Rivers v. Birnbaum

• Decision Date: 17 October 2012
• Parties: Joanne Berrouet RIVERS, et al., plaintiffs-appellants-respondents, v. Eliot L. BIRNBAUM, etc., et al., defendants, Robin Bliss, etc., et al., defendants-respondents, Kim Rosary DeCastro, etc., defendant-appellant.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 26

953 N.Y.S.2d 232

2012 N.Y. Slip Op. 06935

Joanne Berrouet RIVERS, et al., plaintiffs-appellants-respondents,

v. Eliot L. BIRNBAUM, etc., et al., defendants,Robin Bliss, etc., et al., defendants-respondents,Kim Rosary DeCastro, etc., defendant-appellant.

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

Oct. 17, 2012.

Mark R. Bower, P.C., New York, N.Y., for plaintiffs-appellants-respondents.

Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Wayne E. Spaeth of counsel), for defendant-appellant.

Rogak & Gibbons, LLP, Uniondale, N.Y. (Louise H. Feffer and David B. De Siver of counsel), for defendant-respondent Robin Bliss.

Anthony P. Vardaro, P.C., Smithtown, N.Y. (Rosemary Martinson of counsel), for defendant-respondent Alan MacDonald.

Bower Monte & Greene, P.C., New York, N.Y. (Mitchell A. Greene of counsel), for defendant-respondent St. Catherine of Siena Medical Center.

RUTH C. BALKIN, J.P., ARIEL E. BELEN, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

BELEN, J.

This case presents us with an opportunity to clarify the rule regarding a court's consideration of an expert's affirmation or affidavit submitted on a timely motion for summary judgment where the offering party did not disclose the expert duringdiscovery pursuant to CPLR 3101(d)(1) (i) before the filing of a note of issue and certificate of readiness. We hold that a party's failure to disclose its experts pursuant to CPLR 3101(d)(1) (i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment.

The plaintiffs allege that the defendants committed medical malpractice in failing to properly diagnose and advise the allegedly injured plaintiff, Joanne Berrouet Rivers (hereinafter the injured plaintiff), of conditions that led to the development in her of a gynecological cancer known as choriocarcinoma. On March 1, 2006, the injured plaintiff was seen by the defendant Kim Rosary DeCastro, a nurse practioner and an employee of the defendant Women's Health Care of Suffolk County (hereinafter WHC),¹ during a healthcare visit. DeCastro conducted a pelvic exam, which proved to be within normal limits, and assessed that the injured plaintiff was 5 1/2 weeks pregnant. The injured plaintiff was next seen by DeCastro on March 15, 2006. At this visit, the injured plaintiff complained of pain radiating to her back and shortness of breath, and was prescribed amoxicillin to treat chlamydia.

On March 22, 2006, after the injured plaintiff complained of cramping and a “pink, yogurty discharge,” she underwent a sonogram, which showed that there were very faint fetal heart tones and that the fetus was at 7 weeks' gestation. A sonogram from March 29, 2006, showed that the fetus had died.

On April 3, 2006, the injured plaintiff went to the defendant St. Catherine of Siena Medical Center (hereinafter the Medical Center) for a dilation and curettage, which was performed by the defendant Eliot L. Birnbaum. The tissue that was recovered during the procedure was examined by the defendant Alan MacDonald, a pathologist.

According to a Surgical Pathology Report written by MacDonald dated April 5, 2006, the tissue contained no fetal parts. MacDonald made the following diagnosis:

“Uterus, Uterine Contents:

* Immature chorionic villi, with focal zones of surface trophoblast hyperplasia noted.

* Necrotic decidual tissue.

* Probable portions of placental implantation site.”

MacDonald indicated in his report that he spoke with Birnbaum on April 4, 2006, about his findings.

At her deposition, DeCastro testified that the recognition and diagnosis of trophoblasic disease is outside her training, knowledge, and experience as a nurse practitioner. She further testified that she generally does not review pathology reports, as such a task is usually performed by Birnbaum or Bliss, or by whichever surgeon performed the dilation and curettage.

