Ostrov v. Rozbruch

• Decision Date: 03 January 2012
• Citation: 2012 N.Y. Slip Op. 00022,936 N.Y.S.2d 31,91 A.D.3d 147
• Parties: Deborah OSTROV, Plaintiff–Respondent, v. Jacob ROZBRUCH, M.D., Defendant–Appellant,Beth Israel Medical Center, Defendant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00022

91 A.D.3d 147

936 N.Y.S.2d 31

Deborah OSTROV, Plaintiff–Respondent,

v.Jacob ROZBRUCH, M.D., Defendant–Appellant,Beth Israel Medical Center, Defendant.

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

Jan. 3, 2012.

Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner and Daryl Paxson of counsel), for appellant.

Kramer, Dillof, Livingston & Moore, New York (Matthew Gaier of counsel), for respondent.

RICHARD T. ANDRIAS, J.P., JOHN W. SWEENY, JR., KARLA MOSKOWITZ, ROSALYN H. RICHTER, NELSON R. ROMAN, JJ.

SWEENY, J.

This medical malpractice action requires us to refine the scope of supplemental submissions on motions for summary judgment.

Plaintiff is an 80–year–old woman with a long history of orthopedic and vascular problems. She has been treated over the years by a number of physicians in various medical disciplines, including defendant, an orthopedic surgeon. Defendant Jacob Rozbruch, M.D. treated plaintiff for a variety of orthopedic conditions and performed a number of surgeries, including a 2001 elbow fracture repair, a 2001 total hip replacement, a 2003 total right knee replacement and a 2004 total left knee replacement, the latter being the subject of this litigation.

On November 14, 2001, at a follow-up visit concerning plaintiff's hip replacement surgery, defendant observed that plaintiff had limited range of motion in the lower extremities. X rays revealed end-stage osteoarthritis to the right knee, and defendant recommended bilateral knee replacement surgery. Plaintiff did not have surgery at that time but returned to defendant's office in September 2003, complaining of severe pain in her right knee. Defendant again recommended bilateral knee replacement surgery, and, on October 13, 2003, a right knee replacement was performed at Beth Israel Medical Center.

During postsurgical rehabilitation for the right knee replacement, it was noted that plaintiff suffered numbness of the left lower extremity, which condition had apparently commenced prior to the right knee surgery. Defendant performed some tests and, on November 11, 2004, recommended that plaintiff also undergo left knee replacement surgery. On March 12, 2004, defendant noted a plan to schedule the left knee replacement surgery for May, following preoperative clearance by plaintiff's internist and a consult by a foot specialist.

On June 7, 2004, defendant performed a total left knee replacement on plaintiff at Beth Israel. On June 11, a Beth Israel physical therapist observed swelling on plaintiff's left leg, which was similar to that observed after the surgery on her right knee. This swelling continued to increase and in December 2004 plaintiff's vascular surgeon, Dr. Haveson, noted that he was “mystified” by the swelling. Plaintiff thereafter was treated by a number of different medical providers for this condition throughout 2005 and into 2006. The reports of at least two of these providers attributed her condition to the left knee surgery.

Plaintiff commenced this medical malpractice action on or about November 7, 2006. In her bill of particulars, plaintiff alleged, inter alia, that defendant doctor was “careless, unskillful and negligent in failing to pay sufficient heed to plaintiff's prior history ... in failing to timely and properly assess the vascular status of the left lower extremity pre-operatively.” Plaintiff also alleged that the surgery on her left knee was improperly performed.¹

On August 17, 2009, defendant doctor timely moved for summary judgment, arguing that plaintiff was an appropriate candidate for surgery, that the surgery was properly performed, and that no interoperative vascular injury occurred. In support of his motion, defendant submitted the affidavits of six experts, four of whom were plaintiff's own treating physicians. In opposition, plaintiff argued that questions of fact existed concerning , inter alia, whether defendant departed from good and accepted medical practice in recommending and performing the left knee replacement, given the totality of plaintiff's prior medical history. In support, plaintiff submitted the affidavit of her expert orthopedic surgeon, name redacted, who opined that given plaintiff's longstanding diagnosis of chronic venous insufficiency, as well as specific problems concerning her left foot, toes and leg, the surgery was contraindicated.

