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Alzona v Kaplan 2012 NY Slip Op 32815(U) November 20, 2012 Supreme Court, Suffolk County Docket Number: 10-45291 Judge: Ralph T. Gazzillo Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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INDEX NO. 10-45291 CAL. NO. 12-00622MM
SUPREME COURT - STATE OF NEW YORK T.A.S. PART 6 - SUFFOLK COUNTY

PRESENT:
I Ion.

RALPH T. GAZZILLO Acting Justice of the Supreme Court

MOTION DATE 6-29- 12 10-4- 12 ADJ. DATE Mot. Seq. # 001 - MotD

_________--^______-_--------^---------------------------------

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DUFFY & DIJFFY Attorney for Plaintiffs 1370 RXR Plaza, West Tower, 13"' Floor Uiiiondale, New York 1 1 556
FUREY, FUREY, LEVERAGE, MANZTOlVE, WILLIAMS & DARLINGTON, P.C. Attorney for Defendant 600 Front Street, P.O. Box 750 Henipstead, New York 11550

.TESSlCA AI,ZC>NA, an infant by her father and natural guardian. ROMEO ALZONA,

Plaintiffs,
- against -

CARL, PHlLIP KAPLAN, M.D., Defendant.
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Upon the following papers numbered 1 to 2 read 011 this motion for summary iudpinent ;Notice of Motion/ Order to Show 0 Cause and supporting papers 1 - 14 : Notice of Cross Motion and supporting papers -; Answering Affidavits aiid supporting papers 18-20; Replying Affidavits and supporting papers 15-17; Other -; ( b L ) it is,

ORDERED that motion (00 1) by the defendant, Carl Philip Kaplan, M.D., for summary judgment dismissing the complaint is denied, or in the alternative, precludiiig the defendant from presenting testimony on tlic issue of possible future infertility and/or bowel obstruction and/or future damages, and/or striking the plaintiffs bill of particulars with regard to those issucs, is granted I n this action for medical malpractice, the plaintiff, Romeo Alzona, on behalf his infant daughter, Jessica Alzona, asserts that defcndant Carl Philip Kaplaii. M.D. negligently departed from good and accepted standards o!' mcdical care and practice in failing to timely diagnose the infant for appendicitis, and caused a delay in her care and treatinent. A cause of action for lack of informed consent has also been pleaded, in addition to a clcrivativc claim. As a result of the alleged malpractice, it is claimed that the infant developcd a perforated appendix, intra-abdominal abscess requiring drainage and trcatinent and prolonged hospitalization and that the i n ('ant plaintiff has been placed at an increased risk for bowel obstruction, fertility problems, and persistent ahdominal coniplaints.
Carl Pliilip Kaplan. M.D. seeks sumrnaryjudgmeiit dismissing the complaint on the bases that he did not d c p a r t from good and accepted standards of medical care and treatment, and that there were no acts or omissions 133 him which proximately caused the alleged injuries claimed by the plaintiff, as the diagnosis of appendicitis x v a ~ indicatecl by the medical evidence aiid circumstances present on June 10, 2009; an appendectomy would not h a j had to be performed in any case; and any iiicreased damages were caused by tlie appendicitis and are ~ rm5upportcd by admissible evidencc.

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Alzoiia v Kapli~ii Index No. 10-45291 Page No. 2

The proponent of a summary judgment motion must make a prima Cacie showing of entitlement to .judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant suinmaiyjudgment it must clearly appear that no material and triable issue of fact is presented (Friends qfAiiimals v Associated Fur Mfrs., 46 NY2d 1065, 41 6 NYS2d 790 [ 19791; Sillman v Tweirtieth Century-Fox Film Corporatioii, 3 NY2d 395. 165 NYS2d 498 19571). The movant has the initial burden of proving entitlement to summary judgment ( Winegrad v N. Y. U. n4~rlical Center, 64 NY2d 85 1, 487 NYS2d 3 J 6 [ I 9851). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of thc opposing papers (Winegrad v N. K U. Medical Center, ,supra). Once such proof has been offered, the burden h c n shifts to the opposing party. who, in order to defeat the motion for sumniary judgment, must proffer evidence in admissible form ...and must "show facts sufficient to require a trial of any issue of fact" (CPLR 1212[bl: Zuckerman v City ofNew York,49 NY2d 557,427 NYS2d 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 (Cmtro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 19811).

