Upon the foregoing papers, defendant Edward Golembe, M.D. (Dr. Golembe) cross-moves, pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint.^[FN1]

In this action for medical malpractice, the plaintiff seeks to recover damages arising from the performance, on June 16, 2006, of a mammoplasty (breast reduction) and [*2]the ensuing post-surgical course of treatment.

On April 13, 2006 plaintiff, Caridad Ortiz, (Ortiz) consulted Dr. Golembe, a plastic surgeon, with complaints of upper back, shoulder and neck pain. Plaintiff advised the defendant that after her pregnancies her breast increased in size from C to DDD. They discussed whether she was an appropriate candidate for breast reduction, as the loss of weight resulting from the procedure would relieve pressure to her shoulder and neck. After discussing the risks of the surgery the defendant gave plaintiff a copy of a form, produced by the American Society of Plastic Surgeons, to take home and read. The form, which is annexed as an exhibit to defendant's papers, outlines issues related to the surgery, including alternative treatments, risks, and the possible need for additional surgery. Under the heading "Risks of Reduction Mammoplasty Surgery" there is language warning of possible bleeding, infection, change in sensation, scarring, unsatisfactory results, pain, firmness, asymmetry, and allergic reactions. The reader is advised of the possibility of delayed healing, and that some areas of the breast or nipple region may take a long time to heal requiring frequent dressing changes or further surgery to remove non-healed tissue.

Plaintiff saw Dr. Golembe again on June 7, 2006, at which time she initialed and signed an "Informed Consent-Reduction Mammoplasty" form.

The breast reduction surgery was performed by Dr. Golembe at Brookdale University Hospital and Medical Center (Brookdale) on June 16, 2006. Approximately 1,150 grams of tissue was removed from the right breast, and 1,050 grams from the left breast.

The technique employed preserved the nipple and areola. Plaintiff was discharged from Brookdale on June 19, 2006. According to Dr. Golembe, plaintiff's discharge, which was scheduled for June 17, was delayed due to miscommunication between him and Brookdale's staff. Plaintiff maintains that the unnecessary four-day stay exposed her to hospital borne bacteria and disease, and that the failed attempts by hospital staff to reach Dr. Golembe caused her to feel neglected and upset.

Between June 21, 2006 and August 7, 2006, plaintiff made eight post-operative visits to Dr. Golembe. Plaintiff claims that during this period, although she was advised by Dr. Golembe that she was improving, her condition in fact deteriorated and the incisions began to open. According to the plaintiff, at the first post-operative visit, her bandages were dry, but shortly thereafter, she began experiencing seepage and dehiscence in her right breast that continued to worsen. The wound to her right breast then began to open, soaking her therapeutic sports bra with fluid. According to plaintiff, defendant used gauze to absorb the fluids, and advised her to alternate its use with sanitary napkins.

On August 11, 2006, plaintiff went to the emergency room at Brookdale with a temperature of 99.1 degrees and complaints of dehiscence in both breasts. A culture of the right breast wound was positive for "rare staphylococcus aureus." Plaintiff disputes the accuracy of Dr. Golembe's records, upon which he relies in rejecting her allegations. [*3]

According to Dr. Golembe, on June 21, 2006 no wound problems and a level of sensation which was "excellent" were noted. On June 29, 2006, he noted moderate

serosanguineous drainage from the right horizontal incision, but as the drainage was odorless, no infection was indicated. On July 5, 2006, Dr. Golembe reported superficial bleeding from the right breast incisions, and that he applied silver nitrate to stop the bleeding. On July 13, 2006 he noted a superficial loss of skin, measuring 3.5 centimeters in width. Plaintiff was placed on woven Aquacel silver dressings.^[FN2] On July 20, 2006, Dr. Golembe noted a clean, infection-free, base and discontinued the Aquacel silver dressings in favor of Mepitel, a non-adherent silicone dressing with a fine mesh netting, coated with medical grade silicone gel.

On July 27, 2006, again noting a clean base, Dr. Golembe alternated Aquacel silver dressings and Mepitel, to minimize the bacterial load. On August 3, 2006, he noted that the wound was closing and directed plaintiff to continue with Aquacel silver dressings. At plaintiff's final visit, on August 7, 2006, she advised him that she was moving to Georgia. and Dr. Golembe noted that the wound was clean with a slight separation on the left. Plaintiff did not appear for her scheduled visit on August 21, 2006.

