Opinion
Index No. 715338/2017 Motion Seq. No. 12
12-23-2021
CHEVIE WALKER, Plaintiff, v. ROSENFELD PLASTIC SURGERY, NACHMAN ROSENFELD, M.D., P.C. and NACHMAN ROSENFELD, M.D., Defendants.
Unpublished Opinion
Motion Date August 18, 2021
Present: HONORABLE CHEREE A, BUGGS, Justice
SHORT FORM ORDER
HON. CHEREE A. BUGGS, J.S.C.
The following numbered papers have been read on this motion by defendants seeking summary judgment dismissing plaintiffs complaint, pursuant to CPLR 3212.
Papers Numbered
Notice of Motion - Affidavit - Exhibits.......................................... EF 145-E176
Answering Affidavit - Exhibits....................................................... EF 177-E196
Reply Affirmation ........................................................................... EF 197
Defendants' motion for summary judgment is granted as set forth below.
Plaintiff seeks damages for personal injuries allegedly resulting from the medical care and treatment rendered by defendants, for the purpose of performing an abdominoplasty, umbilicus revision, and liposuction in 2015. Plaintiff commenced this action, pro se, in November 2017 by the service of a summons and complaint, alleging causes of action for medical malpractice, negligence, and lack of informed consent, among others. Answers on behalf of the defendants were served. In November 2018, plaintiff discontinued the action against defendant. New York Surgery Center Queens, and served an amended summons and complaint against the Rosenfeld defendants in April 2019. A bill of particulars, and two amended bills of particulars, were served in late December 2019 and early February 2020. Plaintiff has been deposed, and defendants have responded to plaintiff's interrogatories. Defendant, Nachman Rosenfeld, is the principal of defendants, Rosenfeld Plastic Surgery, and Nachman Rosenfeld, M.D., P. C. Defendants seek summary judgment dismissing plaintiff's complaint, by asserting "that there was no departure from good and accepted medical practice, or that the plaintiff was not injured thereby" (Stukas v Streiter, 83 A.D.3d 18, 24 [2d Dept 2011]; see Huichun Feng v Accord Physicians, PLLC, 194 A.D.3d 795 [2d Dept 2021]).
"[T]he 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 demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993], citing Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]; see Schmitt v Medford Kidney Center, 121 A.D.3d 1088 [2d Dept 2014]; Zapata v Buitriago, 107 A.D.3d 977 [2d Dept 2013]). Only if a prima facie demonstration has been made, does the burden shift to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which requires a trial of the action (see Alvarez v Prospect Hospital, 68 N.Y.2d 320; Zuckerman v City of New York, 49N.Y.2d 557 [1980]; Roos v King Constr., 179 A.D.3d 857 [2d Dept 2020]). On defendants' motion for summary judgment, the evidence should be liberally construed in a light most favorable to the nonmoving plaintiff (see Monroy v Lexington Operating Partners, LLC, 179 A.D.3d 1053 [2d Dept 2020]; Rivera v Town of Wappinger, 164 A.D.3d 932 [2d Dept 2018]: Boulos v Lerner-Harrington, 124 A.D.3d 709 [2d Dept 2015]).
The Court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" (Lopez v Beltre, 59 A.D.3d 683, 685 [2d Dept 2009]; Santiago v Joyce, 127 A.D.3d 954 [2d Dept 2015]). As summary judgment is to be considered the procedural equivalent of a trial, "it must clearly appear that no material and triable issue of fact is presented .... This drastic remedy should not be granted where there is any doubt as to the existence of such issues... or where the issue is 'arguable'" [citations omitted] (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395,404 [1957]; see also Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1978]; Andre v. Pomeroy, 35 N.Y.2d 361 [1974]; Stukas v. Streiter, 83 A.D.3d 18 [2d Dept 2011]; Dykeman v. Heht, 52 A.D.3d 767 [2d Dept 2008]. The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact (see Ayotte v Gervasio, 81 N.Y.2d 1062; Khadka v American Home Mortg. Servicing, Inc., 139 A.D.3d 808 [2016]). Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Collado v Jiacono, 126 A.D.3d 927,928 [2d Dept 2014]), citing Scott v Long Is. Power Auth., 294 A.D.2d348,348 [2d Dept 2002]; see Charlery v Allied Transit Corp., 163 AD3 914 [2d Dept 2018]; Chimbo v Bolivar, 142 A.D.3d 944 [2d Dept 2016]; Bravo v Vargas, 113 A.D.3d 579 [2d Dept 2014]).
