendant submits the affirmation of a physician Board Certified in Obstetrics and Gynecology and Maternal Fetal Medicine. The expert opines that Dr. Montes was responsible for the management, care and treatment of Mrs. Veizi with respect to the IVF cycle in 2009 and that Dr. Montes did not require the approval, direction or the supervision of Dr. Kofinas to care for this patient. In his opinion, Dr. Montes formulated her own treatment plan and did not request Dr. Kofinas' permission or guidance in managing the care and treatment of Mrs. Veizi from September 22, 2009 through September 25, 2009. The expert opines that precautions were taken to avoid ovarian hyperstimulation with respect to Mrs. Veizi by freezing the embryos after retrieval and transfer to the uterus at a later date.
Plaintiff submits an affidavit from Victor R. Klein, M.D., a physician Board Certified in Obstetrics and Gynecology and Reproductive Endocrinology and Infertility. The expert states that Mrs. Veizi had a medical history of polycystic ovarian syndrome which, coupled with the high number of eggs she produced during the IVF cycle, put her at risk for Ovarian hyperstimulation Syndrome (OHSS). OHSS is a complication that can develop from the medications prescribed during IVF to stimulate the production and number of eggs. OHSS is a disorder that has the potential to become severe and life threatening, requiring hospitalization, close monitoring and at times, intensive care. In Mrs. Veizi's case, 36 eggs were retrieved and a sonogram performed that day indicated that her ovaries were markedly enlarged. In the expert's opinion, Dr. Kofinas and Dr. Montes departed from good and accepted medical practice by failing to decrease the dosage of ovary stimulating medications during the IVF cycle in 2009. Decreasing the dosage was indicated because of her history of previously producing 38 and 44 eggs. Dr. Klein opines that Dr. Kofinas and Dr. Montes failed to take the necessary precautions to decrease the likelihood of hyperstimulation in the patient. Furthermore, the expert opines that Mrs. Veizi should have been monitored by office examination and sonogram 2 days following egg retrieval; this was not done. In the expert's opinion, as result of these departures Mrs. Veizi developed OHSS which was not timely diagnosed leading to her death.
In Reply papers, Dr. Kofinas submits a supplemental affidavit from Dr. Klein who opines that Dr. Kofinas did not supervise or direct Dr. Montes during the egg retrieval on September 22, 2009 and that he did not directly care and treat Mrs. Veizi. He states that Dr. Kofinas was not responsible as the owner of the fertility practice to supervise Dr. Montes.
Dr. Klein attests that the standard as stated by the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technologies (SART) does not require that a licensed physician, board certified in obstetrics and gynecology, employed at an IVF facility, administering IVF be supervised or directed by a physician who is board certified in Reproductive Endocrinology and Infertility. As such, it was not the standard of care for Dr. Kofinas to supervise Dr. Montes in the administration of IVF or in her decision making with respect to her patients undergoing IVF. As such, he opines that Dr. Kofinas did not depart from the standard of care with respect to the supervision of Dr. Montes.
Dr. Klein further opines in the Reply papers that reduction of the dosage of medications to stimulate the ovaries was not indicated because Mrs. Veizi's estradiol level was below 2000, which would not raise concerns for OHSS. Additionally, Dr. Klein opines that it is not the standard to perform a sonogram two days post egg retrieval and that regardless, Mrs. Veizi was examined at the co-defendant hospital 2 days post egg retrieval.
Movant vehemently argues that Dr. Kofinas was not directly involved in Mrs. Veizi's care and treatment in August/September 2009. He asserts that Mrs. Veizi was assigned to Dr. Montes and that he did not supervise or direct Dr. Montes in Ms. Veizi's care and treatment. He insists that Dr. Montes solely was responsible for the care and treatment of Mrs. Veizi.Notwithstanding these claims, Dr. Kofinas stated in his deposition that he oversees how everything runs. Although he did not remember details of conversations with Mrs. Veizi, Dr. Kofinas stated that he would speak to her in the office and that he regarded her as a "dear patient." He conceded that he wrote the note on August 13, 2009, the day of the consultation with Mrs. Veizi. He testified that he wrote that note "because it's a final decision, that is it, that I approve of the plan and I agree with the plan." (EBT pg 45) Dr. Kofinas added, "This is a complex operation. We have to coordinate treatments. And since I am in charge there are two things. Patients like to see me also, and I like to know what's going on." (Emphasis added) (EBT pg 45). According to Dr. Kofinas' note of August 13, 2009, the plan was to commence Provera on August 14, 2009, Lupron on August 19, 2009, stimulation on September 11 and egg retrieval on September 22, 2009. Lupron was administered to suppress the pituitary gland, Folican to stimulate the ovaries to produce follicles and HCG to induce the final maturation of the eggs, prior to removal. (F 49-50). It is uncontested that Dr. Kofinas was present during the egg retrieval on September 22, 2009 and also wrote the note regarding the procedure. However, Dr. Kofinas testified that he did not know that Mrs. Veizi called on September 25, 2009 or that she was seen in the ER the night before.
