Montagnino v. Inamed Corp., INDEX NO. 13532/07

CourtUnited States State Supreme Court (New York)
Writing for the CourtAnthony L. Parga
Citation2012 NY Slip Op 31352
Decision Date11 May 2012
Docket NumberSEQUENCE NO. 007,INDEX NO. 13532/07,SEQUENCE NO. 006
PartiesDIANE MONTAGNINO and MICHAEL MONTAGNINO, Plaintiffs, v. INAMED CORPORATION, INAMED HEALTH, INAMED AESTHETICS, ALLERGAN, INC., ALAN R. SHONS, M.D., NORTH SHORE-LONG ISLAND JEWISH HEALTH SYSTEM, INC., GLEN COVE HOSPITAL, and NORTH SHORE UNIVERSITY HOSPITAL AT GLEN COVE, Defendants.

2012 NY Slip Op 31352

DIANE MONTAGNINO and MICHAEL MONTAGNINO, Plaintiffs,
v.
INAMED CORPORATION, INAMED HEALTH, INAMED AESTHETICS, ALLERGAN, INC., ALAN R. SHONS, M.D., NORTH SHORE-LONG ISLAND JEWISH HEALTH SYSTEM, INC.,
GLEN COVE HOSPITAL, and NORTH SHORE UNIVERSITY HOSPITAL AT GLEN COVE, Defendants.

INDEX NO. 13532/07
SEQUENCE NO. 006
SEQUENCE NO. 007

SHORT FORM ORDER SUPREME COURT-NEW YORK STATE-NASSAU COUNTY PART 6

MOTION DATE: March 13, 2012
Dated: May 9, 2012
DATED: May 11, 2012


PRESENT: HON. ANTHONY L. PARGA
JUSTICE

Notice of Motion, Affs. & Exs.......................................................................................... 1
Notice of Cross-Motion & Affs......................................................................................... 2
Affirmation in Opposition & Exs.................................................................................... 3
Affirmation in Opposition................................................................................................ 4
Reply Affirmation............................................................................................................. 5
Affirmation in Reply.........................................................................................................6

Upon the foregoing papers, defendant Alan R. Shons, M.D.'s motion for summary judgment, pursuant to CPLR §3212, is granted, and plaintiff's complaint, together with all cross-claims, is hereby dismissed as against defendant Alan R. Shons, M.D. Plaintiff's cross-motion for an order striking the answer of the defendant Alan R. Shons, M.D. and precluding him from offering, utilizing and/or relying upon any expert testimony or affidavits due to his spoliation of evidence, is denied. The Court notes that this action has been previously voluntarily discontinued against all defendants except defendant Alan R. Shons, M.D.

This is an action for medical malpractice against defendant Alan R. Shons, M.D. (hereinafter "Shons") in connection with breast reconstruction surgeries which plaintiff Diane Montagnino underwent on September 20, 2004, February 2, 2005, May 6, 2005, and August 29,

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2006.

Defendant Shons moves for summary judgment on the grounds that Dr. Shons did not depart from good and accepted medical practice and that plaintiff was completely informed of all the risks associated with the surgeries, including breast implant deflation/failure, post surgical infection and wound healing associated with the procedures performed. In support of his motion, defendant Shons submits plaintiff's verified bill of particulars; defendant Shons's deposition transcript; portions of plaintiff's medical records from Dr. Shons and North Shore University Hospital, which include the operative reports from September 20, 2004, February 2, 2005, May 6, 2005, and August 29, 2006, and February 26, 2008; and an affirmation of defendant's expert, Dr. William Rosenblatt, M.D.

