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Julia COLLARD and Allison Collard, Plaintiffs, v. Katherine ROWAN, M.D., Karen Friedman, M.D., Peter Hollis, M.D., Hoorbod Delshadfar, D.O., Khurram Nazir, M.D., S. Murthy Vishnubhakat, M.D., North Shore University Hospital, and North Shore Long-Island Jewish Health System, Inc., Defendants.
Upon the following papers read on these e-filed motions for summary judgment: Notice of Motion and supporting papers by defendants Rowan, Friedman, Hollis, Nazir, Vishnubhakat, North Shore University Hospital, and Northwell Health, Inc., dated July 25, 2019, and by defendant Delshadfar, dated July 31, 2019; Answering Affidavits and supporting papers by plaintiff, dated October 15, 2019; and Replying Affidavits and supporting papers by defendants Rowan, Friedman, Hollis, Nazir, Vishnubhakat, North Shore University Hospital and Northwell Health, Inc., dated November 11, 2019, it is
ORDERED that the motion (seq. 002) by defendants Katherine Rowan, M.D., Karen Friedman, M.D., Peter Hollis, M.D., Khurram Nazir, M.D., S. Murthy Vishnubhakat M.D., North Shore University Hospital (NSUH), and Northwell Health, Inc., and the motion (seq. 003) by defendant Hoorbod Delshadfar, D.O., are consolidated for the purposes of this determination; and it is further
ORDERED that the motion (seq. 002) by Dr. Rowan, Dr. Friedman, Dr. Hollis, Dr. Nazir and Dr. Vishnubhakat, NSUH, and Northwell Health, Inc., for summary judgment dismissing the complaint against them, is granted as to Drs. Rowan, Friedman, Hollis, Nazir and Vishnubhakat; as to NSUH and Northwell Health, Inc., is granted only to the extent indicated herein; and as to NSUH and Northwell Health, Inc., is otherwise is denied; and it is further
ORDERED that the motion (seq. 003) by Dr. Delshadfar for summary judgment dismissing the complaint against him is denied.
This is an action to recover damages for injuries allegedly sustained by plaintiff Julia Collard as a result of alleged medical malpractice by defendants Katherine Rowan, M.D., Karen Friedman, M.D., Peter Hollis, M.D., Khurram Nazir, M.D., Hoorbod Delshadfar, D.O., S. Murthy Vishnubhakat, M.D., North Shore University Hospital (NSUH) and Northwell Health, Inc., formerly known as North Shore-Long Island Jewish Health Systems, Inc. and sued as North Shore-University Hospital Long Island Jewish Health System, Inc. The medical malpractice allegedly took place from May 10, 2014 through June 17, 2014 at NSUH. Plaintiffs allege, through their complaint and as amplified in their bill of particulars, plaintiffs allege that defendants were negligent in, among other things, failing to diagnose and treat plaintiff Julia Collard's worsening and progressive chronic inflammatory demyelinating polyneuropathy (CIDP), in failing properly to coordinate her care and treatment, in failing to obtain and refer her for consultations with appropriate specialists and in delaying appropriate care and treatment for the condition from which she was suffering. Plaintiff's husband, Allison Collard, sues derivatively for loss of his wife's services.
The facts of this case, albeit subject to some dispute, can be summarized as follows: Despite her age and a number of ailments — including rheumatoid arthritis, asthma, spinal herniations, hypertension and a 2012 complaint of tingling in her feet — plaintiff Julia Collard had remained active, continuing to play golf until a fall at her Florida home in late February of 2014 1 . On May 10, 2014, plaintiff again fell, this time at her home on Long Island 2 . She was transported by ambulance to NSUH, where an x-ray showed that she had sustained a left distal femur fracture. On May 11, 2014, Dr. Rowan, at the time a first-year internal medicine intern, examined plaintiff. Plaintiff exhibited hyponatremia, a femur fracture and paresthesia and weakness of both legs. Plaintiff was scheduled to undergo an open reduction and internal fixation (ORIF) of her distal femur fracture on May 13, 2014. Following her examination by Dr. Rowan, plaintiff was examined by an attending hospitalist, Dr. Anandan.