Dr. Montes' testimony establishes that Dr. Kofinas always would go into each of the physician's offices so that he "knows what's going on with every patient." She added that although each physician formulates his/her own plan of treatment, they do consult him and discuss things with him. The medical record for Mrs. Veizi for August and September 2009 corroborates Dr. Kofinas' involvement in the care of this patient. The IVF summary notes that the surgeons for the egg retrieval were "mm/gk." Dr. Kofinas confirmed that the initials stand for Melissa Montes and George Kofinas. Furthermore, Dr. Kofinas testified that the billing for services would be under the name of the doctor that the patient was assigned to. The billing record in for Mrs. Veizi's 2009 procedure indicates Dr. Kofinas as the physician.
In a medical malpractice action, the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether the defendant physician was negligent. See Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Taylor v. Nyack Hosp., 18 AD3d 537 (2d Dept. 2005). The evidence presented herein does not fully support the contention that Dr. Kofinas did not treat Mrs. Veizi or that he is not responsible for the management of her IVF. Instead, the submissions of Dr. Kofinas not only raises a material issue of fact, but also, contradict such claims.
Additionally, the court finds that Dr. Kofinas does not meet his burden of showing entitlement to summary judgment, as his expert's affidavit is conclusory and speculative. The expert attempts to opine on matters that are strictly factual and are still in dispute and which go to the very heart of the issues in this case. Whether Dr. Kofinas treated Mrs. Veizi in 2009 and whether he supervised and directed Dr. Montes are questions solely for a jury to decide based on evidence to be adduced at trial. Clearly the parties have conflicting evidence on this point which is not within the province of an expert to conclude.
Additionally, the opinions rendered by the expert which actually pertain to the standard of medical practice lack foundation, are conclusory and do not state the standard as applicable to the circumstances herein. Furthermore, in referring to the standard set forth by the ASRM and the SART, Dr. Kofinas' expert based his opinion on the false premise that Dr. Montes was board certified in Obstetrics and Gynecology in September 2009. In fact, Dr. Montes testified that she just became Board eligible in October 2009, after Mrs. Veizi had died. Here, Dr. Kofinas does not make a prima facie showing of entitlement to summary judgment and the burden never shifted to the plaintiff. and the sufficiency of the opposition need not be examined. See, Post v County of Suffolk, 80 AD3d 682 2011.
In addition, the portion of Dr. Kofinas expert affidavit offering opinions on the care and treatment rendered to Mrs. Veizi conflicts with plaintiff's expert's opinions; thereby precludes summary judgement. The experts conflict as to whether reduction in the dosage of stimulation medication was indicated and whether sufficient precautions against OHSS were followed. "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." Feinberg v. Feit, 23 AD3d 517, 519 (2d Dept. 2005)[internal citations omitted]; Colao v. St. Vincent's Med. Ctr., 65 AD3d 660, 661 (2d Dept. 2009); Deutsch v. Chaglassian, 71 AD3d 718 (2d Dept. 2010).
Additionally, there is also an issue of fact as to whether the conduct of Dr. Kofinas and Dr. Montes gave rise to the creation of an agency by estoppel or apparent or ostensible agency.
In order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal. The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent's skill" (Dragotta v. Southampton Hosp., 39 AD3d 697, 698). Thus, "[t]here are two elements to such a claim of apparent or ostensible agency" (id. at 698-699). "To establish the holding out' element, the misleading words or conduct must be attributable to the principal" (id. at 699). "To establish the reliance' element, the third party must accept the agent's services and submit to the agent's care in reliance on the belief that the agent was an employee of the principal" (id.). "In the context of a medical malpractice action, the patient must have reasonably believed that the physicians treating him or her were provided by the hospital or acted on the hospital's behalf" (id.). "In the context of evaluating whether a doctor is the apparent agent of a hospital, a court should consider all attendant circumstances . . . to determine whether the patient could properly have believed that the physician was provided by the hospital.' Sampson v Contillo, 55 AD3d 588, 590 (2d Dept. 2008), quoting Contu v Albert, 18 AD3d 692, 693 [2005], quoting Augeri v Massoff, 134 AD2d 308, 309 [1987]).
For apparent authority to arise, there must be words or conduct communicated to the third party that the agent possesses authority to act on behalf of the principle. Here there is evidence that conduct of Dr. Kofinas led Mrs.Veizi to reasonably to believe that Dr. Montes was provided by him or that Dr. Montes was acting on his behalf, and that she accepted their services in reliance upon the perceived relationship. Thus, on this basis too, summary judgement must be denied to Dr. Kofinas.
This constitutes the decision, opinion and order of this court.
Enter,
J. S. C.