Glicksman v. Rosenzweig, 2009 NY Slip Op 31698(U) (N.Y. Sup. Ct. 7/13/2009), 11770/07

• Decision Date: 13 July 2009
• Docket Number: Motion Sequence: 001,11770/07
• Citation: 2009 NY Slip Op 31698
• Parties: SHARON E. GLICKSMAN and STEVEN GLICKSMAN, Plaintiff(s), v. STUART IRA ROSENZWEIG, M.C., RICHARD FEDERBUSH, M.D., RICHARD FEDERBUSH, M.D., P.C., NORTH SHORE UNIVERSITY HOSPITAL AT SYOSSET and NORTH SHORELONG ISLAND JEWISH HEALTH SYSTEM, INC., Defendant(s).
• Court: New York Supreme Court

Page 1

2009 NY Slip Op 31698(U)

SHARON E. GLICKSMAN and STEVEN GLICKSMAN, Plaintiff(s), v. STUART IRA ROSENZWEIG, M.C., RICHARD FEDERBUSH, M.D., RICHARD FEDERBUSH, M.D., P.C., NORTH SHORE UNIVERSITY HOSPITAL AT SYOSSET and NORTH SHORELONG ISLAND JEWISH HEALTH SYSTEM, INC., Defendant(s).

11770/07

Motion Sequence: 001

Supreme Court, Nassau County

July 13, 2009

Motion Submitted: May 29, 2009

KAREN V. MURPHY, Judge

This motion by Richard Federbush, M.D. and Richard Federbush, M.D., P.C. ("Dr. Federbush"), for an order pursuant to CPLR § 3212 granting him summary judgment dismissing the complaint against him is denied.

In this medical malpractice action, the plaintiffs seek to recover damages for the defendants' failure to diagnose Sharon Glicksman's pneumonoccal sepsis when she was treated in the emergency room at North Shore University at Syosset on January 13, 2006. The defendant Dr. Federbush seeks summary judgment dismissing the complaint against him on the grounds that he never treated Ms. Glicksman, and even if he participated in her treatment, he was not responsible for her care or discharge.

"On a motion for summary judgment pursuant to CPLR § 3212, the proponent 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." (Sheppard-Mobley v. King, 10 A.D.3d 70, 74, 778 N.Y.S.2d 98 (2d Dept, 2004), aff'd. as mod, 4 N.Y.3d 627 (2005), citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986); Winegrad v. New York Univ. Med. Or., 64 N.Y.2d 851, 853, 476 N.E.2d 642,487 N.Y.S.2d 316 [1985]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." (Sheppard-Mobley v. King, supra; Alvarez v. Prospect Hosp., supra; Winegrad v. New York Univ. Med. Ctr., supra). If the movant meets his burden, the burden shifts to the opposing party to establish the existence of a material issue of fact. (Alvarez v. Prospect Hosp., supra). The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference. See, (Demshick v. Community Housing Management Corp., 34 A.D.3d 518, 521, 824 N.Y.S.2d 166 (2d Dept, 2006), citing Secof v. Greens Condominium, 158 A.D.2d 591, 551 N.Y.S.2d 563 [2d Dept, 1990]).

"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 injury (quotations omitted)." (Sampson v. Contillo, 55 A.D.3d 588, 865 N.Y.S.2d 634 (2d Dept, 2008), citing Nichols v. Stamer, 49 A.D.3d 832, 854 N.Y.S.2d 2 (2d Dept, 2008), quoting Berger v. Becker, 272 A.D.2d 565, 565, 709 N.Y.S.2d 418 [2d Dept, 2000]). "In a medical malpractice action, the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether the defendant physician [and/or hospital were] negligent." (Taylor v. Nyack Hospital, 18 A.D.3d 537, 795 N.Y.S.2d 317 [2d Dept, 2005] citing Alvarez v. Prospect Hosp., supra). Thus, a moving defendant doctor and/or hospital has `"the initial burden of establishing the absence of any departure from good and accepted medical malpractice or that the plaintiff was not injured thereby.'" (Chance v. Felder, 33 A.D.3d 645, 823 N.Y.S.2d 172 (2d Dept, 2006) quoting Williams v. Sahay, 12 A.D.3d 366, 368, 783 N.Y.S.2d 664 (2d Dept,. 2004), citing Alvarez v. Prospect Hosp., supra; Johnson v. Queens-Long Island Medical Group, P.C., 23 A.D.3d 525, 526, 806 N.Y.S.2d 614 (2d Dept, 2005); Taylor v. Nyack Hospital, supra; see also, Thompson v. Orner, 36 A.D.3d 791, 828 N.Y.S.2d 509 [2d Dept, 2007]).

