The following papers numbered 1 to 7 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-3

Opposing Affidavits (Affirmations)4-5

Reply Affidavits (Affirmations)6-7

Affidavit (Affirmation)

Other Papers

Upon the foregoing papers, in this action by plaintiff Alexandra Kerenyi (plaintiff) to recover damages for alleged medical malpractice and lack of informed consent, defendant Jonathan Lanzkowsky, M.D. (defendant) moves for an order: (1) pursuant to CPLR 3212, granting him summary judgment dismissing all of plaintiff's causes of action as against him based upon the asserted ground that no material issues of fact exist and that he is entitled to judgment against plaintiff as a matter of law, and (2) precluding plaintiff's [*2]medical expert from testifying that plaintiff's claimed injuries were caused by a failure by him to immediately administer estrogen following the Dilation and Curettage (D & C) procedure performed by him on September 21, 2006 because the theory that the administration of estrogen following the D & C procedure would have prevented plaintiff from developing Asherman's Syndrome is not generally accepted within the medical or scientific community. Defendant, in his motion, alternatively seeks an order granting him a hearing pursuant to Frye v United States (293 F 1013 [DC Cir 1923]) and Parker v Mobil Oil Corp. (7 NY3d 434, 448 [2006]) requiring plaintiff to establish the medical and scientific validity of her medical expert's theory that the administration of estrogen following the D & C would have prevented her alleged injuries.

Defendant is a physician specializing in obstetrics and gynecology. Plaintiff is the daughter of defendant's former medical practice partner, non-party Thomas Kerenyi, M.D. (Dr. Kerenyi). In September 2003, plaintiff began her treatment with defendant for routine gynecological care. In 2004 and 2005, plaintiff complained of, among other things, no menstruation, and defendant diagnosed her as having hypothalamic amenorrhea, a condition in which menstruation stops for several months due to a problem involving the hypothalamus. During the next two and one-half year period, plaintiff consulted with defendant, and he attempted various methods to enable plaintiff to regularly menstruate since she desired to become pregnant. Defendant's methods included prescribing medications, including Provera, Clomid, and Prometrium, but these methods were unsuccessful in enabling plaintiff to ovulate. Defendant recommended that plaintiff pursue treatment with a reproductive endocrinologist, and she consulted with non-party Lawrence Grunfeld, M.D. (Dr. Grunfeld), an infertility specialist, beginning on September 16, 2005. After a course of treatment to precipitate ovum production, an in vitro fertilization and transfer was successfully performed by Dr. Grunfeld.

Plaintiff returned to defendant on May 18, 2006 for obstetric care, at which time she was six weeks pregnant with twin boys, and she, thereafter, continued to receive prenatal care from defendant during routine visits. On August 23, 2006, plaintiff miscarried both fetuses while at home. Plaintiff was taken to Jersey Shore Medical Center, where she delivered the placentas, and she was discharged and sent home the same day. On September 7, 2006, plaintiff was seen by defendant and he noted that she was doing well at that time with no vaginal bleeding. However, plaintiff subsequently had vaginal bleeding, and, therefore, she went to see defendant on September 18, 2006. At that visit, defendant performed a sonosalpingohysterography, which revealed questionable retained products of conception. As a result of this finding, defendant referred plaintiff to non-party radiologist, Lyris Schonholz, M.D. (Dr. Schonholtz), for further evaluation.

On September 20, 2006, Dr. Schonholz performed transabdominal and transvaginal pelvic sonograms, and the results of these sonograms confirmed that a [*3]moderate to large amount of tissue, which was likely retained placenta, was present within plaintiff's endometrial cavity. Following this evaluation by Dr. Schonholz, plaintiff consulted with Dr. Kerenyi (who, as noted above, is her father) and Dr. Grunfeld, and was advised by them that her options were either to allow the retained tissue to pass on its own, which might take several months, or to have a D & C procedure, which would immediately remove the retained tissue. Since plaintiff was eager to begin trying to conceive a child again as soon as possible, she decided to have defendant perform the D & C.

