Henry v. Purohit

• Decision Date: 11 February 2021
• Docket Number: INDEX NO. 805321/2015
• Citation: 2021 NY Slip Op 30426 (U)
• Parties: ROBERT HENRY, SARAH HENRY, Plaintiff, v. RAJVEER PUROHIT, RAJVEER PUROHIT MD P.C.,JERRY BLAIVAS, JERRY G. BLAIVAS, M.D., P.C.,NEW YORK CITY UROLOGY, PLLC,THE URO CENTER OF NEW YORK, DUANE READE INC.,JOHN AND/OR JANE DOES NOS. 1-20 Defendant.
• Court: New York Supreme Court

2021 NY Slip Op 30426(U)

ROBERT HENRY, SARAH HENRY, Plaintiff, v. RAJVEER PUROHIT, RAJVEER PUROHIT MD P.C.,JERRY BLAIVAS, JERRY G. BLAIVAS, M.D., P.C.,NEW YORKCITY UROLOGY, PLLC,THE URO CENTER OF NEW YORK,DUANE READE INC.,JOHN AND/OR JANE DOES NOS. 1-20 Defendant.

INDEX NO. 805321/2015

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART IAS MOTION 30

February 11, 2021

NYSCEF DOC. NO. 195

PRESENT: HON. JUDITH REEVES MCMAHON Justice

MOTION DATE 02/10/2021, 02/10/2021

MOTION SEQ. NO. 002 003

DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 002) 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 188, 189, 190, 191 were read on this motion to/for PARTIAL SUMMARY JUDGMENT.

Upon the foregoing documents,

Defendant Duane Reade Inc.'s motion (sequence #002) for an Order, pursuant to CPLR §3212, seeking summary judgment and dismissal of Plaintiffs' complaint against Duane Reade is denied.

Plaintiffs' motion (sequence #003) for an Order, pursuant to CPLR § 3212, granting Plaintiffs Robert L. Henry and Sarah C. Henry summary judgment on the issue of liability against Defendants Rajveer Singh Purohit, M.D., Rajveer Singh Purohit, M.D. P.C., New York City Urology, PLLC (collectively the "UROLOGISTS") and Duane Reade is granted in part and denied in part as detailed herein.

This is an action for medical malpractice wherein Plaintiffs allege multiple departures from the standards of good and accepted medical practice, including: (1) the failure of Defendant Purohit, individually, and acting through Defendant P.C., to properly treat Plaintiff Robert Henry between January 24, 2013 and October 10, 2013; and (2) the failure of Defendant NYC Urology's employees to exercise due care in the course of their employment on January 24, 2013 and March 17, 2013 in issuing erroneous prescriptions to Plaintiff Robert Henry.

This action further alleges negligence on the part of Defendant Duane Reade in dispensing medication in connection with the erroneous prescriptions between January 24, 2013 and March 17, 2013.

As a result of Defendants' negligence, Plaintiff Robert Henry was mis-prescribed and dispensed an excessive daily dosage of 200mg of Clomid for over four-months. Plaintiffs allege this excessive dosage caused or provoked a deadly condition of deep vein thrombosis (DVT) or blood clotting in his left lower leg.

Defendant Duane Reade now moves for summary judgment to dismiss Plaintiffs' allegations and Plaintiffs now move for summary judgment on the issue of liability against all Defendants.

"To sustain a cause of action for medical malpractice, a plaintiff must prove two essential elements: (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of plaintiff's injury." Frye v. Montefiore Med. Ctr., 70 A.D.3d 15, 888 N.Y.S.2d 479 (N.Y.A.D. 1^st Dept. 2009).

"Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions." Rosario v. Our Lady of Consolation Nursing & Rehab. Care Ctr., 186 A.D.3d 1426, 128 N.Y.S.3d 906 (N.Y.A.D. 2^nd Dept. 2020).

Plaintiffs sought to establish a prima facie entitlement to judgment via the Affirmations of Dr. Biree Andemariam and Pharmacist Jonathan Shaatal. See Bartolacci-Meir v. Sassoon, 149 A.D.3d 567, 50 N.Y.S.3d 395 (N.Y.A.D. 1^st Dept. 2017); See also Stukas v. Streiter, 83 A.D.3d 18, (N.Y.A.D. 2^nd Dept. 2011); See also Joyner-Pack v. Sykes, 54 A.D.3d 727, (N.Y.A.D. 2^nd Dept. 2008).

