Preview:

Reilly v Forester 2009 NY Slip Op 32802(U) November 24, 2009 Supreme Court, Suffolk County Docket Number: 05-17145 Judge: Arthur G. Pitts 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.

[* 1]

INDEX NO. CAL. No.

05-17145 09-00 1961-MM

SUPREME COURT - STATE OF NEW YORK I.A.S. PART 43 - SUFFOLK COUNTY

,

i'.

1 loll.

ARTHUR G. PITTS .lustice of the Supreme Court

MOTION DATE 6-17-09 (#008) MOTION DATE 6-25-09 (#009 & #OlO) MOTION DATE 7-8-09 (#O 1 1) ADJ. DATE 9- 10-09 # 009 - MG Mot. Seq. # 008 - MG #Oll - M G # 010 - MG CHARLES G. EICHINGER, P.C. Attorneys for Plaintiff 1601 Veterans Memorial1 Highway, Suite 510 Islandia, New York 1 1?49

Plaintiff,
-

against -

FUMUSO, KELLY, DeVERNA, SNYDER, et al. Attorneys for Defendants Forester & Good

I-*ORESTER,M.D. (first name being ' i c * i i t i o i i y hcing the E.R. doctor on duty on January t j 2004 at 1500,ABU M.HAQUE,M.D.,BRIAN *I icIl~I1I,ING.U.D., PAUL LEE, M.D., CRAIG '  i I  L M I , M . D . , GOOD SAMARITAN I li )Cl'l'IAL MEDICAL CENTER, MOREY kl 1.IiU. M.D . and SOUTH BAY I  R l ) l O  ASVIJLAR ASSOCIATES, P.C.,
11 )I

I"

Samaritan 110 Marcus Boulevard, !Suite 500 Hauppauge, New York 11788 VARDARO & HELWIC;, LLP Attorneys for Defendant Haque 732 Smithtown Bypass Smithtown, New York 1 1787 SHAUB, AHMUTY, CITRIN & SPRATT, LLP Attorneys for Defendant Mehling 1983 Marcus Avenue Lake Success, New Yorlc 1 1042- 1056

j

Defendants.
-.

:

X

j

~i:i



read on these motions for summary i u d m a ; Noticc of Motion/ i p t m ilie 1 )Ilowing papers numbered 1 to 23 1-3; 4-7; 8-10: 11-14 ; Notice of Cross Motion and supporting papers _, 1 1 lion C,iusc and supporting papers iiic Altid') its and supporting papers 15-17; 18-20; 21-23 ; Replying Affidavits and supporting papers ; Othcr -;
<

? r

)
<

-

it IS,

.i!~.oiitinuing, n i t h prejudice, : ! c t ~ ~ t c d : it I S furtlier ant1

ORDERED that the motion (008) by defendant, Craig L. Shalmi, M.D., for an order the instant action as against him is considered under CIPLR 3217 (b) and is

[* 2]

O R D E R E D that the motion (009) by defendant, Paul Lee, M.D., for an order pursuant to CPLR anting sunimary judgment in his favor dismissing plaintiffs complaint and all cross claims is i ~r.trirctl ~ i n dit I S lurther
_'
I

2r ~

ORDERED that the motion (010) by defendant, Donald Forester, M.D., for an order pursuant to 1'1 R :2 I2 granting summary judgment in his favor dismissing plaintiffs complaint and all cross I J I : I I  I S planted; and it is further
ORDERbD that the motion (01 1 ) by defendants, Morey Klein, M.D. and South Bay , ~ (iio ascular Associates, P.C., for an order pursuant to CPLR 3212 granting summary judgment in i
' 1 i c x l i

ta.or dismissing plaintiffs complaint and all cross claims is granted.

in ibis medical malpractice action, plaintiff, Edward P. Reilly, as Executor of the Estate of d cwiii,iry Reilly, Deceased, seeks to recover damages for alleged departures in medical treatment
-cirticri.d 13) defendants from January 9, 2004 through January 12,2004. By way of the bill of xu-t ciiJar. p l ~ n t i f alleges that Lee, inter alia, failed to properly clear decedent for surgery, failed to f ippi ccs ate the tlecedent's underlying lupus condition and family history of cardiac problems, failed to 7 1 c w I be nicotine. products to prevent withdrawal, failed to communicate with decedent's orthopedic . i ~ igcon and other-providers, failed to followup with cardiac clearance, failed to properly review