On September 21, 2006, defendant performed an in-office D & C of plaintiff's uterus. According to defendant, prior to performing the D & C, he and Dr. Kerenyi had advised plaintiff of the risk of damaging the uterine lining and developing scar tissue following the procedure. Defendant's procedure note reflects that he performed the D & C utilizing suction and gentle sharp curettage. Plaintiff appeared to tolerate the procedure well, and she went home the same day, with instructions to follow-up her care with Dr. Grunfeld. Plaintiff was not prescribed estrogen by defendant immediately following the D & C.

Plaintiff was first seen by Dr. Grunfeld after the D & C on October 16, 2006, at which time a saline sonogram was performed, and plaintiff thereafter began to resume her efforts at becoming pregnant through in vitro fertilization. Dr. Kerenyi saw plaintiff for a transvaginal ultrasound on November 7, 2006, at which time her endometrial lining was noted to be too thin for implantation and she was given Estradiol (estrogen) treatment so that her uterine thickness could become thick enough for embryo transfer. On November 13, 2006, plaintiff was further evaluated by Dr. Grunfeld, and a saline sonogram showed formation of adhesions (scar tissue) at that time. Dr. Grunfeld prescribed continued Estradiol, and, on December 9, 2006, he added Provera to plaintiff's medications.

Dr. Kerenyi performed transvaginal ultrasounds on plaintiff through mid-September 2007, which showed thin endometrial lining in the range of 2.0 to 2.9 mm. On September 27, 2007, defendant performed a saline sonohysterogram, and, in his report, he noted that plaintiff was not responding to Prometrium and Estradiol, and he diagnosed plaintiff with Asherman's Syndrome, which is intrauterine scarring or adhesions. Defendant subsequently spoke to Dr. Grunfeld on October 1, 2007, at which time Dr. Grunfeld advised him that he had diagnosed plaintiff with Asherman's Syndrome in November 2006, but he did not recommend resecting the scar tissue in plaintiff's uterus.

Consequently, defendant referred plaintiff to non-party reproductive endocrinologist and fertility specialist, Dan Goldschlag, M.D. (Dr. Goldschlag), for a second opinion. On November 1, 2007, Dr. Goldschlag performed an operative hysteroscopy with lysis of adhesions, in an effort to repair plaintiff's endometrial lining. After another in vitro fertilization by Dr. Grunfeld, plaintiff became pregnant in 2008, but miscarried at eight and one-half weeks gestation. Following that miscarriage, plaintiff's efforts to become pregnant again continued to fail. Plaintiff ultimately had to use a [*4]gestational carrier (i.e., a surrogate) in order to have children, and such gestational carrier delivered twins in February 2010.

On March 12, 2009, plaintiff filed this action against defendant, seeking damages for the injuries allegedly sustained by her due to the D & C procedure performed by him and the medical care and treatment which he rendered to her. Plaintiff's first cause of action for medical malpractice alleges that the medical and surgical care and treatment rendered by defendant to her was performed in a negligent manner which was not in conformity with accepted medical practice, and that this caused her to experience physical and emotional pain and suffering, to have to undergo extensive medical, infertility, obstetric, and gynecologic care and treatment, and to incur financial expense. Plaintiff's second cause of action for lack of informed consent alleges that defendant failed to inform her of the reasonably foreseeable risks and benefits of, and alternatives to the treatment rendered, and that a reasonably prudent person in her position would not have consented to the treatment rendered by defendant if she had been fully informed.

Defendant interposed an answer on April 7, 2009. Plaintiff's verified bill of particulars, dated July 17, 2009, alleges that defendant departed from good and accepted medical practice by his failure to timely diagnose her retained products of conception, his failure to obtain her informed consent with respect to the D & C performed on September 21, 2006, his improper performance of a D & C and his failure to perform an evacuation utilizing ultrasound guidance and suction only, and his failure to start her on estrogen therapy immediately after the D & C.

Depositions have been held and discovery has been completed. Plaintiff filed her note of issue on January 25, 2012. On March 23, 2012, defendant served plaintiff with his expert witness disclosure pursuant to CPLR 3101 (d), which stated that he may call as an expert on his behalf a physician who is board certified in obstetrics and gynecology, and which set forth the subject of his expert's expected testimony.

