Vincent Collins and Cathleen Collins, Plaintiffs, v. LLC (2023)

Plaintiffs Vincent Collins and Cathleen Collins  ¹ commenced this medical malpractice action by the filing of a summons and complaint on June 25, 2021. The complaint also includes a cause of action as to lack of informed consent. Plaintiffs allege that Mr. Collins sustained a subdural hematoma and required emergency neurosurgery as a result of chiropractic treatment provided by the Defendants.

Defendants Joshua R. Rinaldi, D.C., and Integrative Health, LLC, d/b/a Amplify Chiropractic & Wellness  ² (largely referred to herein as "Dr. Rinaldi") now move for summary judgment and dismissal of the Plaintiffs' complaint with prejudice. Defendants also request a Frye Hearing as to whether the injury sustained by Mr. Collins could have been caused by the treatment rendered by Defendants.

Plaintiffs oppose the motion and cross-move seeking summary judgment as to the lack of informed consent claim. They further seek dismissal of Defendants' first affirmative defense.

The Court read and considered NYSCEF documents numbered 24-39, 41-72, 81-84.

Factual Background  ³

On March 3, 2021, Plaintiff Vincent Collins presented to Dr. Rinaldi for chiropractic care. Plaintiff complained of a tingling in his "right trap". This was Plaintiff's first visit with Dr. Rinaldi but he had received chiropractic care in the past. During his Examination Before Trial, Dr. Rinaldi testified that he examined Plaintiff and diagnosed him with spinal subluxations and scar tissue formation. After providing adjunctive therapy, Dr. Rinaldi administered long axis traction through the use of a Y-Strap device. Dr. Rinaldi did not advise Mr. Collins of any risks associated with treatment utilizing a Y-Strap.

Mr. Collins testified during his deposition that he "felt dizzy" following the adjustment with the Y-Strap device. He developed a headache and felt pressure and pain behind his eyes that evening. His headache persisted, as did the pressure and pain behind his eyes, up until he consulted with Dr. John Abrahams, a neurosurgeon, on March 9, 2021. Mr. Collins' wife testified that Mr. Collins also had mobility issues and weakness leading up to his appointment with Dr. Abrahams. Mr. Collins continued to work and went to the gym during this period of time.

Dr. Abrahams ordered a cervical MRI, which was performed on March 10, 2021. The parties agree the results were within normal limits and did not show a spinal fracture or dislocation. Dr. Abrahams then ordered an urgent head CT Scan which was performed that same day. The scan revealed a "large left frontoparietal acute subdural hematoma,"⁴ up to 3 cm of the lateral convexity. A 1.2 cm midline shift was noted with compression of the right lateral ventricle. It was further noted that the subdural hematoma extended into the frontal convexity. On March 10, 2021, Mr. Collins underwent an emergency right frontal craniotomy with evacuation of cerebral hematoma by Dr. Abrahams.

Discussion

It is well settled that on a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065 [1979]. The failure to establish a prima facie case requires denial of the summary judgment motion, regardless of the sufficiency of the opposition papers. Id.; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986].

If a prima facie showing is made, the burden shifts to the opponent of the motion who, in order to defeat summary judgment, must proffer evidence in admissible form sufficient to require a trial of any issue of fact or demonstrate an acceptable excuse for his failure to do so. Zuckerman v. City of New York, supra.

On a motion for summary judgment, the court's function is to determine if a factual issue exists and "the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine." Brown v. Kass, 91 AD3d 894, 895 2d Dept. [2012] [citations omitted]. That is, it is not the court's function on a motion for summary judgment to assess credibility, Chimbo v. Bolivar, 142 AD3d 944 [2d Dept. 2016]; Garcia v. Stewart, 120 AD3d 1298, 1299 [2d Dept. 2014], or to engage in the weighing of evidence. Scott v. Long Is. Power Auth., 294 AD2d 348 [2d Dept. 2002]. A motion for summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility." Ruiz v. Griffin, 71 AD3d 1112, 1115 [2d Dept. 2010].

