Strobel v. Talarico
| Decision Date | 03 January 2023 |
| Docket Number | Index No.: E2018-1247CV |
| Parties | Amanda STROBEL and Matthew Strobel, Plaintiffs, v. Joseph TALARICO, M.D., Canandaigua Medical Group, P.C., Leah Fuerst Kidder, P.A., St. James Hospital, Defendants. |
| Court | New York Supreme Court |
Catherine B. Dempsey, Esq., Dempsey and Dempsey for Plaintiffs
Thomas M. Prato, Esq., Brown, Gruttadaro & Prato, PLLC, for Defendant Talarico
Daniel J. Doyle, J. Amanda Strobel (hereinafter "Plaintiff") initiated this action sounding in medical malpractice against Joseph Talarico, M.D.1 (hereinafter "Defendant") alleging various claims of negligence surrounding Plaintiff's gallbladder surgery
conducted on November 6, 2017.
Defendant has now moved for summary judgment dismissing the complaint, or individual claims of negligence alleged in the Plaintiff's Bill of Particulars. For the reasons that follow, the Defendant's motion is GRANTED in part and DENIED in part.
Plaintiff was examined by the Defendant on October 31, 2017, in preparation for a laparoscopic cholecystectomy
as she was suffering from apparent cholecystitis due to gallstones. She was examined by the Defendant and the risks and benefits of the procedure were discussed with the Plaintiff.2
The surgery was conducted by the Defendant on November 6, 2017. During the surgery, the Plaintiff's common bile duct was cut approximately 2 centimeters below the bifurcation of the right and left hepatic duct.3 Thereafter, Plaintiff was transported to Strong Memorial Hospital where she underwent an open repair surgery a Roux-en-Y Choledochojejunostomy
.
Plaintiff, in her verified Bill of Particulars, alleged the following claims of negligence as to the Defendant: (1) failed to perform a proper physical examination; (2) failed to obtain an adequate history; (3) failed to keep proper and accurate medical records; (4) failed to possess sufficient knowledge and skill to properly perform a laparoscopic cholecystectomy
; (5) improperly and negligently performed a laparoscopic cholecystectomy ; (6) failed to engage the services of a physician with the necessary and appropriate skills to assist with the laparoscopic surgery ; (7) improperly and negligently performed laparoscopic cholecystectomy with only a physician's assistant to assist; (8) failed to obtain proper visualization of the surgical field; (9) failed to convert to an open procedure; (10) failed to properly identify the entire hepatic ductal system before proceeding with the cholecystectomy ; (11) misidentified the right and left hepatic ducts, common hepatic duct, common bile duct and cystic duct; (12) wrongly and errantly applied clips to the right and left hepatic ducts, common hepatic and/or common bile ducts; (13) wrongly transected the right, left and/or common hepatic ducts; (14) wrongly caused a Strasberg DIE injury to the bile duct system; (15) applied excessive and/or misdirected traction on the biliary structures, blood vessels and bile ducts, thus distorting the anatomy; (16) performed surgery outside of the scope of his capability; (17) improperly excised the right and left hepatic ducts, the common hepatic duct, the common bile duct and the left hepatic artery; (18) misused cautery and thus injured the bile ducts ; (19) failed to obtain medical clearance before surgery; (20) failed to reduce the risk of injury to the bile duct system during surgery; (21) failed to take due cognizance of the fact that plaintiffs gallbladder was significantly inflamed; (22) failed to consider and implement conservative treatment options to reduce the inflammation prior to surgery; (23) failed to place a tube to drain the gallbladder of excess bile; (24) failed to "rest" the gallbladder before performing surgery; (25) failed to identify and adhere to the "critical view of safety" and the "Triangle of Calot" before transection; (26) failed to perform an intra-op cholangiogram during surgery to better visualize the anatomy of the bile duct system from the liver to the small intestine and to prevent injury to the surrounding structures and organs; and (27) failed to care for the plaintiff in a medically advised, acceptable and adequate manner such that her injuries would not have occurred.4
In support of his summary judgment motion the Defendant submits his own affidavit wherein he avers as to his education, training, and experience as a surgeon specializing in laparoscopic and bariatric surgery. Dr. Talarico, in his affidavit, addresses each claim of negligence set forth in the Plaintiff's Bill of Particulars and ultimately opines that he followed appropriate standards of care in conducting the surgical procedure on November 6, 2017.5
Plaintiff counters the Defendant's evidentiary showing with an expert affidavit from a board-certified surgeon. The expert's name was redacted, but the Court reviewed the unredacted affidavit in camera. ( Vega v. Mount Sinai-NYU Medical Center and Health System , 13 A.D.3d 62, 786 N.Y.S.2d 23 [1st Dept. 2004].)