Plaintiff was examined by a neurosurgery resident for bilateral leg paresthesia on May 11, 2014 and again on May 12, 2014. She was also examined by a neurosurgeon, Dr. Hollis, on May 12. Plaintiff was reported to be exhibiting lower and upper extremity motor strength of 5/5 bilaterally, a positive Babinski reflex and a long tract sign. That same day, she was again examined by Dr. Rowan and by another attending hospitalist, Dr. Friedman. On May 13, 2014, plaintiff was again examined by a neurosurgery resident, who reported that the MRI of plaintiff's cervical and lumbar spine was not indicative of neurosurgical contraindications to the planned procedure. That same day, Dr. Mostafavi performed an ORIF of plaintiff's left femur. On May 21, 2014, orthopedics reported plaintiff without complaints. On May 22, 2014, plaintiff was discharged from NSUH to Northwell Stern Family Center for Rehabilitation (“Stern”).
Mrs. Collard initially made slow progress at Stern, but then her condition changed. By June 9, 2014, her condition had worsened to the extent that her geriatric attending physician asked to review her spinal MRIs. Two days later, the same physician wrote:
Called to see patient by PT for worsening functional status. Patient's difficulty raising her legs. The physical examination of the lower extremity shows 2/5 bilateral proximal and 4/5 bilateral distal, upper extremities 5/5. MRI of cervical spine DJD (which indicates degenerative disc disease).
A consultation with neurology was requested, and a repeat MRI of Mrs. Collard's lumbar and cervical spinal regions was suggested. The next day, June 12, 2014, as a result of the concerns over her declining condition, including “a significant decrease in bilateral motor strength on bilateral lower extremities” and “proximal weakness in the muscles of the upper leg, right worse than left,” Mrs. Collard was sent to NSUH for evaluation in the emergency room. The corresponding transfer note recited “[l]eg weakness-worsening. History of 72 [sic] year old white female status post distal periprosthetic fracture (PMB) Now with worsening lower extremity weakness. Needs neurologic evaluation EMG, MRI spine.”
Mrs. Collard was readmitted to NSUH under the care of Dr. Delshadfar, an internist. A series of consultations was ordered, including a neurology consultation. That same day, a neurology resident, Dr. Hema Gajula, examined Mrs. Collard. Dr. Gajula found severe bilateral proximal muscle weakness in Mrs. Collard's lower extremities — “due to deconditioning vs myelopathy from degenerative disc vs. cord infarct. Cannot rule out GBS,” i.e., Gullain-Barre Syndrome — and recommended that MRI examination of her thoracic and lumbosacral spine be performed. The following morning, the attending neurologist, Dr. Chilvana Patel, reviewed and noted her agreement with Dr. Gajula's “assessment and plan of care” for Mrs. Collard and cross-referenced her own “Neuro attending Note,” which she had entered at the same time — 9:30 am - in the Progress Notes section of Mrs. Collard's hospitalization chart. That latter note, among other things, recommended a lumbo-sacral MRI and EMG/NCS testing “to determine severity of neuropathy vs. lumbo sacral radiculopathy.” The next day, June 14, 2014, plaintiff was again evaluated by Dr. Patel. The MRI of plaintiff's thoracic spine revealed no abnormal intrinsic cord signal, spinal cord compression, spinal canal stenosis or neural foraminal narrowing. The MRI of plaintiff's lumbar spine revealed only mild multi-level degenerative changes. Dr. Gajula and Dr. Patel followed up with plaintiff again on June 16, 2014.
On June 17, 2014, electromyogram/nerve conduction velocity (EMG/NCV) testing was performed by Dr. Nazir and supervised and interpreted by Dr. Vishnubhakat.3 Their preliminary report of the EMG/NCS was of results “consistent [with] distal axonal neuropathy in [both] legs. No signs of plexopathy.” Their final report stated that the study “showed] evidence of “severe sensorineural axonal length dependent neuropathy. There is no evidence of Femoral Neuropathy,” concluding with the cautionary prescription, that “[c]linical correlation is advised.”