Malpractice Claims

Healthcare providers owe a duty of reasonable care to their patients while rendering medical treatment and a breach of this duty constitutes medical malpractice. See Dupree v. Giugliano, 20 NY3d 921, 924 [2012]. In a medical malpractice case, a defendant moving for summary judgment "must make a prima facie showing either that he or she did not depart from good and accepted medical practice or that any departure was not a proximate cause of the plaintiff's injuries." Smith v. Mollica, 158 AD3d 656, 658 [2d Dept. 2018] citing Omane v. Sambaziotis, 150 AD3d 1126 [2d Dept. 2017]; see also Burns v. Goyal, 145 AD3d 952, 954 [2d Dept. 2016]. In order to meet this burden, a defendant must "address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars." Mackauer v. Parikh, 148 AD3d 873, 876 [2d Dept. 2017] (citations omitted); see also Grant v. Hudson Val. Hosp. Ctr., 55 AD3d 874, 874 [2d Dept. 2008]. "Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause." Burns, supra, citing Koehler v. Schwartz, 48 NY2d 807 [1979].

Once the defendant has made this showing, the burden shifts to the plaintiff to "submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact." Lefkowitz v. Kelly, 170 AD3d 1148, 1149-1150 [2d Dept. 2019]; see also Kerrins v. South Nassau Communities Hosp., 148 AD3d 795 [2d Dept. 2017]. A plaintiff must produce expert testimony regarding specific acts of malpractice and not just testimony that alleges "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice." Alvarez, supra; DiLorenzo v. Zaso, 148 AD3d 1111, 1112 [2d Dept. 2017]. The court should not grant summary judgment "where the parties adduce conflicting medical expert opinions." DiLorenzo v. Zaso, supra, citing Feinberg v. Feit, 23 AD3d 517, 519 [2d Dept. 2005].

The Defendants maintain that Dr. Rinaldi provided appropriate chiropractic treatment to Mr. Collins which was within the standard of care. They also argue that no act of Dr. Rinaldi could have caused the injury claimed by Plaintiff. To support their position, Defendants submit the pleadings, transcripts of the Examination Before Trial of Dr. Rinaldi as well as photographs and videos of Y-Strap adjustment.⁵ Defendants further submit an affidavit from Dr. Rinaldi, Craig Fishel, D.C. and Jack Goodman, M.D.

Dr. Fishel is a chiropractor who is familiar with the use of the Y-Axis Traction Strap device as a mode of adjusting and traction treatment of the cervical and thoracic spine. He contends that use of the Y-Strap is appropriate for shoulder and lower back impingement, conditions with which Plaintiff presented. He opines that Plaintiff's testimony as to the manner in which the procedure was performed does not establish the use of excessive force by Dr. Rinaldi. Dr. Fishel further avers that there no known foreseeable risks to "Defendant's adjustment of Plaintiff through the use of the Y axis strap in this clinical context" and there are no reported injuries or complications of the type alleged by Plaintiffs.

In his affidavit, Dr. Rinaldi states that he examined Mr. Collins and that the patient did not present with any history that would require imaging. He explained to Mr. Collins his indications for the use of the Y-Strap. Dr. Rinaldi then utilized the Y-Strap in the manner depicted in the videos. There was no need to advise of any risks as there were no reasonably foreseeable risks of harm to Mr. Collins given his clinical presentation.

A board certified neurosurgeon, Dr. Jack Goodman opines that the treatment did not cause the subdural hematoma and that the condition was pre-existing.

In opposition, Plaintiffs submit, inter alia, the pleadings, transcripts from the depositions of Plaintiffs and Dr. Rinaldi as well as non-parties, Mr. Collins' medical records, including his records from his visit with Dr. Rinaldi, videos of Dr. Rinaldi performing a Y-Strap adjustment to a man and a woman, respectively, and a video of the Plaintiff from March 10, 2021. Plaintiffs also provide expert support from Mr. Collins' treating neurosurgeon, John M. Abrahams, M.D., a neuroradiologist, Marc Katzman, M.D., and a chiropractor, Alan Bragman, D.C.

