Jacobs v. Carter
| Docket Number | Index No. 619548/2016,CAL. No. 201902363M,Mot. Seq. Nos. 1 MG,2 MotD,3 MG |
| Decision Date | 01 September 2020 |
| Parties | ALBERTA JACOBS and ALBERTA JACOBS AS EXECUTRIX OF THE ESTATE OF WILLIAM JACOBS, DECEASED, Plaintiff, v. FRED M. CARTER, II, M.D., NORTH FORK ORTHOPEDICS AND SPORTS MEDICINE, and EASTERN LONG ISLAND HOSPITAL, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
MOTION DATES 2/27/20 (001), 5/22/20 (002 & 003)
ADJ. DATE 6/26/20
SULLIVAN PAPAIN BLOCK MCGRATH
Attorney for Plaintiff
VASLAS LEPOWSKY HAUSS, LLP
Attorney for Defendant Carter and North Fork
Orthopedics and Sports Medicine
FUMUSO KELLY SWART FARRELL, LLP
Attorney for Defendant Eastern Long Island Hospital
Upon the following papers read on these e-filed motions for a trial preference and for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by plaintiff, filed February 4, 2020: by defendants Carter and North Fork, filed May 6, 2020; by defendant Easter Long Island Hospital, filed May 12, 2020: Notice of Motion/Order to Show Cause and supporting papers___ Answering Affidavits and supporting papers by defendants Carter and North Fork, filed February 6. 2020; by defendant Eastern Long Island Hospital, filed February 14. 2020: by plaintiff, filed June 19, 2020: Replying Affidavits and supporting papers by plaintiff, filed February 18, 2020; by Eastern Long Island Hospital, filed June 25, 2020; Other___; it is
ORDERED that the motion by plaintiff, the motion by defendants Fred Carter, II, M.D., and North Fork Orthopedics and Sports Medicine, and the motion by defendant Eastern Long Island Hospital are consolidated for purposes of this determination; and it is further ORDERED that the motion by plaintiff for a trial preference is granted; and it is further
ORDERED that the motion by defendants Fred Carter, II, M.D., and North Fork Orthopedics and Sports Medicine for summary judgment dismissing the complaint against it is granted to the extent of dismissing the cause of action for lack of informed consent, and is otherwise denied; and it is further
ORDERED that the motion by defendant Eastern Long Island Hospital for summary judgment dismissing the complaint against it is granted.
This is a medical malpractice action brought to recover damages for injuries allegedly arising from the treatment of plaintiff Alberta Jacobs by defendants. The medical malpractice claims arise from Dr. Carter and North Fork Orthopedics and Sports Medicine's ("North Fork") treatment of plaintiff from June 8 to November 24, 2015, while she was a patient at Eastern Long Island Hospital ("ELIH") from September 24 to September 28, 2015. Plaintiff alleges that defendants were negligent in, among other things, improperly performing total hip arthroplasty, failing to properly position, align, and size the femoral head and acetebular components, failing to properly interpret x-rays, and failing to diagnose and treat hip dislocation. She also alleges a cause of action for lack of informed consent and negligent hiring. Plaintiff, suing on behalf of William Jacobs, her husband, also sues derivatively for loss of services.
Plaintiff moves for a trial preference on the ground that she is entitled to a special preference, because she is presently over 70 years old. Plaintiff submits, in support of the motion, a copy of her' driver's license and the note of issue. In opposition, defendants argue that plaintiff may not stack trial preferences.
Pursuant to CPLR 3403 (a) (4), a party who has reached 70 years of age is automatically entitled to a preference (see also Andersen v Park Ctr. Assoc, 250 A.D.2d 473, 673 N.Y.S.2d 396 [1st Dept 1998]-Borenstein v City of New York, 248 A.D.2d 425, 668 N.Y.S.2d 949 [2d Dept 1998]; Milton Point Realty Co., Inc. v Haas, 91 A.D.2d 678, 457 N.Y.S.2d 333 [2d Dept 1982]). Plaintiffs driver's license establishes that she was born in 1935 and has attained an age of more than 70 years.
Plaintiff is also entitled to a trial preference on the basis that the action is a medical malpractice action (CPLR 3403 [a] [5]). As the "stacking" of trial preferences is disfavored (Green v Vogel, 144 A.D.2d 66, 537 N.Y.S.2d 180 [2d Dept 1989]), a party is not automatically entitled to a second trial preference (Stralberg v Mauer, 166 A.D.2d 522, 560 N.Y.S.2d 804 [2d Dept 1990]). In this case, plaintiff has not been granted a trial preference based on the medical malpractice claims asserted, as she did not move for such a trial preference (CPLR 3403 [b]). Accordingly, plaintiffs motion is granted.