On April 2, 2012, defendant filed the instant motion, which is supported by the affidavit of his medical expert, Larry I. Barmat, M.D. (Dr. Barmat), who is a physician board certified in obstetrics and gynecology with a subspecialty in reproductive endocrinology and infertility. In an expert exchange pursuant to CPLR 3101 (d), dated July 31, 2012, plaintiff stated that at the time of trial, she may call an expert witness in obstetrics and gynecology, and that such expert is expected to testify concerning the proper performance of the D & C, the manner in which it was performed on her, the significance of findings made on a pathologic examination of the specimens submitted for analysis from that procedure, the etiology of Asherman's Syndrome, and the impact of this disorder on her ability to carry a pregnancy. This expert exchange by plaintiff further stated that her medical expert is expected to opine that defendant departed from accepted medical practice in the manner of performance of the D & C that he performed upon her, and that her expert will testify that the D & C was performed with such aggressiveness as to deviate from standard and accepted technique and practice, and that the tissue [*5]curettaged from her uterus, including myometrium, evidences this improper technique.

Plaintiff, thereafter, submitted opposition papers, dated August 1, 2012, to defendant's motion. Defendant, in response, submitted a reply affirmation, dated October 10, 2012, annexing a supplemental expert affidavit by Dr. Barmat, dated October 2, 2012.

In addressing defendant's motion insofar as it seeks summary judgment dismissing plaintiff's first cause of action for medical malpractice, the court notes that "[t]he requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice, and evidence that such deviation or departure was a proximate cause of injury or damage" (Brady v Westchester County Healthcare Corp., 78 AD3d 1097, 1098 [2d Dept 2010]; see also Garbowski v Hudson Val. Hosp. Ctr., 85 AD3d 724, 726 [2d Dept 2011]; Castro v New York City Health & Hosps. Corp., 74 AD3d 1005, 1006 [2d Dept 2010]; Deutsch v Chaglassian, 71 AD3d 718, 719 [2d Dept 2010]). "A defendant physician moving for summary judgment in a medical malpractice action has the initial burden of establishing, prima facie, either the absence of any departure from good and accepted medical practice or that any departure was not the proximate cause of the alleged injuries" (Brady, 78 AD3d at 1098; see also Garbowski, 85 AD3d at 726). In opposition, "a plaintiff must 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" (Deutsch, 71 AD3d at 719; see also Garbowski, 85 AD3d at 726; Stukas v Streiter, 83 AD3d 18, 24 [2d Dept 2011]; Brady, 78 AD3d at 1098).

As noted above, defendant, in support of his instant motion, has submitted the affidavit of his medical expert, Dr. Barmat, who is a physician board certified in obstetrics and gynecology. Dr. Barmat opines, within a reasonable degree of medical certainty, that defendant did not depart from good and accepted medical practice in treating plaintiff from August 25, 2006 to September 21, 2006 or at any time thereafter, and that no act or omission on the part of defendant caused or contributed to plaintiff's injuries.

Specifically, in addressing the claims set forth in plaintiff's bill of particulars, Dr. Barmat explains that there was no delay by defendant in diagnosing plaintiff's retained products of conception. Dr. Barmat also sets forth his opinion that there is no merit to plaintiff's claim that the D & C was not properly performed. He asserts that the D & C performed by defendant utilizing gentle sharp curettage following suction curettage was appropriately performed by defendant. In addition, Dr. Barmat states that there is no medical basis under the prevailing accepted standards of obstetrics and gynecology and reproductive endocrinology and infertility as they existed both in 2006 and at present for plaintiff's allegation in her bill of particulars that the administration of estrogen therapy immediately following the D & C would have prevented her development of Asherman's Syndrome, and that such a proffered theory regarding estrogen therapy is not generally accepted in the medical and scientific community. [*6]

Thus, defendant, by the foregoing, has established his prima facie entitlement to judgment as a matter of law by adducing expert opinion evidence that he did not deviate from the relevant standards of practice (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The burden, therefore, shifted to plaintiff to raise, in opposition, a triable issue of fact.

Plaintiff, in her opposition papers, initially states that, as confirmed by her July 31, 2012 expert exchange, her expert will not be testifying that her injuries were caused by a failure to immediately administer estrogen following the D & C. She notes that this renders moot defendant's motion insofar as it seeks to preclude her expert from testifying in this regard and for a Frye and Parker hearing on this topic.