Dr. Bragman details departures from the standard of care by Dr. Rinaldi in his treatment of Plaintiff. According to Dr. Bragman, Dr. Rinaldi departed by "yanking" Mr. Collins' head with great force, as described by Mr. Collins, during the Y-Strap adjustment. Dr. Rinaldi further failed to take a complete history or perform a complete physical exam. In addition, there was no basis for treatment of Mr. Collins' cervical spine as Dr. Rinaldi's chart does not indicate that the patient had any complaints of cervical pain.⁶

As for causation, Dr. Katzman reviewed the Plaintiff's March 10, 2021 head CT scan and concludes that Plaintiff' subdural hematoma was approximately one-week old, which was the date of Plaintiff's treatment with the Defendants. Dr. Katzman specifically disagrees with the defense neurosurgeon as to the chronicity of the bleed. Dr. Abrahams affirms that Plaintiff suffered a tear in his bridging vein, and a resultant subdural hematoma, which was caused by the high velocity, low amplitude Y-Axis adjustment performed by Dr. Rinaldi on March 3, 2021. Dr. Abrahams also disagrees with the defense neurosurgeon's conclusion.

The parties have also filed replies to the other's opposition papers. The defense reply includes the affirmations of Richard J. Friedland, M.D., a neuroradiologist, as well as of Dr. Goodman and Dr. Fishel. These experts dispute the conclusions reached by Dr. Bragman, Dr. Abrahams and Dr. Katzman. Counsel for Defendants also contends that the Plaintiffs' submissions have procedural deficiencies. Plaintiffs' reply consists of legal argument as to the Defendants' opposition.

Defendants have met their prima facie burden of proof and the burden shifts to the Plaintiff. Zuckerman, supra. Defendants argue that the Court should not consider Plaintiff's opposition because of procedural deficiencies. Defendants allege the cross-motion of Plaintiff is untimely and the affidavit of Dr. Bragman lacks the certificate of conformity required by CPLR § 2309 (c).

Addressing the timeliness issue first, the Court provided a schedule at a conference on January 5, 2023, whereby summary judgment motions were to be filed March 8, 2023, with opposition by April 5, 2023 and reply due April 19, 2023. The parties later consented that Plaintiffs' opposition could be filed April 10. The Court approved the schedule and set a submission date of May 1, 2023. Plaintiffs filed a cross-motion along with their opposition. The Defendants contend only opposition could be filed by April 10, not a cross-motion. Nevertheless, the Court will consider the cross-motion as it is premised upon opinions and/or statements made by the defense in their motion. Thus, Plaintiff could not have filed the motion earlier. There is no prejudice to the Defendants and both parties have had the opportunity to fully brief their positions.

As for the Certificate of Conformity, Plaintiff has cured this defect by providing an affidavit from Dr. Bragman containing the certificate. The failure to attach a certificate is not a fatal defect, Snutz v. Allstate Ins. Co., 38 AD3d 522 [2d Dept. 2007], and it may be corrected nunc pro tunc. U.S. Bank N.A. v. Dellarmo, 94 AD3d 746 [2d Dept. 2012]. The defect may also be disregarded pursuant to CPLR 2001 where a substantial right of a party is not prejudiced. Midfirst Bank v. Agno, 121 AD3d 343 [2d Dept. 2014]. As Defendants do not identify any prejudice, the Court will consider the affidavit.

In opposition, Plaintiffs provide expert affidavits which describe the standard of care, explain how Dr. Rinaldi departed from these standards and conclude that these departures were the proximate cause of Mr. Collins' injuries. Smith v. Mollica, supra. These experts support Plaintiff's claim that Dr. Rinaldi improperly performed a Y-Strap adjustment on March 3, 2021, in that he used excessive force and that the rapid acceleration and deceleration of the adjustment tore a bridging vein, causing a subdural hematoma.