Defendant contends that the photographs that plaintiff testified were taken on August 10, 2006 show a "large superficial right breast wound and that it is granulating with what appears to be islands of epithelization." Defendant notes that records prepared by Dr. Sandra Robinson, who examined plaintiff at Brookdale, made no diagnosis, discharged plaintiff in stable condition with instructions to follow up with Dr. Golembe, and prescribed antibiotic Keflex for 7 days.

Plaintiff, on October 23, 2006, was seen by Dr. Daniel Most, who performed surgery on November 16, 2006 at Northside Hospital in Atlanta, Georgia. The operation involved excision and closure of a left breast wound measuring 3.8 x 1.3 cm, and an excision and closure using local tissue rearrangement of a right breast wound measuring 7.2 x 5.3 cm. Dr. Most noted that prior to seeing him plaintiff had been applying dressings which adhered

to and inflamed the wounds, and that since using Silvadene and gauze, as recommended

by him, the wounds had softened considerably and become less painful. Upon preoperative examination the wounds were superficial and there was no evidence of infection.

Plaintiff commenced this lawsuit on or about August 14, 2007, with the filing of a summons and verified complaint, alleging medical malpractice and lack of informed consent. On or about September 21, 2007 a Verified Answer was served on behalf of Dr. Golembe. Following discovery, plaintiff filed a Note of Issue on or about August 23, 2009. [*4]

Defendant's cross-motion for summary judgment

Dr. Golembe maintains that the record, consisting of deposition testimony, medical records and an expert's affidavit, establishes as a matter of law that there was no departure by him from accepted medical practice in treating the plaintiff, and that plaintiff experienced delayed healing, a known complication of mammoplasty, rather than an infection. In addition, he contends, the record does not support a recovery of damages for lack of informed consent. Dr. Golembe provides the affidavit of Joseph Feinberg, M.D., a board certified, senior attending plastic surgeon at St. Francis Hospital and Assistant Professor of Plastic Surgery at The Weill Cornell Medical Center. Dr. Feinberg affirms that he has performed approximately 1,000 reduction mammoplasties, and that he reviewed pertinent documents, including the records of Dr. Golembe, Brookdale, Dr. Most and Northside Hospital, the plaintiff's bill of particulars, photographs and deposition testimony.

Dr. Feinberg reports that a review of the records reveals that the plaintiff consulted with Dr. Golembe, consented in writing to the procedure, underwent the surgery without complications, post-operatively developed wound healing difficulties, and ultimately left Dr. Golembe's care, despite the request that she return. He opines that plaintiff developed delayed wound healing, a recognized complication, and underwent subsequent surgery, which disclosed no signs of infection. In his opinion the surgery by Dr. Golembe was performed in accordance with the standard of care, whereby Dr. Golembe used a safe technique for the preservation of the nipple and areola, and that the surgical technique was not the proximate cause of any condition complained of by plaintiff.

He avers that the consent forms adequately explain the risks, benefits and alternatives of the procedure, that Dr. Golembe testified that he also explained them to Mrs. Ortiz, and that Mrs. Ortiz testified that she understood the form prior to initialing and signing it.

Dr. Feinberg states that the plaintiff's discharge from the hospital was delayed due to miscommunication between Dr. Golembe and the Brookdale staff and concludes that this was not a departure from the standard of care and was not the proximate cause of any complained of condition. The serosanguineous drainage, superficial bleeding and superficial skin loss which plaintiff experienced are common post-operative mammoplasty issues, and there is no evidence that plaintiff suffered from an infection during the period of post-operative care which concluded on August 7, 2006. In support thereof, Dr. Feinberg refers to the August 10, 2006 photographs of plaintiff's breasts, noting that there is no sign of cellulitis and erythema tracking from the wound edges, as would be present if there was infection. With respect to plaintiff's August 10th visit to Brookdale emergency room, he opines that "[t]he wound was likely only colonized by bacteria and not truly infected," [*5]

and rejects any suggestion that the result of the Brookdale wound culture support the conclusion that as part of his post-operative care Dr. Golembe should have ordered cultures and sensitivities.