Plaintiff then argues that a triable issue of fact exists as to whether defendant negligently performed the D & C, causing her to develop Asherman's Syndrome. Plaintiff relies upon the fact that defendant actually admitted, at his deposition, that the etiology of plaintiff's Asherman's Syndrome was from the D & C which he performed on her uterus (Defendant's Dep. Transcript at 133-135). Specifically, defendant testified, at his deposition, that it was his own opinion, within a reasonable degree of medical certainty, that the D & C that he performed on plaintiff's uterus was the cause of her Asherman's Syndrome (Id. at 134-135).

Plaintiff's opposition to defendant's motion is further supported by the submission of the redacted sworn affidavit of her medical expert, a physician, who is board certified in obstetrics and gynecology. Plaintiff's expert similarly points to defendant's own deposition testimony, wherein he opined, within a reasonable degree of medical certainty, that the D & C that he performed on plaintiff's uterus caused her to develop Asherman's Syndrome. Plaintiff's expert states that he agrees with this opinion by defendant that the D & C performed by him caused plaintiff to develop Asherman's Syndrome.

Moreover, plaintiff's expert points to the fact that material obtained from the September 21, 2006 D & C performed by defendant on plaintiff's uterus had been submitted for analysis to Mount Sinai Hospital. In an addendum to the original pathology report analyzing the submitted specimens from this D & C, the pathologist wrote that a review of the biopsy showed necrotic chorionic villi and fragments of weakly secretory endometrium, that fragments of fibromuscular tissue were also present, and that inflammatory changes were seen only within endocervical fragments of tissue.

Plaintiff's expert states that a D & C must be carefully and gently performed, and that the scar tissue which is the hallmark of Asherman's Syndrome does not occur in the absence of excessive trauma (unless caused by overwhelming infection which, as has been conceded by defendant, was not what occurred here). Plaintiff's expert opines, within a reasonable degree of medical certainty, that the D & C was not carefully and gently performed by defendant. Plaintiff's expert explains that a gently and carefully performed D & C must not injure or invade the myometrium, which is the middle (muscular) layer of the uterine wall underlying the endometrium, which is the inner layer. [*7]Plaintiff's expert further explains that to have gone beyond the endometrial layer and into the myometrium was a departure from accepted practice in the performance of the D & C by defendant.

According to plaintiff's expert, the pathology report, which documented the presence of fragments of fibromuscular tissue, proves that the technique used by defendant was overly aggressive since a gentle technique, as claimed to have been performed by defendant, would not have produced fibromuscular tissue. Plaintiff's expert concludes that this is incontrovertible evidence that the technique used by defendant was overly aggressive, and that such technique was a departure from accepted medical practice, which caused the development of the scar tissue that resulted in Asherman's Syndrome. Plaintiff's expert, therefore, opines that defendant departed from accepted standards of treatment in rendering care to plaintiff, and that such departure was a substantial contributing factor in causing her to develop Asherman's Syndrome.

Plaintiff, by the submission of her expert's affidavit, along with defendant's deposition testimony, is sufficient to raise triable issues of fact as to whether defendant departed from good and accepted medical practice (see Adjetey v New York City Health & Hosps. Corp., 63 AD3d 865, 865 [2d Dept 2009]; Boutin v Bay Shore Family Health Ctr., 59 AD3d 368, 370 [2d Dept 2009]). "Summary judgment may not be awarded in a medical malpractice action where the parties adduce conflicting opinions of medical experts, which present a credibility question requiring a jury's resolution" (Berger v Hale, 81 AD3d 766, 766 [2d Dept 2011]; see also McKenzie v Clark, 77 AD3d 637, 638 [2d Dept 2010]; Espinal v Jamaica Hosp. Med. Ctr., 71 AD3d 723, 724 [2d Dept 2010]; Sandmann v Shapiro, 53 AD3d 537, 538 [2d Dept 2008]; Dandrea v Hertz, 23 AD3d 332, 333 [2d Dept 2005]). Here, the submitted papers present a credibility battle between the parties' experts, and such "issues of credibility are properly left to a jury for its resolution" (Barbuto v Winthrop Univ. Hosp., 304 AD2d 623, 624 [2d Dept 2003]; see also Halkias v Otolaryngology-Facial Plastic Surgery Assoc., 282 AD2d 650, 651 [2d Dept 2001]).

