Kershaw v. Hosp. for Special Surgery

• Citation: 2013 N.Y. Slip Op. 08548,114 A.D.3d 75,978 N.Y.S.2d 13
• Parties: Bruce KERSHAW, Plaintiff–Respondent–Appellant, v. HOSPITAL FOR SPECIAL SURGERY, et al., Defendants–Appellants–Respondents, New York University Medical Center Hospital for Joint Diseases, Defendant–Respondent, Joshua Steinvurzel, Defendant.
• Decision Date: 24 December 2013
• Court: New York Supreme Court Appellate Division

114 A.D.3d 75
978 N.Y.S.2d 13
2013 N.Y. Slip Op. 08548

Bruce KERSHAW, Plaintiff–Respondent–Appellant,
v.
HOSPITAL FOR SPECIAL SURGERY, et al., Defendants–Appellants–Respondents,
New York University Medical Center Hospital for Joint Diseases, Defendant–Respondent,
Joshua Steinvurzel, Defendant.

Supreme Court, Appellate Division, First Department, New York.

Dec. 24, 2013.

[978 N.Y.S.2d 15]

Peltz & Walker, New York (Bhalinder L. Rikhye of counsel), for appellants-respondents.

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), and Shoshana T. Bookson, New York, for respondent-appellant.

McAloon & Friedman, New York (Gina Bernardi Di Folco of counsel), for respondent.

PETER TOM, J.P., ROLANDO T. ACOSTA, DAVID B. SAXE, HELEN E. FREEDMAN, PAUL G. FEINMAN, JJ.

FEINMAN, J.

Although raised in the context of a purported “cross motion,” resolution of this appeal requires us to once again revisit the issue of untimely summary judgment motions. As defendant Hospital for Special Surgery (together with codefendants Frelinghuysen and Girardi, HSS) concedes, its cross motion was untimely, and it did not allege any good cause for its delay. Accordingly, the cross motion was properly denied, regardless of its merits.

In 1994, when plaintiff was 53 years old, he underwent spinal surgery at defendant Hospital for Special Surgery, to address multilevel cervical stenosis with myelopathy and radiculopathy, which, over the course of five years, had led to progressive weakness in his left shoulder and upper extremities. After surgery, he was pain-free but did not recover a full range of motion in his upper left arm.

About eight years later, in March 2002, plaintiff returned to HSS complaining of lower back pain and severe left leg pain; he was treated with a course of steroid injections. In April 2003, plaintiff again returned because he was experiencing increased weakness in his right upper arm. He was found to have “significant” cervical stenosis and compression of his spinal cord, as well as cord signal change especially at C3–4 and C4–5. Plaintiff had “significant C–5 weakness of the right upper extremity.” The clinic notes indicated that plaintiff “need[ed] a decompression at C3–4, C4–5 and C6–7,” that “probably” this would be done in an anterior approach, and that “surgery will be booked in the near future.” At a follow-up visit in June 2003, he was told that he might not fully recover his right arm motor loss; he was “somewhat disappointed” but acknowledged that his 1994 surgery had a similar result as to his left side. The clinic notes also indicate that plaintiff told the examining physician that he had recently secured a job and was not interested “whatsoever” in immediate surgery; plaintiff disputes this and says he was not working at that time.

Plaintiff returned to HSS in June 2004 complaining of increasing right shoulder dysfunction and neck pain, and decreasing balance. He was no longer working and was receiving social security disability benefits. The clinic notes of June 11, 2004 indicate that his “symptoms have progressed with increased right shoulder atrophy”; a new round of studies was scheduled. On October 1, 2004, plaintiff first met with defendants Peter Frelinghuysen, M.D. and Federico Pablo Girardi, M.D., both orthopedic surgeons at HSS. According to the clinic notes, the doctors advised plaintiff that surgery would likely not result in the return of muscle function, but that there was “a slight chance” of improvement.

He met with another HSS doctor on October 22, 2004, who wrote that the plan was to have plaintiff return in November to see Frelinghuysen “for booking of his anterior disc fusion surgery.” At his next visit on November 12, 2004, a different

[978 N.Y.S.2d 16]

doctor indicated in the clinic notes that Frelinghuysen and Girardi had recommended “what sounds like a two-level anterior cervical decompression and fusion,” and that plaintiff would follow up in one week “to discuss surgery” with Frelinghuysen.¹ The notes also indicate that this doctor explained to plaintiff that the reason to do surgery would be to prevent worsening of his symptoms. The doctor also noted that plaintiff's “only option” might be a future shoulder arthrodesis “to allow him to have a more functional lifestyle.” On November 19, 2004, the clinic notes indicate that Frelinghuysen planned to review the patient films with Girardi and “we will plan for an anterior cervical decompression and fusion at a later date.” According to plaintiff, he understood that surgery would be performed in late December, and he began obtaining the necessary medical clearances.