The parties' submissions plainly illustrate that there are conflicting medical opinions as to alleged departures and causation. There are disputes as to the facts supportive of the experts' conclusions. The parties' experts differ as to the duration of the bleed, which relates directly to the expert opinions as to causation. Further, the defense experts attack the credibility of the conclusions reached by the Plaintiffs' experts and the defense chiropractor specifically questions the experience of Plaintiffs' chiropractor. All of these are issues for the finder of fact. After review of the submissions, the Court cannot imagine a better example of conflicting medical opinions. Lefkowitz v. Kelly, supra. The motion is denied.

Informed Consent

A claim for lack of informed consent "is a distinct cause of action which requires proof of facts not contemplated by an action based merely on allegations of negligence." Kleinman v. North Shore Univ. Hosp., 148 AD3d 693, 694 [2d Dept. 2017]. Claims of lack of informed consent are statutorily defined. See Pub. Health Law § 2805-d. A practitioner providing treatment or diagnosis must disclose to the patient the alternatives and reasonably foreseeable risks and benefits involved as a reasonable physician under similar circumstances would have provided. Pub. Health Law § 2805-d(1). To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury. Pirri-Logan v. Pearl, 192 AD3d 1149 [2d Dept. 2021]; Many v. Lossef, 190 AD3d 721 [2d Dept. 2021].

In order to meet its burden for dismissal of a lack of informed consent cause of action, a defendant is required to establish either that the practitioner "disclose[d] the risks, benefits and alternatives to the procedure or treatment that a reasonable practitioner would have disclosed" or that "a reasonable person in the plaintiff's position, fully informed, would have elected . . . to undergo the procedure or treatment." Rivera v. Albany Med. Ctr. Hosp., 119 AD3d 1135, 1138 [3d Dept. 2014] citing Orphan v. Pilnik, 15 NY3d 907, 908 [2010].

The Plaintiffs and Defendants both move for summary judgment as to the lack of informed consent claim. In this case, there is no factual dispute in that the parties agree that Dr. Rinaldi did not have a discussion with Mr. Collins as to the risks of chiropractic treatment through the use of a Y-Strap. The issue, however, turns on the question of what, if any, risks, benefits and alternatives would a reasonable practitioner have disclosed to Mr. Collins prior to performing a Y-Strap adjustment. Defendants contend that a reasonable practitioner would not have such a conversation as the treatment did not have any reasonably foreseeable risks. On the other hand, Plaintiffs' expert states that a reasonable practitioner would have had an informed consent discussion as there are injuries that can occur during chiropractic adjustment, including trauma to the brain and/or spinal cord. Similarly, as discussed above, the parties' experts differ as causation. Therefore, there are material issues of fact which cannot be resolved by summary judgment motion and the motions of Defendants and Plaintiffs as to informed consent are denied. Alvarez, supra.

Frye Hearing

The defense further requests that, in the event its summary judgment motion is denied, the Court hold a Frye Hearing in order to determine whether the chiropractic treatment at issue could cause Plaintiff's subdural hematoma. The Frye test may be applied "to assess the reliability of an expert's theory of causation in a particular case." Lugo v. New York City Health & Hosps. Corp., 89 AD3d 42, 57 [2d Dept. 2011]). Of note, " 'Frye is not concerned with the reliability of a certain expert's conclusions, but instead with whether the [expert's] deductions are based on principles that are sufficiently established to have gained general acceptance as reliable.' " Lipschitz v. Stein, 65 AD3d 573, 576 [2d Dept. 2009] quoting Nonnon v. City of New York, 32 AD3d 91, 103 [1st Dept. 2006], affd 9 NY3d 825 [2007]. As the party seeking a Frye hearing, Defendants bear the initial burden of showing that there is a question as to whether an expert's methodologies or deductions are based upon principles that are sufficiently established to have gained acceptance as reliable. People v. Oddone, 89 AD3d 868 [2d Dept 2011]. Competing expert theories as to causation or the mechanism of an injury do not warrant a Frye hearing, but entails a weighing of the evidence that falls within the domain of the jury. See Frye v. Montefiore Med. Ctr., 70 AD3d 15 [1st Dept. 2009].