On September 20, 2004, plaintiff underwent bilateral mastectomies and bilateral sentinel node azillary lymphadenectomy which were performed by Dr. DeRisi. Immediately following said procedure, defendant Shons performed reconstruction of the right and left chest wall deformity with serratus anterior muscle flap and reconstruction of the right and left breast with tissue expanders. Thereafter, plaintiff between October 8, 2004 and December 20, 2004, plaintiff regularly saw Dr. Shons for post-operative and tissue expander checks, including incremental additions of 60 cc's of saline to each side until a total of 600 cc's had been inserted. On February 2, 2005, plaintiff underwent surgery in which Dr. Shons removed the right and left breast tissue expanders and placed permanent saline implants into the plaintiff. Dr. Shons examined the implants before filling them and inserting them. Thereafter, on May 3, 2005, plaintiff was seen by Dr. Shons where she reported that the right implant was slowly deflating. On May 6, 2005, Dr. Shons performed a removal of a failed right breast implant, open right breast capsulotomy, and immediate insertion of a new permanent right breast implant of the same type and manufacturer. In his operative report, Dr. Shons reported that the implant was "partially filled" and noted a "pinhole defect in the wall" of the implant. A year later, on May 11, 2006, plaintiff returned to Dr. Shons's office and complained of leaking of the left implant. On August 29, 2006, Dr. Shons performed revision of the plaintiff's left breast reconstruction, removal and replacement of the left breast saline implant. In his operative report, Dr. Shons noted that the implant was partially deflated and that "careful examination revealed a pinhole defect on the

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posterior wall of the implant...."

In January 2008, plaintiff was seen by another plastic surgeon, Dr. Ron Israeli, when her new right implant began deflating. Dr. Israeli removed the deflated right implant on February 26, 2008, and placed a new tissue expander rather than immediately placing a new implant. Dr. Israeli noted that the implant was deflated and that it "appeared grossly to be intact with an intact valve." Dr. Israeli did not report observing any pinhole defect in the third failed implant. Thereafter, on August 15, 2008, Dr. Israeli performed another surgery to remove the right tissue expander and the left implant and reconstruct both breasts with silicone gel implants.

Plaintiff alleges that Dr. Shons was negligent and guilty of malpractice in connection with two implants that he placed into plaintiff's chest on February 2, 2005 and with a third implant that he placed into plaintiff's chest on May 6, 2005.

Dr. William Rosenblatt, M.D., defendant Shons's expert, submits an affirmation in which he attests to the treatment rendered by Dr. Shons in connection with the plaintiff's multiple surgeries, and opines that "Mrs. Montagnino was, at all times, treated by Dr. Shons in accordance. with good and accepted medical standards of practice." Dr. Rosenblatt further attests:

"The fact that the plaintiff has three (3) implant deflations (twice on the right and once on the left) and each required surgical replacement is not, in and of itself, a departure from good and accepted medical standards. Deflation of saline implants and the need to undergo subsequent surgery is an accepted and known complication. While three such failures is highly unusual, it still does not implicate an iatrogenic etiology of these implant failures. I can state, within a reasonable degree of medical certainty, that it is virtually impossible that the deflations were the result of anything Dr. Shons may have done or failed to do, at the time of the surgical placement of the implants, given the time gap between the placement of each implant and deflation. If an implant is punctured/ penetrated for any reason, deflation occurs almost immediately.
Consequently, it is my opinion that Dr. Shons' plastic surgical care and treatment of Mrs. Montagnino was always appropriate and comported with accepted standards of medical and plastic reconstructive surgical care."

In a medical malpractice action, a plaintiff must prove that the defendant physician departed from the controlling standard of care and that "but for" the alleged wrongful conduct,

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plaintiff would not have suffered the injury complained of. (Lyons v. McCauley, 252 A.D.2d 516, 675 N.Y.S.2d 375 (2d Dept. 1998); Lynch v. Bay Ridge Obstetrical, 72 N.Y.2d 632, 536 N.Y.S.2d 11 (1998)). The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of injury or damage. (Heller v. Weinberg, 77 A.D.3d 622, 909 N.Y.S.2d 477 (2d Dept 2010); Anonymous v. Wyckoff Heights Medical Center, 73 A.D.3d 1104, 902 N.Y.S.2d 147 (2d Dept. 2010); Dolan v. Halpern, 73 A.D.3d 1117, 902 N.Y.S.2d 585 (2d Dept. 2010); Orsi v. Haralabatos, 89 A.D.3d 997, 934 N.Y.S.2d 195 (2d Dept. 2011)). On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. (Heller v. Weinberg, 11 A.D.3d 622, 909 N.Y.S.2d 477 (2d Dept 2010); Dolan v. Halpern, 73 A.D.3d 1117, 902 N.Y.S.2d 585 (2d Dept....

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