Plaintiff's expert opined that the Defendant deviated from accepted standards of medical care and was the cause of the Plaintiff's injuries. Specifically, the expert opined that the Defendant deviated from the standard of care in failing to properly identify the Plaintiff's anatomy and thereby cutting the common bile duct and in failing to obtain "the critical view of safety" as required by the "critical view of safety technique".6 However, the expert did not address all allegations of negligence made by the Plaintiff in her bill of particulars.
Defendants are entitled to Summary Judgment Dismissing Certain Claims of Negligence
In applying the well-settled standards for summary judgment generally7 , those applicable to defense motions for summary judgment in medical malpractice actions,8 there are triable issues of fact on the instant record with respect to the Plaintiff's causes of action.
In light of the conflicting expert opinions, there exists a quintessential battle of the experts and such battles are best left for a jury's resolution and not this Court on papers. "Where, as here, a nonmovant's expert affidavit ‘squarely opposes’ the affirmation of the moving parties’ expert, the result is ‘a classic battle of the experts that is properly left to a jury for resolution’ " ( Mason v. Adhikary , 159 A.D.3d 1438, 1439, 73 N.Y.S.3d 691 [4th Dept. 2018] ). ( Nowelle B. v. Hamilton Med., Inc. , 177 A.D.3d 1256, 1258, 110 N.Y.S.3d 475 [4th Dept. 2019].) Thus, on this record and assuming arguendo that Defendant has met their prima facie burden establishing entitlement to summary judgment as a matter of law, Plaintiff raised triable issues of fact in response. Thus, the Defendant's motion for summary judgment to dismiss the complaint must be denied.
However, the Defendant argues that he is entitled to dismissal of those claims in the Plaintiff's bill of particulars not addressed by the Plaintiff's expert in his responding affidavit, citing ( Bubar v. Brodman, 177 A.D.3d 1358, 111 N.Y.S.3d 483 [4th Dept. 2019] ). The Plaintiff, citing ( Abbotoy v. Kurss, 52 A.D.3d 1311, 860 N.Y.S.2d 364 [4th Dept. 2008] ) disagrees.
Although Bubar — a medical malpractice action — is frequently cited as the decision abandoned the previous burden placed upon plaintiffs responding to a summary judgment motion in a medical malpractice action by O'Shea v. Buffalo Medical Group, P.C., 64 A.D.3d 1140, 882 N.Y.S.2d 619 (4th Dept. 2009)abrogated by ( Bubar v. Brodman, 177 A.D.3d 1358, 111 N.Y.S.3d 483 [4th Dept. 2019] ), contained therein is another holding with significant impact on medical malpractice summary judgment motions- the ability of defendants in medical malpractice actions to seek dismissal of claims of negligence contained in a bill of particulars.
A medical malpractice defendant meets their initial burden on a summary judgment motion seeking dismissal of the complaint when they present factual evidence that "address[ed] each of the specific factual claims of negligence raised in plaintiff's bill of particulars" ( Larsen v. Banwar , 70 A.D.3d 1337, 1338, 893 N.Y.S.2d 794 [4th Dept. 2010] ) and was "detailed, specific and factual in nature" ( Macaluso v. Pilcher , 145 A.D.3d 1559, 1560, 43 N.Y.S.3d 658 [4th Dept. 2016] [internal quotation marks omitted]; see Groff v. Kaleida Health , 161 A.D.3d 1518, 1520, 76 N.Y.S.3d 714 [4th Dept. 2018] )" ( Pasek v. Cath. Health Sys., Inc. , 186 A.D.3d 1035, 1036, 129 N.Y.S.3d 585 [4th Dept. 2020].) To rebut this initial burden, the plaintiff must respond with evidentiary submissions that create an issue of fact. This is normally accomplished through an expert affidavit submitted by the plaintiff.
In Abbotoy v. Kurss , supra , the Fourth Department rejected an argument by the medical malpractice defendant therein that the failure of the plaintiffs’ expert to rebut the defendant's expert as to all claims of negligence contained in the bill of particulars required dismissal of those claims not specifically addressed. The Court held:
We reject the contention of defendant that he is entitled to partial summary judgment with respect to those allegations in the bill of particulars not specifically addressed by plaintiffs’ experts. Defendant's contention is based on a misperception of the function of a bill of particulars. "[A] bill of particulars is not a pleading, but just an expansion of one" ( Siegel, NY Prac § 238, at 401 [4th ed]). The expert affidavits submitted by plaintiffs set forth in detail the manner in which defendant deviated from the standard of care and how those deviations caused or contributed to their son's injuries, thereby raising triable issues of fact with respect to the causes of action for negligence and medical malpractice. Contrary to defendant's contention, plaintiffs were not required to submit an expert opinion with respect to each allegation in the bill of particulars inasmuch as the bill of particulars merely amplified those causes of action (...
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