In discussing the procedure conducted by Dr. Most, Dr. Feinberg notes that right

and left breast tissue cultures showed no routine growth in seven days and no acid fast bacteria or fungus growth in 43 days. He thus concludes that there is no evidence that plaintiff suffered from an infection at any time in her post-operative course, that she was seen by Dr. Most with non-healing, or delayed healing wounds, and that the wounds were excised and the outcome was "very satisfactory."

Finally, Dr. Feinberg avers that delayed healing is more frequent in the case of a large reduction, that plaintiff's wound dehiscence was made worse by her failure to continue treatment with Dr. Golembe, or to seek treatment from another physician for more than two months.

In opposition, plaintiff challenges the accuracy of Dr. Golembe's records insofar as they purport to reflect her continued improvement, and submits that his records raise factual issues which require resolution by a trier of fact. She supplies her deposition testimony and the affidavit of her expert, a Board Certified Plastic Surgeon who is licenced in the State of Georgia.^[FN3]

The expert affirms that he reviewed "medical records, depositions and other pertinent records and material regarding Caridad Ortiz." The expert opines, with a reasonable degree of medical certainty, that Dr. Golembe's post-operative treatment departed from accepted standards in that he treated plaintiff in the chosen manner for too long a period of time. According to the expert, while it was appropriate to initially treat plaintiff conservatively, Dr. Golembe should have recognized that she was not responding and, therefore, the need for debridement, closing the wound, and possible grafting. In the expert's opinion, this delay in rendering proper treatment resulted in the adherence of the bandages to the wound and increased inflammation, causing plaintiff's emergency room visit in August of 2006 and "signs of infection." The expert concludes that Ms. Ortiz's deteriorating condition called for proactive treatment, such as debridement, closing the wound and possible grafting, and that as a result of the lack of timely treatment plaintiff's skin began to rot, the bandages became intertwined with the wound, and her skin sloughed off. Had appropriate treatment been rendered, remedial surgery would not have been required, and the level of scarring, distortion and asymmetry of her breasts would have been lessened.

In reply, defendant points out that plaintiff fails to address her claims of malpractice relating to performance of the June 16, 2006 surgery and lack of informed consent, and focuses solely on the claim that he did not properly manage her post-operative recovery. As to the latter contention, defendant argues that plaintiff's expert [*6]fails to mention that plaintiff left Dr. Golembe's care after less than two months and did not have medical care from August 10, 2006 until October 23, 2006. He challenges her expert's affidavit on several grounds, including: (1) failure to address Dr. Feinberg's opinion that the course of plaintiff's recovery included common post-operative mammoplasty issues; (2) failure to accurately describe the post-operative treatment rendered by Dr. Golembe, adjustments to which are reflected in the records; and (3) failure to state the applicable standard of care or the departure therefrom. The defendant argues that there is no support for plaintiff's assertion that the delay in treatment resulted in the need for more extensive surgery, and that there is no evidence that plaintiff had an infection, as her expert merely concludes that she had "signs of infection."

"The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted medical practice and evidence that such departure was a proximate cause of injury or damage" (Graham v Mitchell, 37 AD3d 408, 409 [2007]). Thus, "[o]n a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Chance v Felder, 33 AD3d 645, 645 [2006]; see also Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 711 [2007]). In opposition, "the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury. General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment" (Flanagan v Catskill Regional Medical Center, 65 AD3d 563, 565 [2009]).

Relying upon the pre-trial testimony, medical records and affidavit of Dr. Feinberg, defendant fails to demonstrate, prima facie, that there was no departure from accepted standards in the care rendered or that his treatment was not a proximate cause of the complained-of injuries. In response to those portions of plaintiff's bill of particulars which allege that Dr. Golembe negligently performed the reduction mammoplasty, failed to obtain plaintiff's informed consent and failed to prescribe appropriate post-operative wound care, the affirmation of Dr. Feinberg succeeds in making a prima facie showing of no liability.