Jccidcnt' cliart, and failed to properly treat the tachycardia causing the myocardial infarction.
rlic record reveals that decedent was admitted to defendant Good Samaritan Hospital Medical (hereinafter referred to as "the hospital") on January 9, 2004 after falling from a chair and i 1 t.l c Iiei- leg at work. Upon arrival at the emergency room at the hospital, she was informed that an 1 Lll1 1 ~n r c ~ ~ a l th,tt she fractured her right tibial plateau and would require surgery. Dlecedent was cd dlilittcd to the hospital by defendant Brian M. Mehling, M.D., an orthopedic surgeon, and defendant  w i ill ll:tclLie, h4.1)., decedent's internist. Defendant Morey Klein, M.D. of defendant South Bay JI ,ire aicular Associates, P.C. was called to perform a cardiology consultation and to provide surgical ~c,ir;ii~ce Decedent was to undergo surgery on Monday, January 12,2004. However, on January 11, 'OO I. ,lie complained of chest pressure while using a bed pan and became unresponsive shortly :imcatter Decedent was treated for a cardiac arrest and was subsequently intubated and transferred to t i w c ` c i ~ J ~ ; i imit. Defendant Paul Lee, M.D. was called to assess the decedent after cardiac care ~ -1,iirst.ri;itiori At 3:48 a.m., decedent arrested a second time. On January 12 at 12:091 p.m., decedent ~ ~ i  i x ~ aiiotlici~ icd cardiac arrest and expired at 12:15 p.m.
i

CTIICI

i

Phc elements of proof in an action to recover damages for medical malpractice are deviation or :iqwtui-e ti-om accepted practice in the medical community and evidence that such departure was a poiiiiatc cause of injury or damage (Lyons v McCauZey, 252 AD2d 516, 517, 675 NYS2d 375 [2d  k i l t IO08 I _ i l l dcwied 92 NY2d 8 14 [ 19981; Bloom v City of New York, 202 AD2d 465, 465, 609 2 1 C l d 45 I2d Dept 19941). To prove a prima facie case of medical malpractice, a plaintiff must c`i,ibI I sh that the defendant's negligence was a substantial factor in producing the alleged injury (see, Dcwiirrriart Felk Corztr. Corp., 51 NY2d 308, 434 NYS2d 166 [1980]; Prete v Rafla-Demetrious, .'? 4 D 2 d 6'74. 038 NYS2d 700 [2d Dept 19961.
17
I

[* 3]

Iktcndan: Craig L. Shalmi, M.D. moves for an order pursuant to CPLR 3217 to so-order a
.I p i i l a r i

ion o f discontinuance.
intl

Defendant Paul Lee, M.D. moves for summary judgment dismissing the

ti 1 I { 111

all cro3s claims asserted against him. Defendant Donald Forrester, M.D. moves for summary

i i i d i f n i t v t disniisnmg the

action and all cross claims asserted against him. Defendants, Morey Klein,

21 I1 :rnd South Hay Cardiovascular Associates, P.C. (hereinafter referred to as "the South Bay

ictcnd;ints") iiim e for summary judgment dismissing the action and all cross claims (assertedagainst
"'("

1

3

2 i!h regard to defendant Shalmi's motion, CPLR 3217 (b), relating to voluntary discontinuance ~rilcro I' the court, provides that "... an action shall not be discontinued by a party asserting a claim

upon order of the court and upon terms and conditions, as the court deems proper. After the ;JUW has bcen submitted to the court or jury to determine the facts the court may not order an action onrinued except upon the stipulation of all parties appearing in the action."
:+t-{yt

lltliough CPLR 3217 (b) authorizes a voluntary discontinuance by court order on motion of "a `iiserting ;I claim," this provision may not be the basis for a dismissal motion by a party defending I L i,uni unlcs;s tlx: party asserting the claim consents or joins in the motion (see, CPLR 3217 [b]; . Y l i ~ ~ m 1' q ~ (by.,67 NY2d 9 I 0, 501 NYS2d 8 10 [ 19861). Here, inasmuch as the plaintiff executed / ITT -,iiici stlpulniion and the remaining defendants did not oppose this motion, the Court concludes that all n i l ties consent to the discontinuance, with prejudice, of any claims against Dr. Shalmi. The Court, 1 iictctore. d e e m Dr. Shalmi's motion as one for an order dismissing, with prejudice, this action as . i ~ i a i n  him. and grants the motion. [
;w-~L