In support of Plaintiffs' motion, Dr. Andemariam stated, "The records and testimony reveal that the defendant Rajveer Singh Purohit, M.D. intended to prescribe 50mg of Clomid daily to the patient Robert Henry. The records and testimony also confirm that rather than prescribing Clomid 50mg once per day, the actual prescription and refills provided for the patient were for 50mg of Clomid, 4 times per day, 30 tablets. While the testimony suggests that the error in preparing the prescription was caused by an unknown medical assistant, it is also undisputed that the unknown medical assistant signed the prescription on behalf of the defendant Purohit and that defendant Purohit did not review the prescription prior to providing it for the patient."

Dr. Andemariam opined "that prescribing 50mg of Clomid 4 times a day to the patient Robert Henry was a departure from good and accepted medical care. The failure of defendant Purohit to review the prescription prior to giving it to the patient was a departure from good and accepted medical care. Allowing a medical assistant to sign the prescription was a departure from good and accepted medical care."

Dr. Andemariam further opined that, "It is also my opinion that these numerous departures from good and accepted medical care were a substantial factor in causing harm to the patient. The high dose of Clomid given to the patient caused the patient to suffer left lower extremity deep vein thrombosis or DVT for which he was treated at Weill Cornell Medical Center and which required anitcoagulant treatment at its Coumadin Clinic. The onset of the DVT required extensive treatment and caused the patient to endure significant long-term effects. In addition, once the patient suffered the DVT, he was placed on the antigoagulant Warfarin, but developed side effects. The patient will be required to take anticoagulant medication for the rest of his life. In addition, the patient will be at increased risk of DVT."

In support of Plaintiffs' motion, Pharmacist Shaatal stated, "It is my expert opinion, with a reasonable degree of certainty, that the defendant Duane Reade Inc. by and through its pharmacist Helen Andros was negligent and departed from good and accepted pharmacy practice in the dispensing of the medication Clomiphene Citrate to the plaintiff. The defendant Duane Reade Inc. by and through its pharmacist Helen Andros exercised independent judgment in changing the number of tablets dispensed and also in accumulating the extra tablets and dispensing them as an additional partial refill of the prescription to plaintiff Robert L. Henry. In addition, the prescription as written, which was admittedly erroneous, was so contraindicated onits face that ordinary prudence required additional measures before dispensing the medication, including contacting the prescribing physician for clarification."

Pharmacist Shaatal further opined that "The standard of care in New York State requires counseling with the patient for new prescriptions. Counseling of the patient should have included advising the patient of the high dosage and the extra tablets."

Defendants the UROLOGISTS, submitted an Affirmation from a doctor board certified in Urology in Opposition to Plaintiffs' motion. The UROLOGISTS' Opposition to Plaintiffs' motion focused solely on the issue of proximate cause. The UROLOGISTS' Opposition argued that Plaintiffs' Experts' opinions regarding causation are conclusory and fail to offer a basis for concluding that the prescribed overdose of Clomid was a substantial factor in causing Plaintiff's injuries.

The UROLOGISTS' Expert opined that "It is my opinion with reasonable medical certainty that plaintiff's experts failed to consider the plaintiff's medical condition as a whole in giving their opinions. As such, I disagree with plaintiff's experts that the prescription of Clomid, without considering other risk factors present in the plaintiff, was the proximate cause of plaintiff's alleged injuries."

The UROLOGISTS' Expert stated that, "The records reviewed indicate the presence of several risk factors for DVT in the plaintiff specifically, age, polycythemia, prolonged periods of immobility, and dehydration. It is my opinion with a reasonable degree of medical certainty, that these risk factors combined to cause or provoke plaintiff's DVT. I disagree with plaintiff's expert, Dr. Andemariam, who offers the opinion that the prescription of Clomid caused the patient to sustain deep vein thrombosis, without considering and addressing other risk factors for DVT that existed in plaintiff independent of the prescription of Clomid, and whether these risk factors were the proximate cause of plaintiff's DVT."

The UROLOGISTS' Expert concluded that, "given that Mr. Henry had multiple risk factors, it is my opinion with a reasonable degree of medical certainty that it cannot be said that Clomid singularly was the proximate cause of the plaintiffs DVT. It is further my opinion with a reasonable degree of medical certainty, that the records and testimony indicate the presence ofseveral risk factors for DVT in plaintiff, unrelated to the use of Clomid, which combined to cause plaintiffs DVT and related injuries as alleged herein."

Defendant Duane Reade, in support of their own motion and in opposition to Plaintiffs' motion, submitted an Affirmation from a Pharmacist, Donna M. Horn, as well as re-submitted a copy of the UROLOGISTS' Expert's Affirmation.

In support of Duane Reade's own motion and in Opposition to Plaintiffs' motion, Pharmacist Horn stated that, "In the incident matter, it is not in dispute, nor does Mr. Shaatal dispute that Ms. Andros dispensed the correct medication, with the correct warning sheets, in the exact strength and form prescribed by Dr. Purohit. This is the exact standard of care that is at issue, whether or not the prescription was...