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Kotler v Swersky
2003 NY Slip Op 30001(U)
January 27, 2003
Supreme Court, Kings County
Docket Number: _230029/1751
Judge: Ariel E. Belen
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publication.




[* 1 ]
At an IAS Term, Part                                                                    of the Supreme
Court of the State of New York, held in and
for the County of Kings, at the Courthouse,
at Civic Center, Brooklyn, New York,    the
day of January, 2003
P R E S E N T :
HON. ARIEL E. BELEN,
Plaintiffs,
- against -                                                                             Index No.
STEVEN SWERSKY, MD., ROBERT J. KLINGLER,
M.D.,                                                                                   BETH ISRAEL MEDICAL CENTER,
Defendants.
The                                                                                     papers numbered  1 to 5 read on this motion:
                                                                                                                                       Papers Numbered
Notice of                                                                               to Show Cause/
Motion and
Affidavits (Affirmations) Annexed                                                                                                      1
Opposing Affidavits (Affirmations)                                                                                                     2
Reply                                                                                   (Affirmations)                                 3
Further Opposition                                                                      Affidavit (Affirmation)                        4
Other Papers                                                                            Sur-Re                                         5
Upon the foregoing papers, defendant Steven Swersky, M.D., moves for an order,
pursuant    CPLR 32 12, granting summary judgment dismissing plaintiffs'                as
asserted ngainst him.'
Simultaneously therewith, defendants Robert J. Klinger and Beth Israel Medical Center
for summary judgment.  Plaintiffs did not                                               said motion, which was granted by
an order of this court dated May 1,2002.




[* 2 ]
instant action arises out of Dr. Swersky’s treatment of plaintiff Miriam
during                                                                                             fourth pregnancy in  1998.  Dr. Swersky obtained his M.D. degree from New
Jersey                                                                                             College in 1977, completed his residency in obstetrics and gynecology in
1981, and did a fellowship in high risk obstetrics at Columbia Presbyterian from 1981 to
1983. Fotlowing the fellowship, Dr. Swersky worked as the physician in charge of high risk
obstetrics at Beth Israel from 1983 to 1989 and also maintained his own private practice. In
1989, Dr. Swersky left the high risk obstetrics position at Beth Israel in order to open his own
office and eventually became associated with Drs. Klinger and Dori, although he did
maintain his privileges at Beth Israel.  In 1997, Dr. Swersky’s license to practice medicine
was                                                                                                for a two-year period, but the suspension was stayed, which allowed him to
                                                                                                   continue to practice as a physician. At this time, the state licensing authorities also
Dr.                                                                                                on probation with conditions that required him to obtain approval from
a                                                                                                  person before he administered Petocin  (a drug used to induce labor) or
performed a caesarian section.
In October or November  1998, Dr. Swersky resigned his privileges at Beth Israel
because    had violated the probation.  Shortly after resigning his privileges at Beth Israel,
he applied for privileges at New York University Hospital Downtown Beekman
Although he was initially told that he might have temporary privileges within
four days, he eventually learned                                                                   his application was unlikely to be accepted and
Plaintiff Samuel Kotler is Miriam Kotler’s husband and all of Samuel Kotler’s claims
are                                                                                                in nature. All singular references to plaintiff                                           to Miriam Kotler.
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[* 3 ]
withdrew his application.  Dr. Swersky ultimately obtained privileges at                            Island
Hospital    March 1999.
Plaintiffs three previous pregnancies, prior to the 1998 pregnancy at issue here, had
resulted in live children, although her third pregnancy had resulted in a premature                 by
way of a caesarean section in December  1995.  Dr. Swersky had served as plaintiff‘s
during the course of plaintiffs third pregnancy, but one of his
partners had performed the caesarean section.
With respect to her fourth pregnancy, plaintiff first saw Dr. Swersky on July 6,     1998.