I n support of this application, the moving defendant has submitted, inter alia, an attorney's affirmation; and copies of the suii~iiions complaint, defendant's answer, plaintiffs' verified bill of particulars; copies of the exaininations before trial of Jessica Alzona, Beatrice Alzona, and Romeo Alzona, each dated September 30, '01 I ; Carl Philip Kaplan, M.D. datcd November 14, 201 1 ; the infant's pediatric records maintained by Dr. tCaplan. and hospital records from Stony Brook University Hospital; and the affidavit of defendant's expert physician, Nikhil B. Shah, M.D.

Thc requisite elcnients of proof in a medical nialpractice action are (I) a deviation or departure fiom acccpted practicc, and (2) evidence that such departure was a proximate cause of injury or damage (Ho/tlonv Sprain Brook Manor Nursing Home, 253 AD2d 852,678 NYS2d 503 [2d Dept 19981, app denied 92 NY2d 8 1 8, 685 NYS2d 420 [ 19991). To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant's negligence was a substantial factor in producing the alleged injury (see Derdiarian v Felix Contracting Coup., 51 NY2d 308,434 NYS2d 166 f19801;Prete v Rafla-Demetrious, 224 AD2d 674, 638 NYS2d 700 [2d Dept 19961). Except as to matters within the ordinary experience and knowledge of laymen, cipert medical opinion is necessaiy to prove a deviation or departure from accepted standards of medical care and that such departure was a proxiniate cause of the plaintiff's injury (see Fiore v Galang, 64 NY2d 999, 489 NYS2d 47 1985); Lyoizs v McCauley, 252 AD2d 5 16, 5 17,675 NYS2d 375 [2d Dept], app denied 92 NY2d Si 4,681 NYS2d 475 [ I 9981; Bloom v City o f N e w York, 202 AD2d 465,465,609 NYS2d 45 [2d Dept 19941).
Nikliil B Shah, M.D. averred that hc is a physician licensed to practice medicine in New York a d is board certified in pediatrics and pediatric emergency medicine. He set forth his education and training and c.rpcriencc in pediatrics, and the records and materials reviewed in basing his opinions. Dr. Shah opined with a 1-casonabledegree of medical certainty that defendant Dr. Kaplaii did not depart from good and accepted standards of medical or pediatric practice, and that no treatment by Dr. Kaplan caused or contributed to any claimed injuries or damages that the infant plaintiff may have suffered.

Dr. Shah set fort11 that the infant plaintiff was born on October 3 1, 1997. On June 9, 2009, she felt ill and was picked up from school by her father. The following day, June I O , 2009, she still felt ill and was taken by Iicr parents to Stony Brook Hospital emergency room, where she was seen by the defendant Dr. Kaplan. She testified that she told Dr. Kaplan that her lower abdomen, especially on the right, hurt when he pressed on it and if licn he stopped pressing. and that she had nausea. but no vonijting, car pain, or throat pain. She was having prohlems with urinary burning. Dr. Kaplan's note indicated that she had a one day history of abdominal pain, clvsuria (pain with urination), headachc, no nausea, but that shc vomited the day prior. A strep test was

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Alzona v Kaplan Index No.10-45291 Page No. -3

performed as she had pharyngeal eiytliema (redness at the back of the throat). He also found that there was abdominal tenderness in both right and left lower quadrants, with no rebound tenderness, and the Psoas, Obturator and Rovsings's signs were negative, which, if positive, indicate that appendicitis may be present. Dr. Shah stated that Dr. Kaplaii testified that although these signs were negative, it did not rule out the possibility o C appendicitis. IIe continued that the lack of a significant number of white blood cells and nitrites in the urinalysis is indicativc that urinary tract infection is unlikely. Dr. Kaplan's discharge diagnosis on June 10, 2009 at 1 1 :15 a.m. was abdominal pain and strep pharyngitis. Amoxicillin, effective against strcp and urinary tract infections, was ordered. Ibuprofen for abdomiiial and headache pain was suggested. She was instructed to seek other medical help or to return to tlie emergency room if she felt worse. Dr. Shah continued that no further care and treatment was sought on June 10,2009 after the infant plaintiff was discharged from the emergency rooni. The infant`s pain increased slowly and steadily in 1he same area of her abdomcn throughout the day, evening, and night, accompanied with urinary burning, nausea, and imiiiting. as well as difficulty walking. That afternoon, Beatrice Alzona, the infant plaintiffs mother, took her 10 her see Dr. Rubin. her pediatrician, who then referred her back to the emergency room at Stony Brook. An abdoniinal ultrasound was conducted, followed by a CT scan, after which she was advised that she had a i uptured appendix. The infant plaintiff was then seen by Dr. Thomas Lee, the attending pediatric surgeon, and hy the pediatric surgery rcsident, who both agreed that the infant had a ruptured appendix. The treatment planned by Dr. Lee was for intravenous antibiotic administration, and laparoscopic appendectomy the following day on June 12, 2009. Dr. Shah indicated that Dr. Lee's note documented that the risks and benefits of the proposed s~irgery %ere described to the child's parents, who testified that they were not apprised of the same, but then stated they were apprised of a possible blockage and that she might not be able to have children. Dr. Shah further set forth that the medical record does not set forth the risks and benefits with specificity, nor is there a mention of possible complications from surgery, such as tlie specific risks of infertility or bowel 1 b s truc t i on.

