Opinion
6817 Index 302925/09
06-07-2018
David STERNBERG, et al., Plaintiffs–Respondents, v. Dr. Elena RUGOVA, et al., Defendants, Dr. M. Mehdi Kazmi, et al., Defendants–Appellants.
Brown, Gruttadaro, Gaujean, Prato & Sastow, PLLC, White Plains (Joan Ruddy of counsel), for Dr. M. Mehdi Kazmi and Regional Neurological Associates, P.C, appellants. Keller, O'Reilly & Watson P.C., Woodbury (Clifford B. Keller of counsel), for The New York Presbyterian Hospital and Dr. Joseph Safdieh, appellants. Ronemus & Vilensky, Garden City (Lisa M. Comeau of counsel), for respondents.
Brown, Gruttadaro, Gaujean, Prato & Sastow, PLLC, White Plains (Joan Ruddy of counsel), for Dr. M. Mehdi Kazmi and Regional Neurological Associates, P.C, appellants.
Keller, O'Reilly & Watson P.C., Woodbury (Clifford B. Keller of counsel), for The New York Presbyterian Hospital and Dr. Joseph Safdieh, appellants.
Ronemus & Vilensky, Garden City (Lisa M. Comeau of counsel), for respondents.
Renwick, J.P., Richter, Webber, Kern, Moulton, JJ.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered February 8, 2017, which, insofar as appealed from as limited by the briefs, denied defendants Regional Neurological Associates, P.C. and Dr. M. Mehdi Kazmi's (the Kazmi defendants) and The New York Presbyterian Hospital and Dr. Joseph Safdieh's (the Safdieh defendants) motions for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment accordingly.
The Kazmi defendants established prima facie that they did not depart from good and accepted medical practice in failing to diagnose plaintiff David Sternberg (the patient) with a thoracic meningioma, through their expert opinion, based on the symptoms presented, and particularly the absence of complaints of leg weakness or bladder symptoms, that "[t]here was no clinical indication ... to order imaging studies of the thoracic spine to investigate the presence of a thoracic meningioma." Although the patient complained of urinary symptoms during one phone call, he added that they had "resolved completely" since he had decreased his pain medication, and he declined to follow Kazmi's recommendation of admission to the hospital for further testing.
Plaintiffs' expert affirmation in opposition was insufficient to raise any material issues of fact (see Anyie B. v. Bronx Lebanon Hosp., 128 A.D.3d 1, 3, 5 N.Y.S.3d 92 [1st Dept. 2015] ). The expert failed to address Kazmi's actual conduct, instead improperly grouping him with the other defendants (see Tsitrin v. New York Community Hosp., 154 A.D.3d 994, 996, 62 N.Y.S.3d 506 [2d Dept. 2017] ). He also misstated the record, opining that thoracic studies were indicated by several symptoms, including positive Romberg sign, position sense, leg weakness, and rib pain, that the patient never mentioned to Kazmi (see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002] ; Ramirez v. Columbia–Presbyterian Med. Ctr., 16 A.D.3d 238, 790 N.Y.S.2d 606 [1st Dept. 2005] ). In addition, he failed to address the Kazmi defendants' expert's opinion about the significance of the absence of certain complaints (see Abalola v. Flower Hosp., 44 A.D.3d 522, 843 N.Y.S.2d 615 [1st Dept. 2007] ).
The Safdieh defendants established prima facie that they did not depart from good and accepted medical practice through an expert opinion similar to the Kazmi defendants' expert opinion, based on the symptoms presented, and particularly the absence of complaints of leg weakness or bladder symptoms, that "there was no clinical indication ... to order radiological imaging of the thoracic spine to investigate the presence of a thoracic meningioma." The expert also opined that Safdieh's "working diagnosis of peripheral neuropathy and his work-up and treatment were reasonable and in accordance with accepted standards of medical care." Although he acknowledged that plaintiffs reported leg weakness in the patient in their final communication with Safdieh, the expert opined that Safdieh's response to this information—to await a scheduled second opinion before taking further action—was appropriate.
Plaintiffs' expert affirmation in opposition was insufficient to raise any material issues of fact. The expert failed to address the Safdieh defendants' expert's opinion about the significance of the absence of certain complaints or the reasonableness of Safdieh's working diagnosis (see Abalola, 44 A.D.3d at 522, 843 N.Y.S.2d 615 ; see also Rivera v. Greenstein, 79 A.D.3d 564, 568–569, 914 N.Y.S.2d 94 [1st Dept. 2010] ). His opinion about Safdieh's conduct was also unsupported by the record (see Diaz, 99 N.Y.2d at 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 ; Wong v. Goldbaum, 23 A.D.3d 277, 279–280, 805 N.Y.S.2d 47 [1st Dept. 2005] ). The expert opined that the patient's complaints of rib pain and leg weakness should have prompted Safdieh to order thoracic imaging studies in September 2007. However, the patient did not complain of leg weakness until the following month.