As of thai date, the gestational age was estimated as 14.3 weeks. Dr. Swersky saw plaintiff
at regular intervals from July 6,  1998 through October 22,  1998.  On October 22,  1998,
plaintiffs cervix was 2 centimeters dilated. In light of the degree of dilation, and
of her                                                                                              history of premature birth, Dr. Swersky prescribed  Indomethacin to relax
                                                                                                    plaintiffs uterus and to prevent premature labor and recommended bed rest for plaintiff.
                                                                                                    At  her  deposition,  plaintiff  testified  that  she  began  to  experience  itching  at
                                                                                                    approximately 30 to 3 1 weeks into her pregnancy. Plaintiff noted that she had experienced
similar itching during                                                                              last                                                                                         of                          and, although she stated
                                                                                                    that she had not discussed the itching during her 1995 pregnancy with Dr.                                                                           at an
office visit, she asserted that she had made at least three telephone calls to his office to
complain  about  the  itching  she  had  been                                                       Plaintiff  stated                                                                            she
3
To the extent that Dr. Swersky submits that plaintiff, in her corrections to her
deposition testimony, “recanted” her assertion that she told Dr. Swersky about the itching during
1995                                                                                                i s                                                                                          plaintiff simply withdrew   that
discussed the itching at an office visit, and did not withdraw her testimony that she told him
about the itching over the telephone.
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[* 4 ]
informed Dr. Swersky about the itching she was experiencing during the course of                 1998
pregnancy and the itching she had experienced during her previous pregnancy at the next
scheduled visit on November 5, 1998. According to plaintiff, Dr. Swersky did not
to remember that she had suffered similar itching in 1995 and informed her that                  was
no need for concern since itching is a normal discomfort associated with pregnancy. Plaintiff
believed                                                                                         Dr. Swersky                                            some medication for her to alleviate the itching feeling
at that visit.
asserted that this itching feeling increased in intensity over the next couple
of weeks, that she developed scabs and sores because she was unable to stop scratching, and
that the medication prescribed by Dr. Swersky, showers, and skin salves provided no relief.
Plaintiff iestified that she again discussed her itching complaints with Dr. Swersky at the
November 9 and November 16, 1998 office visits. She also testified that while Dr. Swersky
observed the scratch marks and scabs on her body on those dates, he merely                                                                              his
prior statement that the itching was normal and not anything to be concerned about.
In contrast, Dr. Swersky’s                                                                       contain no reference to a                              of
itching. Further, Dr. Swersky, at his deposition, testified that plaintiff did not complain of
itching  until  she  was  in  the  hallway  leaving  Dr.  Swersky’s  offices  following  the
November  16, 1998 visit, when                                                                   mentioned that her arms were itching a                 bit.
Dr. Swersky examined plaintiffs                                                                  but did not see any signs of significant scratching.
Dr. Swersky prescribed an antihistamine in order to help relieve the itching.  Dr. Swersky
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[* 5 ]
testified that his office records do not mention this complaint because it had been made in
passing after the office visit was complete.
At one of these early or middle November  1998 office visits, Dr. Swersky told
plaintiff that he had resigned his privileges at Beth Israel and that in light of his application
at NYU Beekman he thought he might shortly have privileges there.  In addition,  he told
plaintiff that if he did not have privileges when she went into labor, one of his partners would
handle the delivery.
Dr. Swersky next saw plaintiff on the morning of November 19, 1998. At that time,
the fetus                                                                                           at 34 weeks, plaintiff was 3-4 centimeters dilated and plaintiff was having mild
contractions.  As Dr. Swersky did not have privileges at any hospital on that date, he sent
plaintiff to one of his partners, Dr. Klinger, who upon examining plaintiff determined that
she did not appear to be in labor. During his examination, Dr. Klinger noted that the fetal
movement was good.  Dr. Klinger prescribed a medication to relax the uterus and prevent
contractions from developing in order to delay delivery.