In reply, defendant argued that plaintiff had not specifically pointed out how the surgery at issue was negligently performed. As to whether the surgery was contraindicated, defendant argued that plaintiff never properly pleaded such an allegation in either her complaint or bill of particulars and that plaintiff's orthopedic expert's opinions on this issue were unsupported and conclusory.

On July 7, 2010, the motion court heard oral argument on defendant's motion and on the hospital's motion for summary judgment. In an order dated July 12, 2010, the court granted summary judgment to defendant hospital, but held defendant doctor's motion in abeyance. The court concluded that defendant doctor made a prima facie showing that he had not departed from accepted medical/surgical care in his treatment of plaintiff, thus shifting the burden to plaintiff to demonstrate the existence of material issues of fact. The court went on to state that while plaintiff's expert had not taken issue with the manner in which the surgery was performed, he opined that defendant doctor had deviated from accepted medical care by performing the surgery in the first place, stating it was contraindicated by plaintiff's past history of vascular issues. Noting that defendant's position that he was “never explicitly on notice” of this new claim (i.e., that the surgery was contraindicated) had “some merit,” the court nevertheless was troubled by the “limited discussion by the plaintiff's expert as to why this precise surgical procedure, the total left knee replacement, was contraindicated in light of plaintiff's history and clinical picture and also as to the mechanism of the injury.” The court found plaintiff's expert's affirmation did not provide specifics as to why the surgery was contraindicated or how the surgery caused the specific postsurgical deterioration. Observing that it “could be argued” that this lack of evidence warranted granting of defendant's motion, the court nevertheless decided that the “better practice” would be to direct both sides to submit additional evidence.

Pursuant to the court's direction, plaintiff submitted an expert affirmation from a vascular surgeon, who opined in essence that, due to plaintiff's chronic venous disorders, knee replacement surgery would exacerbate her condition and thus the surgery was contraindicated. Defendant submitted three additional expert affirmations from three additional expert physicians, as well as supplemental affirmations from three previously named experts, which in essence contradicted plaintiff's new expert and clarified previously submitted affirmations. Of note is the fact that plaintiff's additional expert was from a different medical discipline (vascular surgery) and did not submit an affirmation in the original opposition papers. Similarly, although defendant did submit supplemental affirmations from three of his experts who had provided affirmations on the original motion, he too submitted affirmations from three experts who had not previously provided affirmations.

The motion court again heard oral argument, at which time plaintiff's counsel, by way of rebuttal, handed up to the court a medical article authored by three of defendant's additional experts in an attempt to impeach their opinions. Significantly, defendant's counsel was not provided with this article before oral argument and it was not cited by any expert for either party. Plaintiff's counsel also advised the court that plaintiff's right leg had been amputated.

In a decision dated January 14, 2011, the court noted that plaintiff's three right knee “subsequent surgeries appeared to be a powerful argument in favor of the disputed June 2004 left knee surgery despite the plaintiff's circulatory problems,” especially since they were performed by doctors other than defendant. However, the court stated that this argument “loses its appeal” because, as counsel noted at oral argument, plaintiff's right leg was subsequently amputated. Significantly, the record before us is devoid of any evidence concerning plaintiff's right leg amputation. There is also no indication regarding the reason for such amputation. Most importantly, the relevance of the alleged right leg amputation to the claims of malpractice regarding plaintiff's left knee surgery were not discussed in the decision and are not part of the record before us. The court ultimately granted defendant's motion for summary judgment dismissing all causes of action except for the claim that the June 2004 “total left knee replacement was contraindicated in light of what was known and could have been reasonably anticipated regarding plaintiff's venous disorder.” Defendant appeals.

We start with an examination of the basic purpose of summary judgment.

Calling summary judgment “a valuable, practical tool for resolving cases that involve only questions of law,” the Court of Appeals stated it was “a great benefit both to the parties and to the overburdened New York State trial courts” by allowing a party to show that there is no material issue of fact to be tried, “thereby avoiding needless litigation cost and delay” ( Brill v. City of New York, 2 N.Y.3d 648, 651, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004] ). As the Court recognized in Brill, these benefits can only be realized when motions for summary judgment are timely brought. The Legislature agreed, and in a 1996 amendment to CPLR 3212(a), provided that such motions be brought within 120 days after the filing of the note of issue, except for good cause shown. The goal, of course, is to...