A progress note made by Dr. Ciardullo, another NSUH neurologist, also on June 17, 2014, after Dr. Nazir's and Dr. Vishnubhakat's preliminary EMG/NCV findings were reported, acknowledged the uncertainty surrounding the ultimate diagnosis of the cause of Mrs. Collard's lower extremity weakness and the need for further evaluation. Under “A/P” — i.e., “assessment and plan” — Dr. Ciardullo noted that Mrs. Collard had been admitted with bilateral lower extremity “weakness of unclear etiology,” that the “preliminary EMG/NC shows distal axonal neuropathy, and failed to reveal plexopathy,” that the “[d]ifferential [diagnosis] includes either increase of preexisting neuropathy vs disuse atrophy from deconditioning,” and that there is to be “F/U” — i.e., “follow up” — “with outpatient neurologist”4 . Later that day, Dr. Patel noted her agreement with Dr. Ciardullo's assessment and plan and added that she had spent a total of 30 minutes “counseling and coordinating care regarding [right] leg weakness” and had discussed it with the nurse practitioner and patient. The extensive discharge and care plan for plaintiff, however, contained no reference to an outpatient or any other neurological follow up for Mrs. Collard of any kind, and — her condition unchanged — Mrs. Collard was discharged for rehabilitation to The Tuttle Center on June 17, 2014. Thus, although the discharge and care plan included a variety of medications and follow-up consultations prescribed to address the various co-morbidities from which Mrs. Collard suffered, including asthma, hyponatremia, hypertension and rheumatoid arthritis, and instructed that her fractured hip was to be regarded as non-weight-bearing pending a two-week follow up with Dr. Mostafavi (the orthopedist who performed the ORIF on Mrs. Collard's fractured left hip in May), the only direction with respect to the weakness of her lower limbs was “seen by OT/PT and participate in therapy to improve functional status.”
The weakness in Mrs. Collard's lower limbs persisted at Tuttle. On June 25, 2014, still at Tuttle, she was found unresponsive in her bed and was taken by ambulance to St. Francis Hospital, where she was found to be suffering from “profound” hypoglycemia and severe hypothermia, possibly the result of an erroneous administration of insulin or Glucophage 5 . Mrs. Collard remained at St. Francis until June 30, 2014, when she was discharged and transported by ambulance to Cold Springs Hills Center for Nursing and Rehabilitation with a final diagnosis of idiopathic hypoglycemia and a secondary diagnosis of osteoarthritis and hypertension 6 , along with directions to receive magnesium injections for hypomagnesemia.
Mrs. Collard's condition did not improve at Cold Springs Hills. Distressed by his wife's lack of progress, her declining condition and the pain she was suffering, on July 23, 2014, Allison Collard had his wife transported to New York-Presbyterian Hospital in Manhattan, where she was examined by Dr. Michael Rubin, a neurologist and electrophysiologist. The following day, July 24, 2014, EMG/NCS studies and spinal MRIs were performed on plaintiff. The results of the EMG/NCS studies were consistent with CIDP, and a lumbar puncture, or spinal tap, was performed, the results of which confirmed the diagnosis of CIDP. Treatment with intravenous immunoglobulin was begun and continued through 2016.
Dr. Rowan, Dr. Friedman, Dr. Hollis, Dr. Nazir, Dr. Vishnubhakat, NSUH and Northwell Health, Inc., now move for summary judgment dismissing the complaint against them. They argue, in part, that the treatment rendered by Dr. Rowan, Dr. Friedman, Dr. Hollis, Dr. Nazir and Dr. Vishnubhakat and by the staff of NSUH did not depart from good and accepted standards of medical practice. They also argue that Northwell Health, Inc., cannot be held liable for the alleged malpractice of NSUH, because it did not provide any medical care to plaintiff. In support of their motion, they submit, among other things, the affirmations of their experts, the transcripts of the deposition testimony of plaintiffs and defendant doctors, and various medical records. In opposition, plaintiffs contend, in part, that NSUH and Northwell Health, Inc., departed from good and accepted medical practice. In support of their opposition, plaintiffs submit, among other things, a redacted affirmation of their expert.