Defendant, in his reply, however, contends that plaintiff's expert's affidavit must be completely disregarded by the court because plaintiff did not serve her expert disclosure and did not notify his counsel of the fact that she retained an expert until after this motion was filed. This contention is devoid of merit. It has been recently held that "the failure of a party to exchange expert information pursuant to CPLR 3101 (d) (1) (i) before the filing of a note of issue and certificate of readiness will not divest a trial court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment" (Rivers v Birnbaum, 102 AD3d 26, 31 [2d Dept 2012]).

Thus, a court is not required to "reject a party's submission of an expert's affidavit or affirmation in support of, or in opposition to, a timely motion for summary judgment solely because the expert was not disclosed pursuant to CPLR 3101 (d) (1) (i) prior to the [*8]filing of a note of issue and certificate of readiness, or prior to the making of the motion" (Id. at 39). This is because "the fact that the disclosure of an expert pursuant to CPLR 3101 (d) (1) (i) takes place after the filing of the note of issue and certificate of readiness does not, by itself, render the disclosure untimely (Id. at 41). "Rather, the fact that pretrial disclosure of an expert pursuant to CPLR 3101 (d) (1) (i) has been made after the filing of the note of issue and certificate of readiness is but one factor in determining whether disclosure is untimely" (id.; see also Kozlowski v Oana, 102 AD3d 751, 752 [2d Dept 2013]).

Here, the preclusion of plaintiff's medical expert's affidavit submitted in the context of defendant's motion for summary judgment based solely upon plaintiff's failure to disclose this expert pursuant to CPLR 3101 (d) (1) (i) prior to the filing of her note of issue and certificate of readiness would not advance this court's role of determining the existence of a triable issue of fact (see Rivers, 102 AD3d at 42). Since on a motion for summary judgment in a medical malpractice action, a party is generally required to submit an affidavit or affirmation from a medical expert to either meet its prima facie burden in support of the motion, or to raise a triable issue of fact in opposition to the motion, precluding plaintiff's expert's affidavit solely on the basis that she did not disclose her expert's identity pursuant to CPLR 3101 (d) (1) (i) before the filing of her note of issue and certificate of readiness would not be consistent with the purpose and procedural posture of a motion for summary judgment (see id.).

Furthermore, defendant first disclosed his own expert approximately two months after the filing of plaintiff's note of issue and certificate of readiness, and approximately one week before he moved for summary judgment. There is no justification to permit defendant to serve a late disclosure of his medical expert and to deny plaintiff from doing so (see LeMaire v Kuncham, 102 AD3d 659, 661 [2d Dept 2013]). While defendant contends that he has been prejudiced by this late disclosure due to his inability to address the assertions raised in plaintiff's expert's affidavit in his initial moving papers, defendant (as noted above) has submitted a supplemental affidavit by Dr. Barmat which addresses these assertions by plaintiff's expert. Since the court, in determining defendant's motion, will consider Dr. Barmat's supplemental expert affidavit, this will eliminate any possible prejudice to defendant.

Defendant, in his reply papers, in addressing the merits of the contentions raised by plaintiff and her expert, further argues that plaintiff and her expert ignore crucial facts that invalidate their assertions. Specifically, defendant points to the fact that plaintiff had a history of hypothalamic amenorrhea and was only able to first become pregnant in late 2005 after several attempts of in vitro fertilization, and that she had subsequently miscarried, which required the D & C at issue. This argument is unavailing. While plaintiff may have had prior difficulty in becoming pregnant, this does not show that the development of Asherman's Syndrome did not worsen her chances of becoming pregnant or cause her further pain and suffering. In fact, it is undisputed that due to her [*9]development of Asherman's Syndrome, plaintiff underwent a resection procedure by Dr. Goldschlag, resulting in pain and suffering and medical expense. Furthermore, while defendant contends that Dr. Goldschlag's performance of the resection enabled plaintiff to become pregnant again, and that, therefore, she could not have been rendered infertile by his performance of the D & C, the fact remains that this pregnancy ended in a miscarriage and plaintiff was never able to give birth. Thus, the impact of the D & C upon plaintiff's chances of becoming pregnant and the extent to which it reduced her ability to give birth to a child presents a triable issue of fact which cannot be determined on this motion for summary judgment (see CPLR 3212 [b]).