                                                                                                    laintiff's   contractions                                                          in                                                                      during  the  nipht
November 19 and                                                                                                                                                                        nto the morning of November 20.  Plaintiff went to Beth Israel, where
first a                                                                                             and                                                                                then  Dr. Dori,  another of Dr.  Swersky's  partners,  were unable to
obtain a                                                                                            heartbeat.  Plaintiff thereafter gave birth to a stillborn child.
Plaintiffs  commenced the  instant action  in  September                                            1999.   In the  amended
complaint, plaintiffs pleaded six causes of action. In the first cause of action, premised on
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[* 6 ]
medical malpractice, plaintiffs alleged that Dr. Swersky negligently failed to diagnose and
treat plaintiff for obstetric                                                                  and that                                                                            failure led to damage to plaintiffs liver
and                                                                                            the stillbirth.  The second cause of action is premised on lack of
                                                                                               consent.  The third cause of action is for loss of services. The fourth cause of                                                                                                is
premised on fraud based upon Dr. Swersky’s alleged representations that he was a specialist
in high-risk pregnancies and that he would deliver her baby at Beth Israel.  The fifth cause
of action is premised on false advertising under General Business Law                          349 (a) and 350
based upon Dr. Swersky’s alleged representations that he was a specialist in high-risk
and a sign in his office to the same effect.  The sixth cause of action is for
                                                                                               attorneys’ fees pursuant to General Business Law                                                                                                                                350-e (3).
                                                                                                                                                                                   Medical Malpractice
                                                                                                                                                                                   The requisite elements of proof in a medical malpractice action are a deviation or
                                                                                                                                                                                   departure from accepted medical practice and evidence that such departure was a proximate
cause                                                                                          or damage (see Holbrookv                                                                                                                                                        Med. Ctr., 248
v       City of                                                                                202                                                                                 465).                                                                                       in any           the proponent
of a summary judgment motion in a medical malpractice case must make a prima facie
showing of entitlement to judgment as a matter of law through the submission of admissible
evidence sufficient to show the absence of any material issue of fact on any relevant issue
4
Obstetric cholestasis is a condition that occurs during pregnancy, the main symptom of
which is                                                                                       pruritus or itching. The condition causes the bile flow to slow and can result in
changes in the mother’s liver cells, which then release enzymes into the blood. Obstetric
cholestasis can cause fetal death.
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[* 7 ]
                                                                                                 raised by the pleadings (see Alvarez v Prospect Hosp., 68                                                                                                         320,324; Zuckerman v City
York, 49                                                                                                                                                     557, 562; Stone v Continental Ins. Co., 234                                                           282,284).  Once
                                                                                                                                                             a doctor   hospital has shown, prima facie, that there was no negligence in the treatment of
                                                                                                                                                             the plaintiff, a plaintiff must submit evidentiary facts in order to demonstrate the existence
of a                                                                                                                                                         issue of fact sufficient to rebut the prima facie showing (see Alvarez, 68
                                                                                                 at 320; Fileccia v Massapequa Gen. Hosp., 63                639,                                                                                             99   796; Toledo v
Ordway, 208                                                                                      5                                                           18-5 19).
                                                                                                                                                             In support of his motion for summary judgment, Dr. Swersky submits an affirmation
from                                                                                                                                                         H. Debrovner, M.D., a physician board certified in obstetrics and gynecology,
                                                                                                                                                             in which he relied upon Dr. Swersky's testimony that plaintiff had not advised him of the
itching,                                                                                                                                                     primary symptom of obstetric cholestasis, until the November 16, 1998 visit. In
any                                                                                                                                                          Dr. Debrovner  asserts that Dr.  Swersky correctly responded  to plaintiffs
complain1  and that plaintiff  did not  suffer any permanent  injuries because  obstetric
cholestasis is a condition which terminates at the end of the pregnancy. Dr. Debrovner states
that the                                                                                         of permanent injury is supported by a                       acid
weeks after the stillbirth, which showed that plaintiffs bile acid levels had returned to
normal.