Dr. Delshadfar also moves for summary judgment dismissing the complaint against him. He contends, in part, that he did not depart from the applicable standard of care in his treatment of plaintiff. In support of his motion, he submits, among other things, the affirmation of his expert, the transcripts of the deposition testimony of defendant doctors and various medical records.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 ; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 87 NYS2d 316 ). The movant has the initial burden of proving entitlement to summary judgment (see Vega v. Restani Constr. Corp., 18 NY3d 499, 942 NYS2d 13 ; Winegrad v. New York Univ. Med. Ctr., supra). Once the movant demonstrates a prima facie entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Vega v. Restani Constr. Corp., supra; Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 ; see also CPLR 3212 [b]). The failure to make a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Vega v. Restani Constr. Corp., supra; Winegrad v. New York Univ. Med. Ctr., supra). In deciding the motion, the court must view all evidence in the light most favorable to the nonmoving party (see Matter of New York City Asbestos Litig., 33 NY3d 20, 99 NYS3d 734 ; Vega v. Restani Constr. Corp., supra).
To establish the liability of a physician in a medical malpractice case, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such a deviation or departure was a proximate cause of the plaintiff's injuries (see Mehtvin v. Ravi, 180 AD3d 661 [2d Dept 2020]; Oliver v. New York City Health & Hosps. Corp., 178 AD3d 1057, 115 NYS3d 433 [2d Dept 2019]; Yanchynska v. Wertkin, 178 AD3d 1122, 115 NYS3d 84 [2d Dept 2019]). A defendant moving for summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not deviate or depart from the accepted standard of care, or that any alleged deviation or departure was not a proximate cause of the plaintiff's injuries (see Rosenthal v. Alexander, 180 AD3d 826 [2d Dept 2020]; Yanchynska v. Wertkin, supra; Keane v. Dayani, 178 AD3d 797, 114 NYS3d 93 [2d Dept 2019]). Once a defendant has made such a prima facie showing, the burden shifts to plaintiff to raise a triable issue of fact regarding only the element or the elements on which the defendant met its prima facie burden (see Kogan v. Bizekis, 180 AD3d 659, 115 NYS3d 690 [2d Dept 2020]; Keane v. Dayani, supra; Anonymous v. Gleason, 175 AD3d 614, 106 NYS3d 353 [2d Dept 2019]). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence or where there are issues of credibility (see Chimbo v. Bolivar, 142 AD3d 944, 37 NYS3d 339 [2d Dept 2016]; Benetatos v. Comerford, 78 AD3d 730, 911 NYS2d 155 [2d Dept 2010]), and summary judgment will not be awarded in a medical malpractice action where the parties adduce conflicting medical expert opinion (see Mehtvin v. Ravi, supra; Gentile v. Malihan, 179 AD3d 902, 2020 NY Slip Op 00405 [2d Dept 2020]; Yanchynska v. Wertkin, supra).
Under the doctrine of respondeat superior, a hospital generally may be held liable for the alleged malpractice of its employees acting within the scope of employment (see Fuessel v. Chin, 179 AD3d 899, 2020 NY Slip Op 00404 [2d Dept 2020]; Cynamon v. Mount Sinai Hosp., 163 AD3d 923, 81 NYS3d 520 [2d Dept 2018]; Seiden v. Sonstein, 127 AD3d 1158, 7 NYS3d 565 [2d Dept 2015]). To establish its entitlement to summary judgment dismissing a claim of vicarious liability, a hospital must address and rebut any such allegations contained in the complaint and the bill of particulars (see Mitchell v. Goncalves, 179 AD3d 787, 2020 NY Slip Op 00268 [2d Dept 2020]; Sheppard v. Brookhaven Mem. Hosp. Med. Ctr., 171 AD3d 1234, 98 NYS3d 629 [2d Dept 2019]). Absent such a prima facie showing, the hospital must establish that its employee was not negligent, or that the employee's negligence was not a proximate cause of the plaintiff's injuries (see Mitchell v. Goncalves, supra; Dupree v. Westchester County Health Care Corp., 164 AD3d 1211, 84 NYS3d 176 [2d Dept 2018];Lormel v. Macura, 113 AD3d 734, 979 NYS2d 345 [2d Dept 2014]).7
With respect to plaintiff Julia Collard's hospitalization and treatment at NSUH in May 2014, NSUH, Northwell Health, Inc. and those individual defendants who treated her in the course of that hospitalization only — Drs. Rowan, Friedman and Hollis — have, through the affirmations of their experts, established prima facie entitlement to summary judgment dismissing the claims for medical malpractice against them. They have established, prima facie, that they did not depart from accepted standard of care in their treatment of plaintiff (see Grasso v. Nassau County, 180 AD3d 1008[2d Dept 2020];Kovacic v. Griffin, 170 AD3d 1143, 96 NYS3d 677 [2d Dept 2019]; Keane v. Dayani, supra).