Dr. Carter and North Fork move for summary judgment dismissing the complaint against them on the grounds that they did not depart from good and accepted practices in the treatment rendered to plaintiff, and that such treatment did not cause her alleged injuries. Dr. Carter and North Fork submit, in support of the motion, copies of the pleadings and the bill of particulars. In opposition, plaintiff argues that triable issues of fact exist as to whether Dr. Carter departed from good and accepted practices in the treatment rendered to plaintiff and whether such treatment caused her injuries. Plaintiff submits, in opposition, a redacted expert affirmation, and the medical records of Peter Sultan, M.D., and San Simeon by the Sound Center for Nursing and Rehabilitation.
ELIH moves for summary judgment dismissing the complaint against it on the grounds that it did not departure or deviate from the accepted standards of medical care, that it is not vicariously liable for the actions of plaintiff s private physician, and that it was not obligated to obtain her informed consent. EILH submits, among other things, copies of the pleadings, the bill of particulars, the transcripts of the deposition testimony of plaintiff and Dr. Carter, uncertified medical records of North Fork and ELIH, the affidavit of Delia Pispisa, and the affirmation of Jeffrey Richmond, M.D. Plaintiff does not oppose ELIH's motion.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]).
Healthcare providers owe a duty of reasonable care to their patients while rendering medical treatment; a breach of this duty constitutes medical malpractice (Dupree v Giugliano, 20 N.Y.3d 921, 958 N.Y.S.2d 312, 314 [2012]; Scott v Uljanov, 74 N.Y.2d 673, 675, 543 N.Y.S.2d 369 [1989]; Tracy v Vassar Bros. Hosp., 130 A.D.3d 713,13 N.Y.S.3d 226, 288 [2d Dept 2015]). To recover damages for medical malpractice, a plaintiff patient must prove both that his or her healthcare provider deviated or departed from good and accepted standards of medical practice and that such departure proximately caused his or her injuries (Gross v Friedman, 73 N.Y.2d 721, 535 N.Y.S.2d 586 [1988]; Macancela v Wyckoff Heights Med. Ctr., 176 A.D.3d 795, 109 N.Y.S.3d 411 [2d Dept 2019]; Jagenburg v Chen-Stiebel, 165 A.D.3d 1239, 85 N.Y.S.3d 558 [2d Dept 2018]; Bongiovanni v Cavagnuolo, 138 A.D.3d 12, 24 N.Y.S.3d 689 [2d Dept 2016]; Stukas v Streiter, 83 A.D.3d 18, 918 N.Y.S.2d 176 [2d Dept 2011]). To establish a prima facie entitlement to summary judgment in a medical malpractice action, a defendant healthcare provider must prove, through medical records and competent expert affidavits, the absence of any such departure, or, if there was a departure, that such departure did not proximately cause the plaintiffs injuries (Macancela v Wyckoff Heights Med. Ctr., supra; Wright v Morning Star Ambulette Servs., Inc., 170 A.D.3d 1249, 96 N.Y.S.3d 678 [2d Dept 2019]; Wodzenski v Eastern Long Is. Hosp., 170 A.D.3d 925, 96 N.Y.S.3d 80 [2d Dept 2019]; Jagenburg v Chen-Stiebel, supra; Mitchell v Grace Plaza of Great Neck, Inc., 115 A.D.3d 819, 982 N.Y.S.2d 361 [2d Dept 2014]). The defendant must address and rebut specific allegations of malpractice set forth in the plaintiffs bill of particulars (Wall v Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 912 N.Y.S.2d 77 [2d Dept 2010]; LaVecchia v Bilello, 76 A.D.3d 548, 906 N.Y.S.2d 326 [2d Dept 2010]; Grant v Hudson Val. Hosp. Ctr., 55 A.D.3d 874, 866 N.Y.S.2d 726 [2d Dept 2008]). However, "bare conclusory assertions by defendants that they did not deviate from good and accepted medical practices ... do not establish that the cause of action has no merit so as to entitle defendants to summary judgment" (DiLorenzo v Zaso, 148 A.D.3d 1111, 1112, 50 N.Y.S.3d 503 [2d Dept 2017], quoting Winegrad v New York Univ. Med. Ctr., supra at 853; see Garcia-DeSoto v Velpula, 164 A.D.3d 474, 77 N.Y.S.3d 887 [2d Dept 2018]).
Generally a hospital may not be held vicariously liable for the acts of a physician who is not an employee of the hospital, but is one of a group of independent contractors (see Hill v St. Clare's Hosp., 67 N.Y.2d 72, 79, 499 N.Y.S.2d 904, 909 [1986]; Castro v Durban, 161 A.D.3d 939, 941-942, 77 N.Y.S.3d 680 [2d Dept 2018]; Keesler v Small, 140 A.D.3d 1021, 35 N.Y.S.3d 356 [2d Dept 2016]). To establish its entitlement to judgment as a...
To continue reading
Request your trial