Dr. Barmat asserts that a D & C, by definition, requires that the clinician scape down the walls of the endometrial cavity to remove the retained products of conception that remain embedded in the uterus. However, this does not demonstrate, as a matter of law, that the procedure performed by defendant was not performed negligently as contended by plaintiff's expert.

While Dr. Barmat asserts that Asherman's Syndrome is a risk of a D & C, even if this is shown to be the case, this would not be conclusive on the issue of whether there was negligence in the manner of performance of the D & C. Dr. Barmat relies solely on defendant's own self-serving assertion that he was careful to support his conclusion that defendant was careful in performing the D & C, whereas plaintiff's expert relies upon the pathology report showing the inclusion of myometrium tissue which, plaintiff's expert maintains, should not have been present unless the D & C was negligently performed. Thus, there is an issue of fact as to whether any negligence by defendant unnecessarily increased the risk of plaintiff's development of Asherman's Syndrome (see generally Lawrence v Vartolo, 32 Misc 3d 1223[A], 2011 NY Slip Op 51393[U], *3 [Sup Ct, Richmond County 2011]).

Dr. Barmat asserts that many patients will develop Asherman's Syndrome following a D & C even without the presence of myometrial tissue on a D & C pathology specimen. However, while there may be other causes for Asherman's Syndrome in other patients, this would not conclusively show that in this case, plaintiff's development of Asherman's Syndrome was not caused by an overly aggressive D & C. Therefore, material and triable issues of fact exist as to whether defendant departed from the standard of care of good and accepted medical practice, and such issues must be determined at trial (see generally McCallen v Sherwin, 2001 NY Slip Op 50131[U], *7, 2001 WL 1791514, *3 [Sup Ct, Nassau County 2001]).

Defendant, however, additionally argues (as he previously argued with respect to the theory regarding the administration of estrogen following the D & C, which, as noted above, has not been pursued by plaintiff) with respect to plaintiff's expert's theory that the presence of myometrial (fibromuscular) tissue on the September 21, 2006 D & C pathology slide is evidence of an excessively aggressive performance of the D & C procedure, that such theory is not generally accepted in the medical community. In [*10]support of this argument, Dr. Barmat, in his supplemental affidavit, asserts that there is no medical basis under the prevailing accepted standards of obstetrics and gynecology and reproductive endocrinology and infertility as they existed both in 2006 and at present for plaintiff's allegation that the presence of myometrium in the pathology specimen submitted relative to the September 21, 2006 D & C is indicative of an excessively traumatic procedure. Dr. Barmat states that there were no standard of care protocols from the American College of Obstetricians and Gynecologists or the American Association of Reproductive Medicine in effect in 2006 or at present which indicate that the presence of myometrial (fibromuscular) tissue in a D & C pathology specimen is a breach from the standard of care. Dr. Barmat further states that in 2006 and at present, there existed no empirical medical studies that suggest that the presence of myometrial tissue on a D & C pathology will cause Asherman's Syndrome.

In determining the admissibility of expert testimony, New York follows the rule enunciated in Frye v United States (293 F 1013 [DC Cir 1923]) "that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance' in its specified field" (People v Wesley, 83 NY2d 417, 422 [1994], quoting Frye, 293 F at 1014; see also People v Wernick, 89 NY2d 111, 115 [1996]; Lugo v New York City Health & Hosps. Corp., 89 AD3d 42, 55 [2d Dept 2011]; Lipschitz v Stein, 65 AD3d 573, 575 [2d Dept 2009]; Nonnon v City of New York, 32 AD3d 91, 101 [1st Dept 2006], affd on other grounds 9 NY3d 825 [2007]; Zito v Zabarsky, 28 AD3d 42, 44 [2d Dept 2006]). "[A] Frye inquiry is directed at the basis for the expert's opinion and does not examine whether the expert's conclusion is sound" (Lugo, 89 AD3d at 56). "Frye is not concerned with the reliability of a certain expert's conclusions, but instead with whether the experts' deductions are based on principles that are sufficiently established to have gained general acceptance as reliable'" (Nonnon, 32 AD3d at 103, quoting Marsh v Smyth, 12 AD3d 307, 308 [1st Dept 2004]; see also Lipschitz, 65 AD3d at 576; Alston v Sunharbor Manor, LLC, 48 AD3d 600, 602 [2d Dept 2008]; DieJoia v Gacioch, 42 AD3d 977, 979 [2007]). In other words, "[t]he court's job is not to decide who is right and who is wrong, but rather to decide whether or not there is sufficient scientific support for the expert's theory" (Gallegos v Elite Model Mgt. Corp., 195 Misc 2d 223, 225 [Sup Ct, NY County 2003]; see also Lugo, 89 AD3d at 56).