The concept of rapid acceleration and deceleration of the brain in the skull as a cause of subdural hematoma is not a novel medical theory. See e.g., People v. Thomas, 46 Misc 3d 945 [West. Cty. Ct. 2014]. That is what Plaintiffs allege in this case. Plaintiffs maintain that Mr. Collins sustained a brain injury when Dr. Rinaldi performed a chiropractic adjustment with excessive force while using a Y-Strap device. Plaintiffs' experts provide support for their conclusions. "Deduction, extrapolation, drawing inferences from existing data, and analysis are not novel methodologies and are accepted stages of the scientific process." Ratner v. McNeil-PPC, Inc., 91 AD3d 74 [ 2d Dept. 2011]. Plaintiffs' experts' theory of medical causation in this case is based upon more than theoretical speculation or a scientific "hunch." Id.; see Zito v. Zabarsky, 28 AD3d 42, 46 [2d Dept. 2006] ("The fact that there was no textual authority directly on point to support the experts' opinion is relevant only to the weight to be given the testimony, but does not preclude its admissibility. The plaintiff's experts 'set forth other scientific evidence based on accepted principles showing such a causal link.' ").

For their part, Defendants claim there are no documented injuries of the kind asserted here and that the utilization of a Y-Strap device cannot cause such an injury. Whether the use of a Y-Strap can provide the force necessary to cause the injury alleged here is a question for the trier of fact. The jury will hear from these experts, including the evidence that each one relies upon in forming the basis for their expert opinion, and the jury will then evaluate the weight and credibility of the testimony of these experts. Cassano v. Hagstrom, 5 NY2d 643 [1959]. Thus, the application is denied. Krackmalnik v. Maimonides Med. Ctr., 142 AD3d 1143, 1144 [2d Dept. 2016].

Dismissal of Defendants' First Affirmative Defense

Defendants' answer contains an affirmative defense which alleges "that any damage or damages sustained by the plaintiff herein was not caused by any negligence or carelessness on the part of these answering defendants, defendants' servants, agents or employees, but was caused solely by the negligence and carelessness of the plaintiff or others who rendered care and treatment to plaintiff, who may not have timely or properly treated plaintiff." Plaintiff seeks dismissal of this affirmative defense contending that there is no evidence to support this claim. This application is granted as unopposed except to the extent that the Court will permit testimony as to an alleged fall in the shower by Plaintiff.

The Court has considered the additional contentions of the parties not specifically addressed herein and finds them unavailing. To the extent any relief requested by either party was not addressed by the Court, it is hereby denied. Now, therefore, it is hereby

ORDERED that Defendants' motion for summary judgment is denied; and it is further

ORDERED that Plaintiffs' cross-motion is denied in part and granted in parted as discussed herein.

The foregoing constitutes the Decision and Order of the Court.

Dated: June 23, 2023

Poughkeepsie, New York

_______________________________

CHRISTI J. ACKER

JUSTICE OF THE SUPREME COURT

FOOTNOTES

1.   Plaintiff Vincent Collins sought care from the Defendants. The claim of his wife, Plaintiff Cathleen Collins, is derivative. This decision may sometimes refer to Vincent Collins individually as "Plaintiff."

2.   Dr. Rinaldi is an employee of Integrative Health.

3.   Defendants submitted a Statement of Material Facts in compliance with Uniform Court Rule § 202.8-g(a) and Plaintiffs submitted a counterstatement in response thereto. The following facts have either been admitted or were not specifically controverted. In some circumstances, the Court has reviewed the transcripts of the Examinations Before Trial or the medical records to confirm facts which may have been disputed.

4.   The CT head imaging report states the acute subdural hematoma was "left frontoparietal" but the operative report states a "right frontal cerebellar hematoma." The parties agree the subdural hematoma was on the right.

5.   The images were intended to aid the Court in understanding the use of a Y-Axis Traction Strap device and do not depict the Plaintiff.

6.   These alleged departures are contained in Plaintiffs' Bill of Particulars.

Christi J. Acker, J.