Dr. Shah continued that postoperatively, the infant plaintiff had a delayed return to bowel function and 1 as treated with nasogastric suction for several days. A CT of the abdomen, taken on June 2 1, 2009, shlowed 2 abdominal abscesses which were treated by a CT guided interventional radiology drainage of the abdominal fluid through a small (Vi inch) abdominal incision on June 22, 2009, resolving tlie abscesses. At the time of her cleposition, the infant plaintiff testified that she was in the ninth grade, and participated in a marching band, s(~ccer. gym with no pain or restrictions. No medical care has been sought for the infant plaintiff to and dl2termine any condition associated with infertility or bowel obstruction.
Ilr. Shah opined that Dr. Kaplan conformed to the appropriate standard of care for the specialty of pediatric emergcncy medicine and the clinical situation presented by the infant plaintiff. He continued that Dr. Kaplan obtained an adequate history. conducted an examination of her throat and abdomen, conducted appropriate testing, and recorded his findings, which confirmed a positive rapid strep throat culture, negative UI inalysis, and little or no support for a finding of appendicitis on June 10, 2009, despite examination for spccific signs of appendicitis. Differential diagnoses were set forth as strep phaiyngitis with non-specific ;ibdonimaI pain. Dr. Shah set fot-th the bases for thc opinions rendered and stated that both clinical and lahoratory evidence present in tlie emergency room on June 10, 2009 indicated that Dr. Kaplan exercised reasonable judgnient in placing appendicitis as a very unlikely diagnosis on his list of differential diagnoses, i n a l t i ng his treating diagnosis as most likely correct. Based upon the circumstances, given the clinical and lab fludings confirmiiig strep pharyngitis. making appendicitis unlikcly, the use of ionizing radiation imaging tccliniqucs was not indicated on June 10, 2009, as it would have exposed the child to a significant dose of radiation. especially in a preadolescent female, for whom radiation could be particularly harmful and should not

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Alroiia v Kaplan Index No. 10-4529 1 Page No. 4

bc used Xvithout strong clinical indications for its use. Such indication did not exist on June 10, 2009, opined Dr. Shah. Wowevcr, on June 1 1, 2009, when there were positive signs consistent with appendicitis, including

significant fewr. rebound tendemcss, and positive Rovsing's sign, a basis supporting the use of CT scan imaging was indicated, which use outweighed the risks.