Malcolm Phillips, M.D. states that he has reviewed, among other things, plaintiffs' bill of particulars and various medical records and that in his opinion, Dr. Rowan and Dr. Friedman did not depart or deviate from good and accepted medical practice in the care they rendered to Julia Collard during her May 2014 hospitalization and treatment at NSUH. Dr. Phillips explains the plaintiff was admitted to internal medicine at NSUH on May 10, 2014 to monitor and to treat her hyponatremia prior to the planned ORIF of her distal femur fracture. He opines that a neurosurgery consultation appropriately was ordered to ensure that plaintiff exhibited no acute neurological issues and that there were no contradictions to the scheduled ORIF. Dr. Phillips explains that the MRI examinations performed on plaintiff were negative for an acute neurosurgical condition and that neurosurgery concluded that neurosurgical intervention was not warranted. He opines that a neurology consultation was not warranted because the more pressing issue was Mrs. Collard's acute hip fracture and it was reported that she would be visiting a neurologist in the near future.
Nirit Weiss, M.D., states that she has reviewed, among other things, the bill of particulars, various medical records and the transcript of the deposition testimony of Dr. Hollis and opines that Dr. Hollis did not depart or deviate from good and accepted medical and neurosurgical practice. In Dr. Weiss's opinion, there was no reason for Dr. Hollis to suspect CIDP. Dr. Weiss explains that the findings from Dr. Hollis' exam on plaintiff were not indicative of CIDP. She further explains that plaintiff's increased reflexes were inconsistent with CIDP, as a patient with CIDP typically presents with decreased reflexes. Dr. Weiss opines that the plan by neurosurgery to perform MRI examinations to evaluate for a spinal or cord lesion or acute compression was appropriate, because plaintiff exhibited hyperreflexia and long tract signs. She further opines that neurosurgery had no obligation to work up or care for plaintiff's paresthesia because the studies performed were negative for acute neurosurgical conditions.
Finally, with respect to Mrs. Collard's care and treatment at NSUH in May 2014, David Simpson, M.D. states that he has reviewed, among other things, the bill of particulars and various medical records, and he opines that with respect to that admission, NSUH did not depart or deviate from good and accepted medical practice. He explains that in light of plaintiff's acute need to undergo hip fracture surgery and the indication that she had been planning to see a local neurologist “in the near future” for recently worsening tingling and numbness in her legs, the neurological consultation was appropriate and that her then expressed neurological complaints were appropriately recognized and documented during that hospitalization. Dr. Simpson further explains that the findings of the examination by neurosurgery were inconsistent with any demyelinating process. The findings on the array of MRI scans, the post-operative examinations by orthopedics, and the documentation indicating that Mrs. Collard was planning to be seen by an outside neurologist allegedly did not indicate a need for further neurological work-up in the inpatient setting.
To defeat defendant's prima facie showing with respect to the care and treatment Mrs. Collard received during her hospitalization at NSUH in May 2014, plaintiffs were required to raise a triable issue of fact as to whether defendant doctors and NSUH departed from the applicable standard of care (see Keane v. Dayani, supra; Omane v. Sambaziotis, 150 AD3d 1126, 55 NYS3d 345 [2d Dept 2017]; DeGiorgio v. Racanelli, 136 AD3d 734, 25 NYS3d 282 [2d Dept 2016]). Plaintiffs, however, have offered no response to the moving defendants' threshold showing that the care and treatment provided to Mrs. Collard in May 2014 at NSUH complied with the applicable standard of medical care. Accordingly, the motions for summary judgment on behalf of Drs. Rowan, Friedman and Hollis and so much of NSUH and Northwell Health Inc.'s motions as are directed to the May 2014 hospitalization must be granted.