By submitting the affidavits or affirmations of medical experts, who through review of the medical records conclude that defendants' treatment of plaintiff were consistent with the good and accepted standards of medical care, and that no lack of care or alleged omission was a proximate cause of, or contributing factor to, plaintiffs injuries, defendants can meet their prima facie burden (see Larcy v Kamler, 185 A.D.3d 564 [2d Dept 2020]; Williams v Nanda, YH A.D.3d 938 [2d Dept 2019]; Michel v Long Island Jewish Medical Center, 125 A.D.3d 945 [2015]). Here, defendants established prima facie entitlement to summary judgment based on the submission of office records, signed authorizations and consent forms, and operative reports, all exchanged previously, and of Nachman Rosenfeld's own affidavit, opining "to a reasonable degree of medical certainty," and "which (was) detailed, specific, and factual in nature indicating that (his) treatment of... plaintiff did not depart from good and accepted medical practice (Joyner-Pack v Sykes, 54 A.D.3d 727,729 [2d Dept 2008]; see Marine v Camissa, 107 A.D.3d 672 [2d Dept 2013]; Makinen v Torelli, 106 A.D.3d 782 [2d Dept 2013]). "In order to establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred, (2) that the defendant[ ] breached that standard of care, and (3) that the breach of the standard was the proximate cause of the injury" (Deadwyler v North Shore Univ. Hosp. At Plainview, 55 A.D.3d 780,781 [2d Dept 2008] [internal quotation marks omitted]; see Rucigay v Wyckoff Hgts. Med. Ctr., 194 A.D.3d 865 [2d Dept 2021]; Pieter v Polin, 148 A.D.3d 1193 [2d Dept 2017]). "Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause" (Novick v South Nassau Communities Hosp., 136 A.D.3d 999, 1000 [2d Dept 2016]; see Aaron v Raber, 188 A.D.3d 967 [2d Dept 2020]).
"Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person may conclude that it was more probable than not that the defendant's departure was a substantial factor in causing the plaintiff's injury" (Berger v Shen, 185 A.D.3d 539, 541 [2d Dept 2020] quoting Gaspard v Aronoff, 153 A.D.3d795,796 [2d Dept 2017];.see Hilt v Carpentieri, 198 A.D.3d625 [2d Dept 2021]; Bacchus-Sirju v Hollis Women's Ctr., 196 A.D.3d 670 [2d Dept 2021]). Plaintiffs medical expert's opinion would be sufficiently stated even if he or she "is unable to quantify the extent to which defendant's act or omission decreased the plaintiff's chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that defendant's conduct diminished the plaintiffs chance of a better outcome or increased [the] injury" (Lopes v Lenox Hill Hosp., 172 A.D.3d 699, 702 [2d Dept 2019] quoting Gaspard v Aronoff, at 796-797; see Walsh v Akhund, 198 A.D.3d 1010 [2d Dept 2021]).
In the case at bar, plaintiff proffered the affidavit of Douglas A. Taranow, D.O., FACOS, a plastic surgeon, sworn to on August 11, 2021, who opined that "ANY surgeon who fails to obtain cultures for a post surgical patient who develops foul smelling drainage which lingers days-weeks is in deviation of the accepted standards of care." While such an expert opinion is sufficient to raise an issue of fact as to a possible "deviation" on the part of defendants, it is devoid of any mention of whether such "deviation" caused plaintiffs alleged injuries. As both elements, i.e., a deviation and proximate cause, are required, plaintiff has failed to adduce the requisite expert testimony to establish a connection between the alleged departure from the accepted standards of care, and plaintiff s injuries (see Berger v Shen, at 542; Kelly v New York City Health & Hosps. Corp., 194 A.D.3d 1032 [2d Dept 2021]). Further, such affidavit fails to address the additional issues raised by plaintiff regarding defendants' alleged failures to obtain informed consent; to advise plaintiff of foreseeable risks, etc., of the surgical procedures performed; to advise plaintiff of alternative methods; and/or to treat plaintiff with alternative methods.
While "[s]ummary judgment may not be awarded in a medical malpractice action where the parties adduce conflicting opinions of medical experts, which present a credibility question requiring a jury's resolution" (Berger v Hale, 81 A.D.3d 766, 766 [2011], see Pistone v American Biltrite, Inc., 194A.D.3d 1085 [2dDept 2021 ]; Elstein v Hammer, 192 A.D.3d 1075 [2d Dept 2021]; Cox v Herzog, 192 A.D.3d 757 [2d Dept 2021]; Macancela v Wyckoff Hgts. Med. Ctr., 175 A.D.3d 795 [2d Dept 2019]), such is not the factual situation herein. Here, plaintiffs opposition fails to rebut defendants' entitlement to summary judgment, and defendants' motion is granted.
Plaintiffs remaining contentions are either without merit, or need not be addressed in light of the foregoing determination.
Accordingly, the motion by defendants, seeking summary judgment dismissing plaintiffs complaint, is granted.