Dr. Shah also opined that despite the infant's parents acknowledging an understanding of the discharge instructions given by Dr. Kaplan. to follow up with her doctor or return to the emergency room, the parents did not seek medical attention for their daughter for more than twenty-four hours, despite her increasing pain. Had she been returned to the emergency room prior to the rupture of her appendicitis, she would have had a faster recovery, less pain. and a shorter hospital stay. An appendectomy would havc been necded in any event. Dr. Shah hrther opined that it was Dr. Lee's choice of surgery which was a significant factor in causing the complications claimed by the infant plaintiff. as Dr. Lee's surgical choices were made independent of thc time thc diagnosis of appendicitis was made, and independent of whether the appendix had ruplurcd. Additionally, Dr. Shah opined that therc is no rcasonable degree of medical certainty, and the plaintiff cannot prove with the available cvidence, when the child's appendix ruptured. He continued that the evidence of the location of the retrocecal abscess, as noted in Dr. Lee's operative report, effectively inasked any reasonable possibility of its diagnosis on June 10, 2009. Thus, plaintiffs` claim that the child suffered increased or extraordinary damages ;is a result of her appendix rupturing after she was seen by Dr. Kaplan on June 10,2009, remains unsupported by admissible evidence. Moreover, the plaintiffs claims of damages proximately caused by the rupture of the Appendix after the child was seen by Dr. Kaplan is unsuppoi-tcd. As related to claims of potential infertility and bowel obstruction, Dr. Lee`s operative report is silent on the description of the child's pelvic organs during bSurget-y, there has been no subsequent testing, imaging study, or direct visualization to determine the status and of her pclvic organs. Dr. Shah continued that there is no evidence to demonstrate such damages which are only C,peculatiw. frivolous, and unproven. Additionally, opined Dr. Shah, studies indicate that potcntial infertility in ;I l`emale patient with a ruptured appendix is not more common than in those patients who had never had a I uptured appendix.
Based upon a review of the evidentiary submissions and the expert opinions expressed by Dr. Shah, it is determined that defendant Kaplan has demonstrated prima facie entitlement to summary judgment disinissiiig the complaint.
To rebut a prima facie showing of entitlement to an order granting summary judgment by the defendant, tlic plaintiff must demonstrate the existence of a triable issue of fact by submitting an expert's affidavit of merit at testing; to a deviation or departure from accepted practice, and containing ai1 opinion that the defendant's acts or omissions were a competent-producing cause of the injuries of the plaintiff (see Lifiliitz v Beth Israel Med.

Or-Kings Highway Div., 7 AD3d 759,776 NYS2d 907 [2d Dept 20041; Domaradzki v Glen Cove OB/GYN 4 TSOCS,. 242 AD2d 282, 660 NYS2d 739 [2d Dept 19971). Here, the plaintiffs have opposed this motion by submitting an affirmation by their expert physician.' Although the defendant opposes this affirmation on a CPLR 3 101 (d) discovery basis, this court considers the plaintiffs' expert`s affirmation.

The plaintiffs' expert, a physician licensed to practice medicine in New York and board certified in pediatrics. set forth his experience and the records and materials reviewed in rendering his opinion, which he set
`The Court has conducted an in-camera inspection of the original unredacted affirmation and finds it to be identical in every way to the redacted affirmation in plaintiffs' opposition papers with the exception of the redacted expert`s name. In addition, the Court has returned the unredacted affirmation to the plaintiff`s attorney.

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4lrona v Kaplan Index No. 10-45291 Page No. 5

fbrtli with a reasonable degree of medical certainly. Ne set forth a description of the appendix and defined appendicitis as a swclliiig or inflammation of the appendix wliercin, when blocked, traps bacteria and irritates the appendix. He set forth the symptoms of appendicitis. which he stated can vaiy, but generally include localized right sided/lower quadrant abdominal pain, nausea, loss of appetite, vomiting. elevated white blood count. and low fever. There may be atypical localization of pain due to the anatomic position of the appendix. 1 Tsually. if there is no complication such as perforation, the appendix can be removed by a surgeon soion after it i s diagnosed. If appendicitis continues without treatment, it can rupture or perforate, spilling bacteria-laden intestinal contents into the abdominal cavity. causing peritonitis or a pus-filled pocket of infection (abscess) to thrm.

The plaintiffs' expcrt stated that appendicitis should be considered as a differential diagnosis in eveiy patient with abdominal pain, nausea and vomiting, especially in children who may have an atypical presentation. The plaintiffs' expert continued that a primary responsibility of the emergency room physician in this respect is to keep appendicitis in the differential until it is ruled out. Rebound tenderness and guarding are to be considcrcd upon examination of thc abdomen, as well as evaluating tlie Psoas sign upon flexion of the hip, the Obturator sign upon rotating the hip, or Rovsing's sign wherein Iliere is pain on the right side when pressing on the left side ofrhe abdomen. He continued that these are valuable indicators of inflammation, but not all paticnts have these signs. Tlicrefore, they have a low predictive value, and their absence does not rule out appendicitis. He stated that laboratory tests, a high white blood cell count, blood chemistries, and urinalysis should be considered and evaluated. Anorexia is often found early in tlie evolution of an appendicitis. He continued that a normal temperature and white blood cell count do not rule out appendicitis, and a positive pharyngeal strep test may be coincidental. but is not found with appendicitis. The plaintiffs` expert continued that due to the ionizing radiation exposurc with CT scan, abdominal ultrasound is the first imaging study of choicc in children, and is 75% to 90% sensitive for the diagnosis of (ippendicitis. Surgical consultation is required if appendicitis is not ruled out by clinical examination. `The plaintiffs' expcrt continued that when the surgeon diagnoses appendicitis, surgery is to be performed as soon as possible in an attempt to remove the appendix before it ruptures to prevent a much more severe illness, prolonged antibiotic treatment, and prolonged recovery. If the appendix has already ruptured, surgery can be delayed for a number of hours to allow for the administration o f antibiotics and intravenous fluids.
7'hc plaiirtiffs' cxpert opined that when Dr. Kaplan obtained the results of the urinalysis. he determined rhat a u r i m y tract infection was unlikely, but should he should have then looked elsewhere for the origin of the