The motion of Drs. Nazir and Vishnubhakat, whose involvement in Mrs. Collard's care was limited to her June 2014 NSUH hospitalization, must also be granted. The sole role of Drs. Nazir and Vishnubhakat in connection with Mrs. Collard's care and treatment was to perform the June 17, 2014 electromyogram/nerve conduction velocity study of Mrs. Collard that was called for by Drs. Gajula and Patel and ordered by Dr. Delshadfar and to interpret and report the results of that study. Dr. Simpson, in his affirmation, opines that the EMG/NCV study was properly interpreted and reported by Drs. Nazir and Vishnubhakat, and plaintiffs offer nothing to contradict that opinion or that raises any issue of fact with respect to its predicate. They do, however, dispute Dr. Simpson's opinion, and that of Dr. Delshadfar's expert, Dr. Arthur Patrick Grollman, that the conclusion of the NSUH neurology team and of Mrs. Collard's attending physician, Dr. Delshadfar, that Mrs. Collard's profound bilateral lower extremity weakness — which arose suddenly, after she had otherwise been making progress in her post-surgical physical therapy and rendered her unable to ambulate or even to raise her legs more than a few inches — was secondary to peripheral neuropathy and deconditioning and their decision to discharge Mrs. Collard to a nursing home for physical rehabilitation without any further neurological testing or follow up at NSUH to determine the full extent and underlying cause of her condition or any order or direction prescription for further neurological testing or treatment following discharge was consistent with the applicable standard of care. In opposition, plaintiffs offer the opinion of their expert neurologist that a lumbar puncture, or spinal tap, to rule out Guillain-Barre Syndrome — the alternative differential diagnosis initially posited by Dr. Gajula, and acknowledged by Dr. Patel, when Mrs. Collard received her first neurological evaluation at NSUH — was called for and would have revealed the elevated spinal fluid protein levels indicative of an inflammatory peripheral neuropathy, thereby affording Mrs. Collard a substantial chance for a better outcome through the earlier diagnosis and treatment of the CIDP from which she was suffering. However, not only was no spinal tap or other testing ordered following the EMG/NCV, but according to the June 17, 2014 discharge and care plan and the testimony of both plaintiffs 8 , Mrs. Collard was discharged to a nursing home for physical and occupational therapy with follow up only by an orthopedist for the fracture of her left hip, with a rheumatologist for her rheumatoid arthritis and with a urologist for cystoscopy to monitor an apparently nonmalignant bladder mass. Indeed, when asked, at his deposition, if, based upon the conclusion stated in his and Dr. Nazir's June 17, 2014 “EMG/NCV Report,” the standard of care by the treating neurologist would “indicate a medical workup in order to further evaluate the condition” from which the patient was suffering, Dr. Vishnubhakat answered in the affirmative 9 and, upon further questioning, opined, as a practicing neurologist and to a reasonable degree of medical certainty, that the workup indicated for those findings would have been “Extensive studies. You have to figure out tons of causes that can do that,” and that the medical workup so indicated would have included
CBC, blood chemistry, immunoelectrophoresis, sedimentation rate, CRP, vitamin B-12, B-1, B-6 levels, look for diabetes, hemoglobin Alc, look for paraneoplastic antibodies.
I mean, I can go on and on, because this depends upon the neurologist. He has to decide what he or she wants to do. The information is clear. You decide. They're neurologists. They know how to do it.
