Gittler v. Pinsky

• Court: New York Supreme Court
• Writing for the Court: HON. DENISE L. SHER, Acting Supreme Court Justice.
• Citation: Gittler v. Pinsky, 2021 NY Slip Op 32971(U), Index 603576/19 (N.Y. Sup. Ct. Apr 30, 2021)
• Decision Date: 30 April 2021
• Docket Number: Index 603576/19
• Parties: ANDRICE GITTLER and JEREMY GITTLER, Plaintiffs, v. STEVEN H. PINSKY, M.D., ROCKVILLE ANESTHESIA GROUP, LLP, PERRY ROBERT STEVENS, MD., SOUND VIEW MEDICAL GROUP PLLC, MERCY MEDICAL CENTER, CATHOLIC HEALTH SYSTEM OF LONG ISLAND, INC. and NORTH SHORE UNIVERSITY HOSPITAL, Defendants. Motion Seq. No. 01

2021 NY Slip Op 32971(U)

ANDRICE GITTLER and JEREMY GITTLER, Plaintiffs,
v.
STEVEN H. PINSKY, M.D., ROCKVILLE ANESTHESIA GROUP, LLP, PERRY ROBERT STEVENS, MD., SOUND VIEW MEDICAL GROUP PLLC, MERCY MEDICAL CENTER, CATHOLIC HEALTH SYSTEM OF LONG ISLAND, INC. and NORTH SHORE UNIVERSITY HOSPITAL, Defendants.

Motion Seq. No. 01

Index No. 603576/19

Supreme Court, Nassau County

April 30, 2021

Unpublished Opinion

Motion Date: 11/20/2020.

PRESENT: HON, DENISEL, SHER Acting Supreme Court Justice.

SHORT FORM ORDER

HON. DENISE L. SHER, Acting Supreme Court Justice.

The following papers have been read on this motion:.

Papers Numbered
Notice of Motion (Seq. No. 01), Affirmation and Exhibits	1
Affirmation in Opposition to Motion (Seq. No, 01') and Exhibits	2
Affirmation in Reply to Motion (Seq, No. 011 and Exhibit	3

Upon die foregoing papers, it is ordered that the motion is decided as follows:

Defendants Steven H. Pinsky, M.D. ("Dr. Pinsky") and Rockville Anesthesia Group, LLP ("Rockville Anesthesia") move (Seq. No. 01), pursuant to CPLR § 3212, for an order granting summary judgment dismissing plaintiffs' Verified Complaint, with prejudice, as against them; and move for an order striking the names of the moving defendants from the caption. Plaintiffs oppose the motion (Seq. No. 01).

In support of the motion (Seq. No. 01), counsel for defendants Dr. Pinsky and Rockville Anesthesia asserts, in pertinent part, that, "[t]his is an alleged malpractice action arising from the

1

treatment and cars provided to the plaintiff, AndriceGittler ('patient', 'plaintiff, or 'Mrs. Gittler') for the period from January 3, 2016 through January 27, 2016. Plaintiff alleges that the defendants, including Dr. Pinsky, a pain management specialist, failed to timely diagnose a staphylococcus aureus ('staph') infection located in her right hip capsule. With regard to Dr. Pinsky, there was only an alleged delay of five days between the time he first treated the patient to when she was admitted to Mercy Medical Center ('Merey'), where the infection was ultimately diagnosed. Thus, any delay in diagnosis was medically insignificant and did not cause any of the alleged injuries, as opined by Dr. Pinsky's expert. It must be noted at the outset that plaintiff does hot allege that Dri Pinsky, or any of the co-defendants for that matter, actually caused the infection, as plaintiff herself admits she has no idea how she contracted the infection. She thus simply claims the defendants failed to timely diagnose the infection. In this regard, it is important to understand that the very nature of the infection is incredibly rare to have occurred in this nature, deep in the hip capsule, as staph typically presents on the exterior skin of a patient. Furthermore, the hip joint is a large, tight joint, which will ostensibly contain the infection. This prevents the infection from spreading systemically and manifesting clinical symptoms of infection, such as fever, diarrhea and nausea, thereby making it all the more difficult to diagnose. Perhaps most tellingly, the infectious disease specialist did not believe the patient had an infection on the first day of her admission to Mercy, despite elevated erythrocyte sedimentation fate('ESR', an Inflammatory marker which can indicateinfection) results. The orthopedic surgery service, who ultimately irrigated and debrided the infected hip capsule, also did hot believe the patient had an infection on the first day of the admission. Thus, it is factually and medically evident that there is no causal basis between any claimed injury and Dr. Pinsky's alleged failure to diagnose the infection merely five days earlier. Also of significance, when

