Miele v. Macualay

• Decision Date: 27 January 2023
• Docket Number: Index No. 805260/2017,Motion Seq. No. 005
• Citation: 2023 NY Slip Op 30353 (U)
• Parties: RONALD MIELE, Plaintiff, v. WILLIAM MACUALAY, M.D., DEBRA SPICEHANDLER, M.D., LAWRENCE HOSPITAL, and NEW YORK PRESBYTERIAN HOSPITAL, Defendants.
• Court: New York Supreme Court

2023 NY Slip Op 30353(U)

RONALD MIELE, Plaintiff,
v.
WILLIAM MACUALAY, M.D., DEBRA SPICEHANDLER, M.D., LAWRENCE HOSPITAL, and NEW YORK PRESBYTERIAN HOSPITAL, Defendants.

Index No. 805260/2017, Motion Seq. No. 005

Supreme Court, New York County

January 27, 2023

Unpublished Opinion

MOTION DATE 11/16/2022

DECISION+ ORDER ON MOTION

HON. JOHN J. KELLEY, Justice

The following e-filed documents, listed by NYSCEF document number (Motion 005) 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167 were read on this motion to/for JUDGMENT - SUMMARY .

I. INTRODUCTION

In this action to recover damages for medical malpractice based on alleged departures from good and accepted practice and lack of informed consent, the defendants William Macualay, M.D., Lawrence Hospital, and New York Presbyterian Hospital (collectively the NYPH defendants) together move pursuant to CPLR 3212 for summary judgment dismissing the complaint insofar as asserted against them. The defendant Debra Spicehandler, M.D., separately moves, in papers incorrectly denominated as a cross motion, for summary judgment dismissing the complaint insofar as asserted against her. The plaintiff opposes both motions.

In the first instance, Spicehandler's motion was not a proper cross motion because it did not seek relief against a moving party; instead, her motion was, in effect, a separate motion (see CPLR 2215; Asiedu v. Lieberman, 142 A.D.3d 858, 858 [1st Dept 2016]; Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 88 [1st Dept 2013]; Guzetti v. City of New York, 32 A.D.3d 234 [1st Dept 2006]; Gaines v. Shell-Mar Foods, Inc., 21 A.D.3d 986 [2d Dept 2005]; Sheehan v. Marshall,

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9 A.D.3d 403, 404 [2d Dept 2004]; Lucheux v. William Macklowe Co., LLC, 2017 NY Slip Op 31044[U], 2017 NY Misc. LEXIS 187 [Sup Ct, N.Y. County, May 11, 2017]). CPLR 2214(b) requires such a separate motion to be made on at least eight days' notice. The mislabeling of a motion as a cross motion, however, may treated as a "technical" defect to be disregarded, particularly where the nonmoving party does not object and the consideration of the application results in no prejudice to the nonmoving party (see Sheehan v. Marshall, 9 A.D.3d at 404), and where, as here, the moving party made her application far more than eight days prior to the return date, thus giving the plaintiff ample opportunity to be heard on the merits (see Daramboukas v. Samlidis, 84 A.D.3d 719, 721 [2d Dept 2011]; Matter of Jordan v. City of New York, 38 A.D.3d 336, 338 [1st Dept 2007]; Della-Mura v. White Plains Hosp. Med. Ctr., 2022 NY Slip Op 31085[U], *3, 2022 NY Misc. LEXIS 1697, *3-4 [Sup Ct, N.Y. County, Mar. 31, 2022] [Kelley, J.]). Hence, Spicehandler's "cross motion" may be considered as a properly noticed separate motion (see Matter of Jordan v. City of New York, 38 A.D.3d at 338).

The motions are granted only to the extent that summary judgment is awarded to all of the defendants dismissing the lack of informed consent cause of action. The motions are otherwise denied.

II. BACKGROUND

The crux of the plaintiff's claim is that William Macaulay, M.D., incorrectly sued herein as William Macualay, M.D., performed a medial unicompartmental arthroplasty, also known as MUKA surgery, on his left knee on May 25, 2016 at NYPH, and that Macaulay's malpractice in the course of post-operative care caused the plaintiff to become infected with methicillin-resistant staphylococcus aureus (MRSA) in his left tibia that, in turn, resulted in osteomyelitis. The plaintiff further alleged that the additional post-operative care rendered by infectious disease specialist Spicehandler at Lawrence Hospital was deficient, that the infection was not arrested and cured as a consequence, and that her failure properly to treat the infection at that juncture caused or contributed to the plaintiff's osteomyelitis and resultant bone necrosis.

