Kim v. Lewin
| Decision Date | 11 September 2019 |
| Docket Number | 2017–08868,Index No. 9119/13 |
| Parties | MI JUNG KIM, Appellant, v. Jonathan LEWIN, etc., Respondent. |
| Court | New York Supreme Court — Appellate Division |
175 A.D.3d 1286
108 N.Y.S.3d 25
MI JUNG KIM, Appellant,
v.
Jonathan LEWIN, etc., Respondent.
2017–08868
Index No. 9119/13
Supreme Court, Appellate Division, Second Department, New York.
Argued—November 1, 2018
September 11, 2019
Tumelty & Spier, LLP, New York, N.Y. (John Tumelty and Judah Z. Cohen of counsel), for appellant.
Perry, Van Etten, Rozanski, & Primavera, LLP, Melville, N.Y. (Elizabeth Gelfand Kastner and Geoffrey H. Pforr of counsel, New York), for respondent.
LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, with costs.
In February 2010, the plaintiff injured her back in a workplace accident. After unsatisfactory results from epidural steroid injections, the plaintiff's pain management specialist referred her to the defendant for a surgical consultation, which occurred on June 7, 2010. An MRI the defendant had taken of the plaintiff's lumbar spine revealed compression at the L4–5 and L5–S1 levels. The defendant recommended surgery. On July 7, 2010, the defendant performed a two-level spinal discectomy and decompression surgery on the plaintiff. He visited her in the hospital the day after the surgery was performed and noted that she was doing well but continued to have diminished strength in her right leg. Subsequently, the plaintiff was discharged to a residential rehabilitation facility. While in the rehabilitation facility, although she showed some improvement, the plaintiff continued to experience pain and difficulty walking. A post-operative MRI of the plaintiff's lumbar spine was performed on August 11, 2010, which demonstrated that there remained some impingement on the nerve.
The defendant examined the plaintiff on August 15, 2010, while she was at the rehabilitation facility. After being released from the rehabilitation facility on August 31, 2010, the plaintiff had three more post-surgical appointments with the defendant, with the last appointment occurring on November 15, 2010.
The parties dispute when the defendant first discussed the possibility that the plaintiff may need to undergo an additional spinal surgery due to her continued pain and difficulty walking subsequent to the first surgery. However, it is undisputed that, at least by September 13, 2010, the
defendant had told the plaintiff that she would need an additional surgery if she did not continue to improve. He also advised her of this during the October 2010 and November 2010 visits. At the November 15, 2010, appointment, the defendant asked the plaintiff to return to his office in six weeks with the advisement that surgery may be required if she did not improve by the next visit, but she never returned. In December 2010, the plaintiff returned to her pain management specialist and then sought treatment from another spinal surgeon, who recommended...
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