Even assuming that the affirmations of Drs. Simpson and Grollman and the other materials submitted in support are sufficient 10 to establish prima facie entitlement to summary judgment in favor of Dr. Delshafdar, NSUH and North Shore Health, Inc., shifting to plaintiffs the burden to submit admissible evidence raising a triable issue of fact (see Williams v. Bayley Seton Hosp., 112 AD3d 917, 918, 977 NYS2d 395, 397 [2d Dept 2013]; Makinen v. Torelli, AD3d 782, 965 NYS2d 529 [2d Dept 2013]; Stukas v. Streiter, 83 AD3d 18, 23, 918 NYS2d 176, 180 [2d Dept 2011]), the affirmation of plaintiffs' expert neurologist, the testimony of Dr. Vishnubhakat, plaintiffs' deposition testimony and the records of Mrs. Collard's June 2014 NSUH hospitalization — especially when the evidence is viewed, as it must be, in the light most favorable to plaintiffs, the nonmoving parties (see Matter of New York City Asbestos Litig., supra; Vega v. Restani Constr. Corp., supra) — together raise triable issues of fact with respect to the alleged failure properly to treat and diagnose Mrs. Collard's condition during that hospitalization and to provide proper and sufficient direction for her care and treatment upon her discharge (see generally Schmitt v. Medford Kidney Ctr., 121 AD3d 1088, 996 NYS2d 75 [2d Dept 2014]; Matos v. Khan, 119 AD3d 909, 991 NYS2d 83 [2d Dept 2014];Williams v. Bayley Seton Hosp., supra;Stukas v. Streiter, supra). Given the presence of these triable factual issues, an order granting summary judgment in favor of Dr. Delshafdar, NSUH and North Shore Health, Inc. with respect to plaintiffs' claims stemming from Mrs. Collard's June 2014 hospitalization and discharge is not appropriate (see Leto v. Feld, supra; Gressman v. Stephen-Johnson, supra; Moray v. City of Yonkers, supra; McMahon v. Badia, 195 AD2d 445, 600 NYS2d 143 [2d Dept 1993]). In light of the foregoing, Dr. Delshafdar's motion for summary judgment and so much of the motion by NSUH and North Shore Health, Inc. for summary judgment in its favor with respect to plaintiffs' claims related to Mrs. Collard's June 2014 hospitalization and discharge must be denied.
The court has considered the remaining arguments and contentions of the parties and finds that they do not alter the foregoing determinations.
This constitutes the decision and order of the court.
1. Mrs. Collard was hospitalized for several days following that fall, with diagnoses that included a possible tiny right sylvian fissure subarachnoid hemorrhage and traumatic brain injury “likely of a mild complicated severity” with a demonstrated “mild deficit on tasks of executive functioning and working memory.” Problems in Mrs. Collard's gait and balance were also noted during that hospitalization.
2. It is unclear from the record whether this was Mrs. Collard's second or third fall in 2014.
3. Because of her left-side hip fracture, Drs. Nazir and Vishnubhakat did not want to manipulate Mrs. Collard's left leg. Hence, most of the study was conducted on her right-side nerves only.
4. Dr. Ciardullo's June 17, 2014 assessment and plan entry includes the statement that “Patient has outside neurologist] “who has been working her up for [peripheral?] neuropathy. Patient would like to continue to [follow up] with her neurologist,” to which Dr. Patel inserted, parenthetically, “[p]atient had work up done by [outpatient?] neurologist in past as outpatient.” Dr. Ciardullo's assessment and plan ends with the notation “Discussed with patient and team.” Mrs. Collard testified that she had previously been referred to a local neurologist, Dr. Vandana Soni, by her rheumatologist, Dr. Richard Blau, for tingling in her feet in 2013; Mr. Collard, however, placed the first visit in 2012, which is borne out by notations in Dr. Blau's records that refer to Dr. Soni, as well as neurological examination and EMG/NCV study reports from Dr. Soni, dated May 2, 2012, also contained in Dr. Blau's records, which have been made part of the record on the current motions. It does not appear that Mrs. Collard was treating with Dr. Soni at any point in 2014 prior to her hospitalization and treatment for CIDP at New York-Presbyterian Hospital that July — notations in the NSUH records state that she had been “planning” to do so prior to her hospitalization — and both plaintiffs testified that Mrs. Collard was having no difficulty walking prior to her first fall that year. Moreover, both Mr. and Mrs. Collard testified that they were not given any instructions at NSUH to follow up with Dr. Soni or any other neurologist. In any event, except to the extent that reports prepared by Dr. Soni in May 2012 are included in Dr. Blau's records, no other outside, non-hospital neurological records have been offered in connection with the current motions and none are listed among the materials that Dr. Simpson and Dr. Grollman state they reviewed in connection with the rendition of their respective opinions.
5. Mrs. Collard was not diabetic. The episode was a serious one — Mrs. Collard was found unresponsive in her bed, both her blood sugar and her body temperature at life-threateningly low levels.