Plaintiff testified that on his third visit with Frelinghuysen in December 2004, the doctor told him that they could not do the surgery, but did not give him “a reason that made any sense.” In Frelinghuysen's words, he and Girardi decided that surgery “would not help.” According to Girardi, after viewing the films, in his opinion the severity of plaintiff's spinal disease and the low prospect of improvement did not warrant the risks of surgery. If the issue had been compression, surgery would have been performed to prevent further progression, but due to the degeneration of the spinal cord, decompressive laminectomies would have done little or nothing to address plaintiff's upper extremity issues.

In February 2005, plaintiff sought treatment at defendant New York University Medical Center Hospital for Joint Diseases (HJD). According to the patient notes, the examining physician found severe upper extremity atrophy. After review of the MRI, he determined that no further surgery for the cervical spine was indicated and that there should be no lumbar spine surgery “at this time.” Physical therapy, pain management and treatment in HJD's neurology, hand and shoulder clinics were recommended. Plaintiff undertook these programs through HJD's clinic, and was treated continuously until September of 2005. An MRI taken of his right shoulder in May 2005 showed “severe atrophy” of certain muscles and “mild atrophy” of other muscles, “likely due to the patient's cervical myelomalacia.” An MRI of his cervical spine taken the same day found “severe central canal and severe neural foraminal stenosis,” resulting in “severe myelomalacia of the spinal cord” from C3 to mid-C5 level.

While continuing at HJD, plaintiff also sought treatment at Mt. Sinai, where he was first seen in the orthopedic clinic on April 21, 2005. The progress notes from June 25, 2005 indicate, in part, that he had “marked stenosis throughout spine,” and “marked atrophy at both shoulder girdles.” In July 2005, he was examined by an orthopedic surgeon who determined that plaintiff needed surgery to prevent his condition from worsening, not in order to regain function. Plaintiff underwent a two-stage cervical spine surgery in December 2005. Post-operatively, in February and April 2006, plaintiff indicated that he felt returning strength in his right arm although not his left, and a general “slow improvement.” The Mt. Sinai orthopedic surgeon observed that he did not “see a substantial neurologic improvement on [his] objective testing, but the patient does feel subjectively like he is improving.”

[978 N.Y.S.2d 17]

Ten months after the surgery at Mt. Sinai, in October 2006, plaintiff returned to HJD's neurology clinic, reporting a lack of improvement in upper extremity strength, and some pain and numbness on the right arm and hand. Electrical studies performed on October 26, 2006 revealed no significant change from those done in 2005 although there was evidence of fibrotic changes; the studies showed the presence of moderate right and mild left carpal tunnel syndrome.

Plaintiff commenced his lawsuit in May 2007, claiming medical malpractice and failure to secure informed consent. The gravamen of his claim is that HSS and HJD failed to timely perform surgery upon him, leaving him with neurological and muscular damage that would not have occurred had the surgery been performed earlier.

HJD timely moved for summary judgment on November 11, 2011. Its motion papers included an affidavit of a medical expert who discussed plaintiff's medical history as seen in the records. In the opinion of HJD's expert, surgery would have been an “unjustifiable and extraordinarily risky and aggressive treatment option,” as no surgery would have been able to reverse plaintiff's “significant” neurological deficits that had existed for many years. The best that surgery could do was stop the myelopathy, but there was risk of permanent paralysis or death, “well beyond the standard for such risks for cervical spine cases.” He further opined that there was no identifiable injury sustained in the four-month period between plaintiff's first visit at HJD and when he first went to Mt. Sinai.

By notice of cross motion dated January 10, 2012, HSS moved for summary judgment and dismissal, relying on HJD's expert's affidavit and that of defendant Girardi. HSS also argued that the claim of lack of informed consent should be dismissed, given that no procedure requiring consent had been performed. HSS admitted that its motion seeking summary judgment and dismissal of the complaint as against it was filed nearly two months after the court-imposed deadline for making dispositive motions,² but argued that it should be considered because it sought relief on the same issues raised in codefendant HJD's timely motion.

Plaintiff opposed defendants' motions for summary judgment, although he did not address the claim of lack of informed consent. He submitted the affidavit of his medical expert, Michael J. Murphy, M.D., an orthopedic surgeon practicing in Connecticut. According to the affidavit, Murphy reviewed the medical records and opined that surgery for plaintiff was “indicated as early as June 2003 when the diagnosis of cervical spondylitic myelopathy was made,” and from that time until December 2005 when surgery was performed, plaintiff's neurological...