I`iiriiing to the motion by defendant Lee, in support, defendant submits, inter alia,the pleadings, :~rc ~ l o f partic~lars, decedent's hospital medical record, and the affirmation of la. Joseph Anto, h l the 1 I ) 1 1 Anto avers that he is duly licensed to practice medicine in the State of New York and is board 1 1 It is his opinion that the treatment rendered by Lee did not deviate from accepted standards of medical care. Defendant t sin cleccdcnt for the first time while on call for his partners with defendant South Bay I I dioimc-ular Associates, on January 1 1, 2004 at 1 :30 a.m. after decedent had received cardiac I cwscitatioii and was intubated. Lee spoke with decedent's husband at approximately 2:21 a.m. and I ~ o s p i staff who had cared for decedent. Lee spent approximately 90 minutes assessing decedent and ~~l itcricd i n hi deposition that he felt that the cardiac arrest was caused by her underlying coronary artery !!c.ns,. I cc requested a cardiac catheterization which was never performed due to a second cardiac ,irrrt ,it 3.38 a.ni. Lee inserted an intra aortic balloon pump at the bedside to stabilize the heart.
I I i' ,ind

.Lbittticd in intenial medicine with a sub-specialty in cardiovascular disease.

11 Aritn further states that a subsequent cardiogram was performed at 6:30 a.m. which showed 1at1:d S7 r;cgments and ventricular fibrillation, demonstrating that decedent had sustained an acute ti-icwor n ; ~ linyocardial infarction. He also noted that decedent was in cardiogenic shock with a poor l pi o p n a i s Lee's on-call period ended and did not see decedent after that time. Dr. Anto opines that the ilx e treatment was appropriately rendered to decedent by defendant Lee and that the actions taken by . pi` did not proximately cause decedent's injuries and death. Based on the above submissions, ~!c`fcii(l;int I,ce has made aprirnafacie showing sufficient to warrant judgment in his favor as a matter of
C:
i b -

8

[* 4]

cstablishiiig that he did not depart from accepted standards of medical care, shifting the burden to ~ ! ~  l 1 i t i to. demonstrate the existence of a triable issue of fact (see, Baez v Lockridge, 259 AD2d 573, il 1 h 0 Kl'SZti 496 (2d Dept 19991). Here, plaintiff has failed to oppose the motion. Accordingly, ,ietind,int 1,ec's inotion for summary judgment dismissing the action and all cross claims is granted.
<I! 17)

I I I I nrng t o the motion by defendant Forester, defendant submits, inter alia, the affirmation of ~ O I I C ~oiirad fiohe, M.D. Dr. Rohe avers that he is a physician duly licensed to practice medicine in the ! i u t c oI'Ncn York and is board certified in emergencymedicine. He opines that defendant Forester did ~ i i ~ ilate from accepted standards of care and that the treatment that he rendered to decedent did not ,I:I ,c (11 contribute to her alleged injuries including death. Upon her arrival at the hospital emergency ~ o o i i i .inti tiuring the four hours that decedent was under defendant Forester's care, decedent was in -,t,ihic i.onc1ition. and was hemodynamically sound with normal vital signs, no evidenice of tachycardia tixi no signs or smiptoms of an acute or impending myocardial infarction or thrombosis. Defendant ippl opriatcly evaluated decedent within a reasonable time after her presentation to the emergency room t i 11ic Iwspital on January 9, 2004. He reviewed and appreciated her relevant history, appropriately ijt'i ioi-inetl ;I focused exam and directed his treatment to address the decedent's acute right lower r  iicmirq condition, as was his role as an emergency room physician. Her internist, defendant Abu M. I lcicluc, iL1.1) q.as also present and examined decedent while in the emergency room and documented a l i t ~ ~ - i i i acat-diopulmonaryexamination, normal vital signs, and negative complaints of`dizziness or chest i
;)till

Di Iiohe further states that about 7:35 p.m. decedent was admitted to the hospital by the
,v7i

iopetlic wrgelm, defendant Brian M. Mehling, M.D. At that time defendant Forester effectively 4fcrred the care of the decedent to her attending physicians defendants Mehling and Haque. In sum, i 11 Rohc o p i n e s that defendant Forester met his obligations to this patient. He made the correct ( ! i c I i ~ l l ~ ~ofl s s fractured right knee, stabilized the patient with IV fluids, ice packs, pain medications, and timcl> rcfcrred hzr to appropriate specialists for admission and further management. Based on the above k i i t u i i i  $ i o n . defendant Forester has made a prima facie showing sufficient to warrant judgment in his i4iiI ,I `1 matter of law by establishing that he did not depart from accepted standardis of medical care, I iiiiltins tlic burden to plaintiff to demonstrate the existence of a triable issue of fact (see, Baez v i oceliridge. 5 up(!).f Iere, plaintiff has failed to oppose the motion. Accordingly, defendant Forester's ~ i ' o t ~ o n cumniary .judgment dismissing the action and all cross claims is granted. for
11~11