6. Mrs. Collard's continuing inability to walk and her “trouble lifting legs” was noted at St. Francis, and her spinal MRIs and abdominal-pelvic CT from NSUH were reviewed in connection with a neurological examination of her at St. Francis, with the observation that the MRIs and EMG at NSUH “were not revealing.” It was also noted on examination at St. Francis that in addition to asymmetrical pain-limited hip flexion, Mrs. Collard also exhibited “underlying likely chronic neuropathy. Doubt AIDP/GBS,” but a further neurological work up was specifically excluded, the plan for her further course of treatment calling for the monitoring of her blood sugars and evaluating her for physical therapy and “[r]ehab when medically stable.”
7. Northwell Health, Inc. also moves for summary judgment on the ground, set forth in the supporting affidavit of the Vice President of its Medical Malpractice Program in Corporate Risk Management, a Northwell Health, Inc. employee, that Northwell Health, Inc. is the parent corporation of NSUH; that NSUH is a “separate and distinct” not-for-profit corporation; that “[a]s a corporate entity,” Northwell Health, Inc. “did not provide or render medical care, treatment and/or advice to the plaintiff herein, including during the admissions in question ․”; and that “[a]s a corporate entity ․ Northwell Health, Inc. does not employ the medical professionals including physicians and nurses who provide care and treatment to patients.” Although it is well settled that “in terms of legal responsibility, parent, subsidiary or affiliated corporations are treated separately and independently” (Alexander & Alexander of New York Inc. v. Fritzen, 114 AD2d 814, 815 [1st Dept 1985], affd, 68 NY2d 968 ), and that “[a] parent corporation will not be held liable for the torts or obligations of a subsidiary unless it can be shown that the parent exercised complete dominion and control over the subsidiary” ( Potash v. Port Auth. of New York and New Jersey, 279 AD2d 562, 562 [2d Dept 2001]; see generally Rosenblatt v. City of New York, 55 Misc 3d 1212(A) [Sup Ct Queens County 2017], on a motion for summary judgment, the movant has the initial burden of proving entitlement to summary judgment (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 ), and must show, prima facie that no material and triable issue of fact is presented (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 165 NYS2d 498 ). Thus, the movant must demonstrate its entitlement to summary judgment affirmatively; a movant “fails to satisfy its prima facie burden by merely pointing out gaps in the plaintiff's case” (Blackwell v. Mikevin Mgt. III, LLC, supra, 88 AD3d at 837 [2d Dept 2011], citing Englington Med., P.C. v. Motor Veh. Acc. Indem. Corp., 81 AD3d 223 [2d 2011]; Shafi v. Motta, 73 AD3d 729, 730 [2d 2010]; Doe v. Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 388 ); Salerno v. Bally Total Fitness Corp., 62 Misc 3d 1224(A) [Sup Ct Suffolk County 2019]. The movant's failure to make a prima facie showing will result in the motion's denial, “regardless of the sufficiency of the opposing papers” (Winegrad v. New York Univ. Med. Ctr., supra, 64 NY2d at 852). Inasmuch as Northwell Health, Inc. has failed in its submission to address the plaintiffs' allegations that Northwell Health, Inc. controlled NSUH and its facilities and operations, Northwell Health, Inc.'s motion for summary judgment, to the extent based upon the foregoing contentions, must be denied.
8. Mr. and Mrs. Collard each testified that they were not given any instructions at NSUH for follow up with a neurologist post discharge, and nothing is offered by the moving defendants to show that any such follow up occurred while Mrs. Collard was undergoing rehabilitation at The Tuttle Center.
9. The transcript of Dr. Vishnubhakat's deposition testimony is annexed to the moving papers of both sets of moving defendants.
10. Notably, the affirmations of Drs. Simpson and Grollman do not address plaintiffs' claim, set forth in their Bill of Particulars, that defendants were negligent, among other things, “in choosing not to and/or in failing to obtain and/or refer and/or timely obtain and/or timely refer plaintiff for indicated consultations with appropriate specialists including neurologists ․” (See Pullman v Silverman, 28 NY3d 1060, 1063  (where defendant physicians failed to address allegation in plaintiff's bill of particulars that claimed injury was the result of interaction of two drugs, “defendant failed to meet his prima facie burden” on motion asserting lack of proximate cause and was not entitled to summary judgment.)
Sanford Neil Berland, J.
Response sent, thank you
Docket No: 16-613506
Decided: July 14, 2020
Court: Supreme Court, Suffolk County, New York.
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