A moving defendant must address and rebut the specific factual allegations set forth in the complaint and the Bill of Particulars. (Terranova v. Finklea, 45 A.D.3d 572, 845 N.Y.S.2d 389 (2d Dept., 2007); Hutchinson v. Berenstein, 22 A.D.3d 527, 801 N.Y.S.2d 766 (2d Dept., 2005); citing Seefeldt v. Johnson, 13 A.D.3d 1203, 787 N.Y.S.2d 594 (4^th Dept.,2004); Vinviniv. Insel, 1 A.D.3d 351, 766 N.Y.S.2d 569 (2d Dept, 2003); Muscatello v. City of New York, 215 A.D.2d 463, 627 N.Y.S.2d 567 (2d Dept., 1995); Ritt by Ritt v. Lenox Hill Hosp., 182 A.D.2d 560, 582 N.Y.S.2d 712 [1^st Dept, 1992]). "[B] are allegations which do not refute the specific factual allegations of medical malpractice in the bill of particulars are insufficient to establish entitlement to judgment as a matter of law." (Grant v. Hudson Valley Hosp. Center, 55 A.D.3d 874, 866 N.Y.S.2d 726 (2d Dept., 2008), citing Berkey v. Emma, 291 A.D.2d 517, 518, 738 N.Y.S.2d 250 (2d Dept, 2002); Drago v. Chung Ho King, 283 A.D.2d 603, 604, 725 N.Y.S.2d 859 (2d Dept, 2001); Terranova v. Finklea, supra; Kuri v. Bhattacharya, 44 A.D.3d 718, 842 N.Y.S.2d 734 [2d Dept, 2007]). And, an expert may not make conclusions which are based on facts not in evidence or are directly contradicted by the evidence. (See, Holbrook v. United Hosp. Medical Center, 248 A.D.2d 358, 669 N.Y.S.2d 631 (2d Dept, 1998); see also, Kaplan v. Hamilton Medical Associates, P.C., 262 A.D.2d 609, 610, 692 N.Y.S.2d 674 [2d Dept, 1999]).

If the moving party meets his burden, in opposition, "a plaintiff must submit a physician's affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor's opinion that the defendant's omissions or departures were a competent producing cause of the injury." (Domaradzki v. Glen Cove Ob/Gyn Assocs., 242 A.D.2d 282, 660 N. Y. S.2d 739 (2d Dept, 1997) citing Cerkvenik by Cerkvenik v. County of Westchester, 200 A.D.2d 703,607 N.Y.S.2d 66 (2d Dept, 1994); Caggiano v. Ross, 130 A.D.2d 538, 515 N.Y.S.2d 274 (2d Dept, 1987); Amsler v. Verrilli, 119 A.D.2d 786, 501 N.Y (2d Dept, 1986); see also, Mosezhnik v. Berenstein, 33 A.D.3d 895, 823 N.Y.S.2d 459 [2d Dept, 2006]). "To establish proximate cause, the plaintiff must present `sufficient evidence from which a reasonable person might conclude that it was more probable than not that' the defendant's deviation was a substantial factor in causing the injury." (Alicea v. Liguori, 54 A.D.3d 784, 785, 864 N.Y.S.2d 462 (2d Dept, 2008), quoting Johnson v. Jamaica Hosp. Med Or., 21 A.D.3d 881, 800 N.Y.S.2d 609 (2d Dept, 2005) and citing Holton v. Sprain Brook Manor Nursing Home, 253 A.D.2d 852, 678 N.Y.S.2d 503 (2d Dept, 1998), lv den. 92 N.Y.2d 818 (1999); see also, Zak v. Brookhaven Memorial Hosp. Medical Center, 54 A.D.3d 852,863 N.Y.S.2d 821 (2d Dept, 2008), citing Lyons v. McCauley, 252 A.D.2d 516, 675 N.Y.S.2d 375 (2d Dept, 1998), lv den. 92 N.Y.2d 814 [1998]). `"The plaintiffs evidence may be deemed legally sufficient even if his expert cannot quantify the extent to which the defendant's act or omission decreased the plaintiffs chance of a better outcome or increased [the] injury, as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiffs chance of a better outcome or increased his injury.'" (Alicea v. Liguori, supra, quoting Flaherty v. Fromberg, 46 A.D.3d 743, 849 N.Y.S.2d 278 (2d Dept, 2007) and citing Barbuto v. Winthrop University Hosp., 305 A.D.2d 623, 624, 760 N.Y.S.2d 199 (2d Dept, 2003); Wong v. Tang, 2 A.D.3d 840, 769 N.Y.S.2d 381 (2d Dept, 2003); Jump v. Facelle, 275 A.D.2d 345, 712 N.Y.S.2d 162 (2d Dept, 2000), lv den, 98 N.Y.2d 612 [2002]).