ouit now turns to the motion by the South Bay defendants, who submit, inter alia,the L. Mintz, M.D. Dr. Mintz avers that he is duly licensed to practice medicine in the i,itc o f U e w J'nrk and is board certified in Internal Medicine and sub-certified in Cardiovascular Ij~scases I IC opines that defendant Klein, in his cardiac consultation and cardiac clearance note, written 11 I IC decedent was in the emergency room, found no overt cardiac contraindications to surgery and I miiiended that medications be resumed post-operatively. . ' (
1 he
(
, i + ~ ~ l i - i i i , i t iof'G1iy on
j i

I11 hlintr, stated that defendant Klein was aware that decedent was a patient ivith the South Bay .!clentiant~for at least ten years prior to the instant admission and referred to the decedent's office record
iii~i iiiy
:CL

the consultation. Defendant Klein also noted decedent's past medical history and that the cdent h i e d recent episodes of chest pain, shortness of breath, palpitations, lightheadedness or

[* 5]

-

1iLlqw

1 Ic also compared decedent's electrocardiograms prior to admission and those performed in

which showed no acute changes. Dr. Mintz concurs with defendant Klein's t I ,ri:iat roii of decedent that she was hemodynamically stable and that there were no cardiac I ~ l i i ' a i i i d i c ~ i t i otos the surgery. n
i 11~'~ ~ i i i e r g c n q room,

ih h l i n t / further states that defendant Klein was not contacted again during decedent's I ( ! I I ~ I  W OuIn t i l January 12, after the decedent had sustained multiple cardiac arrests, was in multi-organ I
-1.

had developed a coagulopathy. It is therefore Dr. Mintz' opinion that defendant I / c l i i '  cardiac clearance of decedent on January 9,2004, in the emergency room was performed in i c i crid with good and accepted standards of medical care which did not proximately cause decedent's n ~ t i i and death. Based on the above submission, the South Bay defendants have made aprima facie IC<, . h )  ~ ~sufficient to warrant judgment in their favor as a matter of law by establishing that they did not ng lcpcu-t ti-om accepted standards of medical care, shifting the burden to plaintiff to demonstrate the Iicnc't' of a triable issue of fact (see, Baez v Lockridge, supra). Here, plaintiff has failed to oppose the O I I Accordingly, the South Bay defendants' motion for summary judgment dismissing the action twi ,111 CI'OS ciaillis is granted.
tim friiluic. and

-

I lic C oui? notes that defendant Mehling opposed all the above motions on the limited basis of in3 h i < Article 16 rights. CPLR Article 16 provides for several liability for noin-economic loss, t~ ~ i ~ t tlic I i a b i l i t j of a joint tortfeasor is found to be fifty percent or less of the total liability assigned to i i 111 iwrwns liable subject to specified exceptions (see, Marsala v Weinraub, 208 AD2d 689, 617 I 'i7d X O C ) [2d 1)ept 19941; CPLR 1601). Here, defendant Mehling is not entitled to Article 16 rights I  oyai nst the moving defendants inasmuch as he failed to submit admissible evidence in opposition to i ~ i c i iiiotions IIowever, he is not foreclosed from asserting any Article 16 defenses (asagainst any i ci iiLjii-liiigco-detendants, potential defendants, or non-parties to the action at trial.
CWI

4ccortfin~ly, motions by defendants Shalmi, Lee, Forester and the South Bay defendants are the ::I,tiitc.l 'The plaintiffs claims against defendants Shalmi, Lee, Forester and the South Bay defendants, k l i  v i s a l Iiei-ein,are severed and the plaintiffs remaining claims shall continue.

FINAL DISPOSITION

X

NON-FINAL DISPOSITION

[* 6]

2 1

K1t K t. AI> 4MS, P.L.L.C.

for Defendants Klein & South Bay Cardiovascular Associates, P.C. I clluc i ; 6 ~ S1101.c~ >s Yt.\ I'ork 11706
I~O!-IIC it) L 1



Download 2009_32802.pdf

New York Law