Mirshah v. Obedian

• Decision Date: 15 December 2021
• Docket Number: 2018–03662, 2018–03663,Index No. 603647/13
• Citation: 200 A.D.3d 868,158 N.Y.S.3d 226
• Parties: Mohammad MIRSHAH, et al., appellants, v. Richard S. OBEDIAN, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 868
158 N.Y.S.3d 226

Mohammad MIRSHAH, et al., appellants,
v.
Richard S. OBEDIAN, etc., et al., respondents.

2018–03662, 2018–03663
Index No. 603647/13

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

Argued—October 7, 2021
December 15, 2021

158 N.Y.S.3d 228

Pollack Pollack Isaac & DeCicco, LLP, New York, NY (Brian J. Isaac and Christopher J. Soverow of counsel), for appellants.

Connick, Myers, McNamee & Fitzgerald, PLLC, Mineola, NY (Barbara A. Myers of counsel), for respondents Richard S. Obedian, Richard S. Obedian, MD, PLLC, and Island Spine and Sports Medicine, P.C.

Bower Law, P.C., Uniondale, NY (Anina H. Monte and Gianna Crespo of counsel), for respondent Winthrop University Hospital.

REINALDO E. RIVERA, J.P., ANGELA G. IANNACCI, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Anna Anzalone, J.), dated January 25, 2018, and (2) a judgment of the same court dated February 9, 2018. The order, insofar as appealed from, granted the motion of the defendant Winthrop University Hospital, and the separate motion of the defendants

158 N.Y.S.3d 229

Richard S. Obedian, Richard S. Obedian, MD, PLLC, and Island Spine and Sports Medicine, P.C., for summary judgment dismissing the complaint insofar as asserted against each of them. The judgment, upon the order, is in favor of each of the defendants and against the plaintiffs dismissing the complaint.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is modified, on the law, by deleting the provisions thereof which are in favor of the defendants Richard S. Obedian, Richard S. Obedian, MD, PLLC, and Island Spine and Sports Medicine, P.C., and against the plaintiff dismissing the complaint insofar as asserted against those defendants; as so modified, the judgment is affirmed, those defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them is denied, the order dated January 25, 2018, is modified accordingly, and the complaint is reinstated insofar as asserted against those defendants; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs, payable by the defendants Richard S. Obedian, Richard S. Obedian, MD, PLLC, and Island Spine and Sports Medicine, P.C., and one bill of costs is awarded to the defendant Winthrop University Hospital, payable by the plaintiffs.

The appeal from so much of the order as granted the separate motions of the defendant Winthrop University Hospital, and the defendants Richard S. Obedian, Richard S. Obedian, MD, PLLC, and Island Spine and Sports Medicine, P.C., for summary judgment dismissing the complaint insofar as asserted against each of them must be dismissed, because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from that portion of the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

The plaintiff Mohammad Mirshah (hereinafter Mirshah) was a patient of the defendants Richard S. Obedian, Richard S. Obedian, MD, PLLC, and Island Spine and Sports Medicine, P.C. (hereinafter collectively the practitioner defendants). Mirshah complained of, inter alia, lower back pain stemming from a car accident in 2010. Obedian initially pursued a conservative course of treatment, but ultimately recommended that Mirshah undergo a laminectomy with possible fusion surgery at the L3–L4 and L4–L5 levels of his spine. Mirshah accepted Obedian's recommendation and surgery was scheduled.

On the morning of the surgery, Mirshah presented at the defendant Winthrop University Hospital (hereinafter the Hospital) for the surgery as planned. When Obedian arrived, he informed Mirshah that he had changed his mind about performing the planned laminectomy and instead recommended implantation of "X–STOP" devices in his back. After a brief discussion about the relative benefits of the procedure to implant the X–STOP devices over the planned procedure, Mirshah agreed to undergo the procedure to implant the X–STOP devices. Obedian performed the procedure without incident.

The procedure to implant the X–STOP devices did not achieve the intended result, and after several months of increasing pain and new symptoms, Obedian recommended that Mirshah undergo the originally-planned laminectomy with possible fusion surgery. Mirshah obtained a second opinion from another doctor, John Bendo, who opined that Mirshah's condition did not warrant the surgical intervention

158 N.Y.S.3d 230

he had received. On Bendo's recommendation, Mirshah underwent surgery to remove the X–STOP devices and thereafter pursued a conservative course of treatment.

Mirshah, and his wife suing derivatively, thereafter commenced this action against the practitioner defendants and the Hospital. The plaintiffs asserted, inter alia, that the practitioner defendants negligently recommended, negligently carried out, and negligently provided post-operative care for the procedure to implant the X–STOP devices, which, they alleged, was "contraindicated by the manufacturer and medical literature" (first through third causes of action). They also alleged that the practitioner defendants failed to obtain Mirshah's informed consent before performing the procedure to implant the X–STOP devices (fifth through seventh causes of action). The plaintiffs also sought to hold the Hospital vicariously liable for the practitioner defendants’ alleged malpractice (fourth and eighth causes of action). Mirshah's wife asserted derivative causes of action against both the practitioner defendants (ninth through eleventh causes of action) and the Hospital (twelfth cause of action).

The practitioner defendants and the Hospital separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. On January 25, 2018, the Supreme Court issued an order, inter alia, granting both motions, and, on February 9, 2018, entered a judgment in favor of each of the defendants and against the plaintiffs dismissing the complaint. The plaintiffs appeal.

"In a medical malpractice action, a defendant moving for summary...