"It is well settled that to maintain an action to recover damages for medical malpractice, the existence of a doctor-patient relationship is necessary." (Von Ohlen v. Piskacek, 277 A.D.2d 375, 717 N.Y.S.2d 221 (2d Dept., 2000), citing Heller v. Peekskill Community Hosp., 198 A.D.2d 265, 603 (2d Dept, 1993); Lee v. City of New York, 162 A.D.2d 34, 560 N.Y.S.2d 700 (2d Dept, 1990), app den. 78 N.Y.2d 863 [1991]). "An implied physician-patient relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional." (Raptis-Smith v. St. Joseph's Medical Center, 302 A.D.2d 246, 755 N.Y.S.2d 384 (1^st Dept, 2003), citing Cogswell v. Chapman, 249 A.D.2d 865, 672 N.Y.S.2d 460 (3d Dept, 1998); see also, Campbell v. Haber, 21A A.D.2d 946,710 N.Y.S.2d 495 [4^th Dept, 2000]). Joint action in the diagnosis or treatment pursued by a doctor is a sufficient predicate for liability. (Mandel v. New York County Public Adm'r., 29 A.D.3d 869, 870-871, 815 N.Y.S.2d 275 [2d Dept,. 2006]). A "physician can be held vicariously liable for another physician's active negligence if the physician held `some control of the actively negligent physician's `course of treatment' of a patient." (Ross v. Mandeville, 45 A.D.3d 755, 846 N.Y.S.2d 276 (2d Dept, 2007), citing Kavanaugh by Gonzales v. Nussbaum, 71 N.Y.2d 535, 523 N.E.2d 284, 528 N.Y.S.2d 8 (1988); Graddy v. New York Med. Coll., 19 A.D.2d 426, 243 N.Y.S.2d 940 (1^st Dept, 1963), motion den. 13 N.Y.2d 1175 (1964), motion den. 13 N.Y.2d 1187 [1964]; see also, Deane v. Islam, 23 Misc.3d 1128(A), 2009 WL 1412631 (Supreme Court Richmond County 2009). Under those circumstances, liability may be apportioned based on each doctor's relative responsibility and fault. (Mandel v. New York County Public Adm'r., supra, citing Walker v. Zdanowitz, 265 A.D.2d 404, 696 N.Y.S.2d 509 (2d Dept, 1999); Harrison v. Dombrowski, 175 A.D.2d 37, 573 N.Y.S.2d 87 (1^st Dept, 1991); Riley v Wieman, 137 A.D.2d 309, 528 N.Y.S.2d 925 [3d Dept, 1988]).

At her examination-before-trial, Ms. Glicksman testified that she was a sales representative for a pharmaceutical company and that she knew Dr. Federbush through work. Although she never saw him as a patient, she listed him as her doctor at the hospital because she...