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The plaintiff began treating with orthopedic surgeon Macaulay on December 19, 2014, complaining of a five-year history of pain in the medial region of his left knee that had been worsening over time. Conservative management, including activity modification, weight loss, the administration of non-steroidal anti-inflammatory drugs, and cortisone injections, had not successfully resolved the plaintiff's pain. X-rays taken in 2014 revealed advanced degenerative changes in the medial compartment of the plaintiff's left knee. Macaulay believed that the plaintiff was an excellent candidate for left medial unicompartmental knee arthroplasty. According to Macaulay, he informed the plaintiff that significant complications arose from that procedure in 1%-2% of patients, including death, heart attack, venous thromboembolism, dislocation/instability, peri-prosthetic fracture, component loosening, component malposition, leg length discrepancy, nerve/artery damage, reactive bone formation/stiffness, and infection. While the plaintiff does not concede that Macaulay imparted that information to him, he does concede that a note in Macaulay's records indicated that he and Macaulay had a discussion about the potential risks of that surgery.

Macaulay arranged for the plaintiff to return in May 2015 for the procedure, but surgery was delayed for more than a year because the plaintiff sustained a bilateral quadriceps tendon injury that required surgical repair. At the May 2015 appointment, the plaintiff thus was administered several injections to his right knee to address ongoing pain, and Macaulay again recommended that the plaintiff undergo the arthroscopic procedure on his left knee.

Macaulay obtained a signed, written consent form from the plaintiff, in which the plaintiff indicated that Macaulay explained the risks and benefits of the arthroscopic procedure to him. Macaulay performed a left medial unicompartmental knee arthroplasty on May 25, 2016 at NYPH, employing a Mako® robotic-arm and Mako® implant system components to assist in undertaking the procedure, which involved the implantation of array pins in the tibia and femur, as determined by the Mako-plasty system. During the procedure, Macaulay used antibiotic-infused cement for the placement of the components. As he described it, he removed the array

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pins during the procedure and cleaned the pin sites with pulsatile lavage, then placed staples at the pin sites, and covered them with dressings. Macaulay administered the antibiotic Ancef to the plaintiff perioperatively, and continued him on it for a period of 24 hours

According to Macaulay, immediately after the surgery, the plaintiff was afebrile with a stable white blood cell count. The plaintiff was discharged from NYPH on May 27, 2016. Macaulay asserted that there was no indication of infection during the plaintiff's hospitalization, that the procedure was successful, and that the postoperative plan was for the plaintiff to follow up with Macaulay in four weeks, but that he advised the plaintiff to contact him sooner if he was experiencing certain symptoms, including redness, increased drainage, swelling, or worsening pain.

Macaulay ordered Visiting Nurse Services (VNS) to attend to the plaintiff at his home for a period of eight weeks, at a frequency of one to two days per week, beginning on May 28, 2016, the day after the plaintiff's discharge from NYPH. The plan was for the dressing to be removed on the seventh day after the surgery and for the staples to be removed on the fourteenth day after the surgery. Macaulay directed the plaintiff to contact him if the plaintiff experienced a fever, redness, drainage from the incision, worsening pain, or numbness, tingling or weakness.

On June 3, 2016, a VNS nurse removed the original surgical dressing that had been placed by Macaulay on May 26, 2016, revealing edema in the plaintiff's left leg. The nurse sent Macaulay a photograph of the incision line and, according to Macaulay, there were no signs or symptoms of infection, while the plaintiff's left lower shin evinced a small amount of clear drainage with no redness. The VNS nurse thus applied hydrogel and a new dressing, and advised the plaintiff to monitor himself for signs and symptoms of infection. On June 4, 2016, the plaintiff called VNS because his left shin wound was draining outside of the dressing, reporting that the area of the wound was red and painful, with yellow drainage, upon which a VNS nurse advised him to change the dressing. A VNS nurse visited the plaintiff later that day,

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confirmed the findings, and reported them to Macaulay, indicating that the wound appeared to be infected. The VNS nurse requested that Macaulay order an antibiotic to treat the infection. Macaulay agreed, and instructed the nurse to remove the staple at the site of the wound. On June 5, 2016, a nurse practitioner in Macaulay's office, Emily Doctor, who had undergone training in orthopedics during her residency, called a pharmacy to order the antibiotic empiric Augmentin (amoxicillin clavulanate) to administer to the plaintiff.

A VNS nurse returned to the plaintiff's home on June 6, 2016. The nurse noted that the plaintiff's leg wound was red and swollen, with yellow drainage, and the nurse thereafter cleaned the wound and applied a dressing. The nurse spoke that day with a representative from Macaulay's office, while the plaintiff sent a photograph of the wound to Macaulay, who advised the plaintiff to come to his office on June 7, 2016.

The plaintiff presented to Macaulay's office on June 7, 2016 with a quarter-inch open wound at a pin insertion site on his distal left tibia, with purulent, that is, pus-infused, drainage. Although the area was a reddish color, Macaulay concluded...