Swersky also submits his own deposition testimony in which he stated that the
for obstetric cholestasis is to relieve the itching (also referred to as pruritus)
through antihistamines and to wait to fetal maturity to deliver the infant. Dr. Swersky stated
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[* 8 ]
that the condition is transitory and that no damage is done to the mother’s liver, which is
normal                                                                                                   delivery.  Although Dr. Swersky was aware that some doctors had treated
obstetric cholestasis with Cholestyramine to reduce the liver enzyme levels, he noted that
there were some questions about the drug’s
Even if plaintiffs deposition testimony is accepted, and Dr. Swersky should have
been                                                                                                     of  plaintiffs  itching  at  an  earlier  point  and  should  have  considered a
                                                                                                         diagnosis of obstetric cholestasis, Dr. Swersky’s testimony shows that there is no evidence
                                                                                                         he could have managed her care any differently.  Further, in evaluating the evidence
                                                                                                         by Dr. Swersky, the court notes that New York does not allow for a                                                            death
action                                                                                                   the death of an unborn child (see Endresz v Friedberg, 24                                     478,482).  In
addition,                                                                                                is well settled that absent independent physical injuries, a mother may not
recover for emotional and psychic harm as the result of a still birth” (Prado v Catholic Med.
Ctr., 145                                                                                                614, 615; see also                                                                            v Virostek, 65                  931, 932-933).   Dr.
Swersky’s evidence shows that plaintiff suffered from a transitory condition related solely
to                                                                                                       This                                                                                          following the stillbirth, may   be
deemed a distinct or independent physical injury to plaintiff  (see Scott v Capital Area
Community Health Plan, Inc., 191                                                                         772, 773-774; Guialdo v Allen, 171                                                            535,
his deposition, Dr. Swersky testified that he could not testify as to whether or not
plaintiff had obstetric cholestasis without the results of a bile acid test. No such test results were
available   the time of his deposition. In a further affirmation in opposition, plaintiffs have
submitted a copy of test results showing that on the date of the stillbirth, Ms. Kotler underwent a
bile acid test showing that she had an  elevated bile acid level. Counsel for plaintiffs asserts that
he only                                                                                                  a copy   there test results after filing their initial opposition papers.
a




[* 9 ]
536; see also Parsons v Chenango                                                                       Hosp., 2 10                                                         847,848;        v Jansen, 188
769,770).
In opposition, plaintiff  submits an expert affirmation  from an obstetrician and
gynecologist licensed in New Jersey6 who asserts that Dr. Swersky departed                             accepted
practice in failing to recognize that the pruritus was a symptom of obstetric cholestasis, in
failing to offer treatment, in failing   monitor plaintiffs liver enzyme blood levels, and in
failing to offer a coherent managment plan. Plaintiffs expert asserts that proper monitoring
of plaintiffs liver enzyme levels could have prevented the stillbirth.
Plaintiffs’ expert has failed to elaborate on what form the treatment should                                                                                               taken
and failed to address Dr. Swersky’s assertions that proper treatment involved attempting to
relieve the pruritus with antihistamines and delaying delivery. Moreover, plaintiffs’ expert
has failed to                                                                                          any independent physical injury suffered by plaintiff which would
support a cause of action for emotional injuries resulting                                             the stillbirth. The conclusory
affirmation of plaintiffs expert thus fails to supply an evidentiary basis warranting a
conclusion that plaintiff                                                                              independent physical injuries, that Dr.                             departed
from accepted medical practice or that any such departure made any difference in the proper
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his reply papers, Dr. Swersky asserts that this purported affirmation was without
probative force because only doctors licensed in New York may submit unsworn affirmations.