By August 2006, the injured plaintiff had become pregnant again. Sonograms during this pregnancy showed that the fetus was growing and developing normally. In February 2007, the injured plaintiff complained of back pain, and a renal ultrasound was ordered. The injured plaintiff underwent renal ultrasounds on February 2, 2007, and March 21, 2007, which were interpreted by nonparty Moses Williams, a radiologist at the Medical Center who prepared reports pertaining to his findings. Williams described in his reports the presence of an echogenic lesion in the mid-section of the right kidney, which he identified as “hyperechoic” and consistent with an angiomyolipoma, which is a benign tumor. On April 2, 2007, the injured plaintiff gave birth to a healthy baby boy by caesarean section. Soon thereafter, in June 2007, she was diagnosed with metastatic choriocarcinoma.

The injured plaintiff and her husband commenced this action in June 2008, asserting, on behalf of the injured plaintiff, causes of action to recover damages for medical malpractice, negligent hiring and supervision, and lack of informed consent, and a derivative cause of action on behalf of the injured plaintiff's husband. By demand dated August 26, 2008, the plaintiffs requested, pursuant to CPLR 3101(d)(1)(i), that the defendants disclose information regarding their expected expert trial witnesses. On or about January 26, 2010, the plaintiffs disclosed their expert trial witness information to the defendants. Before any of the defendants responded to the plaintiffs' CPLR 3101(d)(1)(i) request, on or about February 3, 2010, the plaintiffs filed a note of issue and certificate of readiness.²

Thereafter, the defendants Bliss, MacDonald, the Medical Center, and DeCastro ³ (hereinafter collectively the moving defendants) separately moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them, relying on, inter alia, affirmations from physicians-experts whose identity they had not disclosed during discovery. Bliss argued that she was entitled to judgment on the ground that she never provided any medical care to the plaintiff.⁴

The plaintiffs opposed the motions and cross-moved for summary judgment on the issue of liability against MacDonald. In opposing the motions of MacDonald, the Medical Center, and DeCastro, the plaintiffs argued, in pertinent part, that the expert affirmations submitted by those defendants should be precluded because they failed to respond to their request, made during discovery, for expert disclosure pursuant to CPLR 3101(d)(1)(i) before the note of issue and certificate of readiness were filed.

In rejecting the plaintiffs' argument, the Supreme Court held that the failure of MacDonald, the Medical Center, and DeCastro to respond to the plaintiffs' CPLR 3101(d)(1)(i) request did not warrant preclusion of their expert affirmations since the statute does not require expert disclosure at any particular time and does not mandate preclusion for noncompliance. The Supreme Court also found no evidence that the failure of these defendants to disclose their expert information was intentional or willful, and there was no showing that their nondisclosure prejudiced the plaintiffs.

Turning to the merits of the moving defendants' motions, the Supreme Court determined that MacDonald, the Medical Center, and DeCastro each established their prima facie entitlement to judgment as a matter of law through the affirmations of their respective experts. The Supreme Court further determined that the affirmations ⁵ of the plaintiffs' experts submitted in opposition to the motions of MacDonald and the Medical Center were technically defective because the experts were not licensed to practice medicine in New York. However, the Supreme Court determined that the affirmation of the plaintiffs' expert submitted in opposition to DeCastro's motion raised a triable issue of fact as to whether DeCastro departed from accepted standards of medical care. Accordingly, the Supreme Court granted the motions of MacDonald and the Medical Center for summary judgment, and denied DeCastro's motion for summary judgment. The Supreme Court granted Bliss's motion for summary judgment, concluding that the plaintiffs did not raise a triable issue of fact in opposition to Bliss's prima facie case, since they submitted only the affirmation of their attorney ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

With respect to the plaintiffs' cross motion, in effect, for summary judgment on the issue of liability against MacDonald, the Supreme Court determined that the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law because their out-of-state expert's affirmation was technically defective.

The plaintiffs appeal from so much of the Supreme Court's order as granted those branches of the separate motions of MacDonald, the Medical Center, and Bliss which were for summary judgment dismissing the complaint insofar as asserted against each of them, and denied their cross motion, in effect, for summary judgment on the issue of liability against MacDonald. Among other things, the plaintiffs argue that the Supreme Court should not have considered the affirmations submitted by these defendants, since they failed to disclose their experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of the note of issue and certificate of readiness. DeCastro separately appeals from so much of the same order as denied that branch of her motion which was for summary judgment dismissing the complaint insofar as asserted against her, arguing that the plaintiffs failed to raise a triable issue of fact in opposition to her prima facie showing of entitlement to judgment as a matter of law. We affirm the order insofar as appealed from by the plaintiffs, and reverse the order insofar as appealed from by DeCastro.

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