Dr. Feinberg opines that the surgery was within the standard of care and, addressing the documented course of post-operative treatment, offers that plaintiff's symptoms are common post-operative mammoplasty issues, and that the treatment, discontinued on

August 7, 2006, was appropriate. He specifically rejects any assertion that plaintiff had developed an infection during this period. He opines that while the wound was likely [*7]colonized by bacteria, it was not truly infected.^[FN4] He reports that the photographs of plaintiff do not reflect signs of infection, nor do the records reveal that Dr. Most found infection. Finally, he opines that plaintiff's own failure to continue treatment with Dr. Golembe, or to seek treatment from another physician for over two months, worsened her wound dehiscence.

On the issue of informed consent, defendant also supplies plaintiff's testimony and copies of the Consent for Surgery/Procedure or Treatment Form, initialed and signed by plaintiff on June 7, 2006, as well as the expert opinion of Dr. Feinberg. Accordingly, the burden shifts to plaintiff to raise a material issue of fact sufficient to defeat defendant's cross-motion on these issues.

However, other than in one conclusory sentence, Dr. Feinberg does not address plaintiff's claim that her unnecessary four-day hospital stay — due to Dr. Golembe's failure to sign a discharge order and inability to be reached by hospital staff — exposed her to bacteria and disease. This is of particular significance as the Brookdale wound culture disclosed "rare staphylococcus aureus."^[FN5]

With respect to plaintiff's opposition, as previously noted, plaintiff does not address her informed consent claim or the reduction mammoplasty of June 16, 2006. Accordingly, summary judgment is granted to Dr. Golembe on these claims. Rather, the opposition focuses on the post-operative treatment given.

Where the parties offer conflicting expert opinions, a credibility question is presented requiring a resolution by the trier of fact (see, e.g., Shields v Baktidy, 11 AD3d

671 [2004]). Plaintiff's expert does not dispute, or even address, defendant's contention

that delayed healing is a common occurrence following breast reduction surgery especially when a large amount of tissue is removed. Rather, the plaintiff's expert opines that when healing did not occur, Dr. Golembe should have "recognized the need for debridement, closing the wound and possible grafting." According to the expert, the failure to take timely action lead to "adherence of the bandages to the wound and the increased inflammation of the wound." He also notes that upon presentation to the emergency room there were "signs of infection." There is sufficient evidence in the records to support these findings and conclusions by plaintiff's expert, notwithstanding the apparent two-month hiatus between treatment with the defendant and Dr. Most. [*8]

On July 5th the defendant documented bleeding from the right breast incision and on July 13, 2006 loss of skin. He alternated the antimicrobial Aquacel silver dressings with the non-adherent Mepitel silicone one. On August 3, 2006, almost two months post surgery, defendant notes that the wound is "closing" and advised plaintiff to continue with the Aquacel dressings. Defendant's note for the final visit reflects a separation on the left. Plaintiff testified that the defendant sent the same dressings to her in Atlanta, indicating that by the time she completed using them the wounds would be closed. The color photographs taken on August 10, 2006 depict significant areas of redness or peeled off skin in the lower portion of the right breast. And, the defendant admits that, when plaintiff visited Brookdale, the wound culture grew rare staph aureus and few corynebacterium, and that plaintiff was placed on antibiotic Keflex for seven days. Dr. Most, in his operative report (supplied by defendant) notes that the wound care regiment in use by plaintiff caused the bandages to adhere to the wounds and the wounds to become inflamed. Thus, it cannot be said that there is no competent support in the record for the opinions of plaintiff's expert.

An expert's opinion must be based on facts in evidence (see Espinal v Jamaica Hosp., 71 AD3d 723 [2010]; Dandrea v Hertz, 23 AD3d 332 [2005]). Here, the facts upon which the expert bases his opinion are clearly set forth in the parties' submissions. Accordingly, it is

ORDERED, that the cross-motion is granted to the extent of dismissing plaintiff's claims for malpractice relating to the manner in which the surgery of June 16, 2006 was performed and for lack of informed consent, and the cross-motion is, otherwise, denied; and it is further

ORDERED, that counsel for the parties appear in the Medical Malpractice Trial Readiness Part on November 15, 2010.

ENTER,

J.S.C.