2

Mrs: Gittler first presented to Dr. Pinsky, a pain management specialist, on January 8, 2016, she was referred to him by co-defendant Dr. Perry Robert Stevens ('Dr. Stevens') with a working diagnosis of sciatica versus lumbar radiculopathy and had undergone an MRI, which revealed bulging discs at the L3-4 and L4-5 levels of the: patient's lumbar spine with impingement on the thecal sac. Thus, the patient's complaints of radiating pain from her lower back to her right knee Were consistent with Dr. Stevens' differential diagnosis and the MRI results. Accordingly, Dr. Pinsky's administration of epidural steroids to the L3-4 andL4-5 levels on January 11, 2016 was properly indicated and within the standard of care for a pain management specialist, as explained by Dr. Pinsky's expert Two days later, on January 13, 2016, the patient advised Dr. Pinsky that her pain remained severe following the injections, and he thus properly referred her to the emergency department at Mercy for further treatment, where she was ultimately diagnosed with (sic) staph infection to her right hip capsule two days later on January 15, 2016. Furthermore, Dr. Pinsky is entitled to and in fact it is sound medical practice to rely on the other specialists directing the care of the patient. This includes the physicians who treated the patient prior to Dr. Pinsky, including Dr. Stevens, a neurologist, who had diagnosed a radicular lumbar condition, and the physicians at co-defendant facility North Shore University Hospital ('North Shore'), who diagnosed the patient with a hip sprain/strain, as well as the subsequent providers at Mercy, including the hospital's infectious disease service and orthopedic surgery team. For these reasons, and as further stated below, there is flatly no medical or factual evidence that Dr. Pinsky departed from accepted medical care or that any of his care caused the patient's alleged injuries. Moreover, there is no evidence that any alleged deviation on his behalf caused any of the alleged injuries, including a delay in diagnosis of the infection which was not done until two days into the Mercy admission, or otherwise altered her course, including the irrigation and debridement

3

procedure. Also, other than plaintiff's (sic) bald allegations in the complaint regarding an alleged lack of informed consent, there is no basis for any causal relationship for any such inadequate consent for the epidural steroid injections, as plaintiff does not allege this procedure caused the infection. Therefore, Dr. Pinsky and Rockville Anesthesia respectfully request that this Court grant this motion in its entirety and dismiss all claims against them, with prejudice, and strike their names from the caption."

In further support of the motion (Seq. No. 01), counsel for defendants Dr. Pinsky and Rockville Anesthesia submits the transcripts from the Examinations Before Trial testimony of plaintiffs, defendant Dr. Pinsky, defendant Perry Robert Stevens, M.D. ("Dr. Perry"), and the two (2) witnesses who testified on behalf of defendant North Shore University Hospital, Dr. Robert Wighton and Dr. Megan Slowey. See Defendants Dr. Pinsky and Rockville Anesthesia's Affirmation in Support Exhibits F-K.

Counsel for defendants Dr. Pinsky and Rockyille Anesthesia also submits the expert affirmation of Christopher G, Gharibo, M.D. ("Dr. Gharibo"). See Defendants Dr. Pinsky and Rockville Anesthesia's Affirmation in Support Exhibit Q. Dr. Gharibo asserts, in pertinent part, that, "[plaintiff, Andrice Gittler ('Gittler, 'patient' or 'plaintiff), has alleged that Dr. Pinsky, and co-defendants North Shore University Hospital ('North Shore') and Dr. Perry Robert Stevens ('Dr. Stevens') failed to timely diagnose a staphylococcal aureus ('staph') infection in her right hip capsule, which was diagnosed on January 15, 2016 when plaintiff was admitted to Mercy Medical Center ('Mercy'). It must be noted at the outset mat it is incredibly rare for any patient to develop a staph infection deep in the hip capsule, as this type of infection most commonly manifested (sic) externally on the skin. Further, given the nature of the hip joint, which is a large, tightly encapsulated joint, an infection there would typically be localized to the

4

hip and thus not present clinically with other systemic symptoms, making it all the more difficult to diagnose or suspect. Perhaps most significantly, the infectious' disease specialist at Mercy Medical Center himself, Dr. Maqsood Alam, did not initially believe the patient's pain was due to a hip infection even when the patient's erythrocyte sedimentation rate CESR, an inflammatory marker) lab test was high, but rather also believed the pain was associated with her lower back condition. Thus, it would not be within the standard of care for a pain management specialist, such as Dr. Pinsky, to have considered such an infection when he treated Mrs. Gittler several days earlier when she was presented at his office on January 8, 2016 with pain radiating from her lower back and a positive MRI showing disc bulge with impingement at the L3-4 andL4-5 levels of the lumbar spine, when he made me diagnoses of degenerative lumbar conditions or when he treated these (sic) conditions on January 11, 2016 when he performed epidural steroid injection to those levels of her lumbar spine. Accordingly, as further set forth below, I find with a reasonable degree of medical certainty that Dr. Pinsky did not depart from accepted medical practice, nor did the limited pain management care he provided cause and/or contribute to the patient's alleged injuries, including the aforementioned staph infection of her right hip or necessitate the irrigation and debridement procedure she ultimately underwent." See id

Dr. Gharibo further contends, in pertinent part, that, "Dr. Pinsky, an anesthesiologist with a pain management subspecialty, rendered adequate and proper treatment to the patient, Andrice Gittler, As indicated above, this patient was ultimately diagnosed with a staphylococcal aureus infection of her right hip capsule, which is deep in the hip joint. This is significant in that contracting (sic)...