Plaintiffs thereafter submitted further opposition papers with a sworn affirmation by plaintiffs’
expert attached as an  exhibit. This sworn affirmation is otherwise the same as the expert
affirmation submitted in plaintiffs’ initial opposition papers. In his sur-reply papers, Dr. Swersky
states that it would be improper for the court to consider the sworn affirmation submitted in
further opposition. Given the resolution of this motion, the court has not addressed Dr.
the                                                                                                    affirmations                                                        by plaintiff.
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[* 10 ]
            care of plaintiff (see Zawadzki v Knight, 76                                                                                                    898,899-900; Fhima v Maimonides Med.
Ctr., 269                                                  559, 560; Kaplan v Hamilton Med. Assocs., 262                                                    609, 610; Yasin v
            Manhattan Eye, Ear   Throat Hosp., 254         281,283).
                                                           expert also asserts that Dr. Swersky departed from accepted medical
practice                                                   failing to inform Mrs. Kotler that he did not have privileges at Beth Israel.
                                                           Assuming. that this was a departure, it was a departure that is irrelevant in the absence of
evidence                                                   the course of treatment followed by Dr. Swersky was improper.
                                                           Informed Consent
                                                           As the alleged failure in Dr. Swersky's treatment involved a failure to                                                                       and
                                                           treat plaintiff and did not involve an invasion of plaintiff's  physical integrity,                                                           has
not                                                        a cause of action based upon a lack of informed consent (see                                     v                                            242
            697,698; Etkin v Marcus, 74                    633).
                                                           Fraud
                                                           is also entitled to summary judgment dismissing the fraud cause of action.
Even if                                                    were not rcquircd by the fact that plaintiff                                                     failed to allege injuries
separate                                                   distinct from those alleged in the medical malpractice claim (see Luciano v
232         378,                                           plaintiff  has  failed  to  show  the  fraud                                                                                                  of
                                                           misrepresentation, scienter and injury or damages (see Matter of Garvin, 2 10                                                                 333,333
                                                           [elements of fraud are (1) misrepresentation of a material fact, (2) scienter, (3) justifiable
            reliance, and (4)injury or damages]).                                                                                                           there is no evidence that Dr. Swersky made




[* 11 ]
any assertion that he had privileges at Beth Israel at a time when he did not have such
privileges.  Further, Dr. Swersky’s deposition testimony shows that he had training and
experience with respect to high risk pregnancies. Finally, even assuming the other elements
of fraud were satisfied, plaintiffs have failed to show any injury or damage, since they have
failed to                                                                                                                                                                              that the course of treatment followed by Dr. Swersky was improper (see
Polovy   Duncan, 269                                                                            1 1 1,   1 12).
False                                                                                                                                                                                  Attornev’s Fees and Loss of Services
                                                                                                                                                                                       Given Dr. Swersky’s training and experience with respect to high risk pregnancies,
                                                                                                                                                                                       plaintiffs have failed to show that his sign stating that he specialized in high risk pregnancies
                                                                                                constituted a deceptive act under General Business Law                                                                                                                                     349 or false advertising under
General Business Law                                                                            350 (see                                                                               v Chemical Bank, 95                                                                                 1-32). Even if
                                                                                                there was  factual issue with regard   deceptiveness, plaintiffs have failed to show
or injury   a result thereof (see Small                                                                                                                                                Tobacco Co., 94                                                                                     General
Business                                                                                        350-e                                                                                  In the absence of a violation of General Business Law                                               349
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[* 12 ]
or 350, plaintiffs are not entitled to attorney’s fees under General Business Law            349 (h)
or 350-e (3).
Finally, since plaintiff Miriam Kotler has no viable claim against Dr. Swersky,
plaintiff Samuel Kotler’s cause of action for loss of services must likewise be dismissed.
Accordingly, Dr.  Swersky’s motion for summary judgment  is granted and the
is dismissed.
This constitutes the decision, order and judgment of the court.
E N T E R ,
J.   S. C.
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