child's abdominal complaints. He continued that the large amount of ketones in the urine required further investigation: that strep throat does not cause diffuse abdominal tenderness 011 palpation, as had been noted during the child's examination by Dr. Kaplan; and that Dr. Kaplan did not order complete blood count, imaging tests, or a surgical consult prior to discharging her from the emergency room, and did not obtain a complete history as he did not note that the child had anorexia. The plaintiffs' expert opined that these aforementioned failures were departures from good and accepted standards of medical care and treatment by Dr. Kaplan. He continued that these departures from the standard of care delayed the timely diagnosis of appendicitis prior to the appendix rupturing, the developmelit of ail abscess. the need for CT guided drainage of fluid collection, and tlic need for a prolonged hospitalization that the child suffered, as well as an increased likelihood of infertility due to resultant scar tissue formation. The plaintiffs' expel? further opined that it was departure from the stmdard or care by DI-.Kaplan not to rule out appendicitis prior to the discharge of the child after he evaluated h c ~ thus preventing a timely diagnosis of the child's condition. ,

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Alzonn v Kaplatn

Index No. 10-4529 1 Page No. 6

The plaintil-fs expert continued that when the child was seen the allowing day by Dr. Rubin, she had di f f b e abdominal tenderness and severe guarding, indicative of a rupture occurring between her emergency room lrisit with Dr. Kaplan and her visit with Dr. Rubin. She was sent by Dr. Rubin to the emergency room at Stony Brook due to increasingly severe pain, diarrhea and vomiting, and dysuria. Her temperature increased from 100 the day before, to 103.7, which the plaintiffs' expert stated is further indicative that the appendix ruptured between the emergency room visit with Dr. Kaplan and the visit with Dr. Rubin. Upon arrival1 at Stony Brook, the abdominal ultrasound did not identify a definitive distended appendix, but did show an "unusual tubular right lower quadrant structure." A CT scan was then performed with findings consistent with acute appendicitis and the child was admitted by Dr. Lee with a possible perforated appendix. Dr. Lee then performed laparoscopic appendectomy the followiiig day. The plaintiffs` expert stated that Dr. Lee found purulent fluid rn the pelvis which was drained. and the appendix was noted to be retrocecal and was removed. He contiiiued that the pathology report indicated a perforated acute appendicitis and periappendicitis with transmural necrosis. Several days later. she underwcnt a CT guided drainage of the collection of fluid, resolving her pain which continucd postoperatively.

Based upon the foregoing, there are conflicting opinions presented by the plaintiffs' and defendant's experts concerning whether or not Dr. Kaplan departed from good and accepted standards of care in treating the child on June 1G. 2009; when the appendix actually ruptured; whether the alleged injuries were proximately caused by the allcged delay by Dr. Kaplan in diagnosing appendicitis, or in its timely removal; and whether there was delay by thc treating surgeon Dr. Lee who did not remove the appendix until June 12,2009. after 1 laving diagnosed appendicitis on June 1 1, 2009. Thus, summaiy judgment is denied with respect to that part of application (001 ). With respect to that part of the defendant's application relative to the plaintiffs' allegations of damages on the issue of possible future infertility and/or bowel obstruction and/or future damages, it is determined that the plaintiffs' expert, except for his conclusory and unsupported opinion that the child suffered an increased likelihood of infertility due to resultant scar tissue formation, has not offered any evidentiary proof or bases fbr sucli opinion. Thus, partial summary judgment striking the plaintiffs bill of particulars with regard to those issues of possible future infertility and/or `bowel obstruction and/or future damages is granted, and are struck from the plaintiffs' bill of particulars.

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FINAL DISPOSXTTON

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NON-FTNAL



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