" [G]eneral acceptance does not necessarily mean that a majority of the scientists involved subscribe to the conclusion,'" but, instead, " it means that those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions' " (Zito, 28 AD3d at 44, quoting Beck v Warner-Lambert Co., 2002 NY Slip Op 40431[U], *6-7 [Sup Ct, NY County 2002]). "Thus, the limited purpose of the Frye test is to ascertain whether the expert's conclusion is based upon accepted scientific principles, rather than simply the expert's own unsupported beliefs" (Lugo, 89 AD3d at 56).

"New York courts have also applied the Frye test to assess the reliability of an [*11]expert's theory of causation in a particular case" (Id. at 57). With respect to this category of expert opinion testimony, "it is not necessary that the underlying support for the theory of causation consist of cases or studies considering circumstances exactly parallel to those under consideration in the litigation," but, rather, "[i]t is sufficient if a synthesis of various studies or cases reasonably permits the conclusion reached by the plaintiff's expert'" (Zito, 28 AD3d at 44, quoting Marsh, 12 AD3d at 312-313 [Saxe, J., concurring]; see also DieJoia, 42 AD3d at 979). "The fact that there [is] no textual authority directly on point to support the [expert's] opinion is relevant only to the weight to be given the testimony, but does not preclude its admissibility" (Zito, 28 AD3d at 46; see also DieJoia, 42 AD3d at 979; Munoz v Rubino, 37 Misc 3d 1216[A], 2012 NY Slip Op 52057[U], *5 [Sup Ct, Orange County 2012]).

In Parker (7 NY3d at 446-447, quoting Frye, 293 F at 1014), the Court of Appeals noted that "Frye holds that while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.'" It further noted that "[t]he Frye inquiry is separate and distinct from the admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case" (Parker, 7 NY3d at 447; see also Muhammad v Fitzpatrick, 91 AD3d 1353, 1354 [4th Dept 2012]; Lugo, 89 AD3d at 62). Thus, proffered evidence must have an adequate foundation for its admissibility (see Muhammad, 91 AD3d at 1354).

While expert testimony as to causation has been precluded in circumstances where there is a complete absence of any literature or studies supporting the particular causation theory espoused by the expert and the opinion of the plaintiff's expert is scientifically unreliable and fundamentally speculative (see e.g. Lewin v County of Suffolk, 18 AD3d 621, 622 [2d Dept 2005]; Hooks v Court St. Med., P.C., 15 AD3d 544 [2d Dept 2005]), this determination is made only after a Frye hearing has been held. Thus, while the court has denied summary judgment, since plaintiff's expert has not provided reference to medical or scientific literature to support the opinion that the presence of fragments of fibromuscular tissue proves that the technique used by defendant was overly aggressive and that a gentle technique, as claimed to have been performed by defendant, would not have produced such fibromuscular tissue, the court finds that a Frye and Parker hearing should be held to determine whether plaintiff's expert's conclusions were based upon principles which have been sufficiently established and have gained general acceptance so as to render them admissible at trial (see Lugo, 89 AD3d at 47; LaRose v Pathare, 29 Misc 3d 1203[A], 2010 NY Slip Op 51683[U], *3-4 [Sup Ct, Richmond County 2010]; Streimer v Biondo, 21 Misc 3d 1124[A], 2008 NY Slip Op 52164[U], *10 [Sup Ct, NY County 2008]).

In turning to defendant's motion insofar as it seeks summary judgment dismissing [*12]plaintiff's second cause of action for lack of informed consent, it is noted that Public Health Law § 2805-d (1) defines lack of informed consent as "the failure of the person providing the professional treatment . . . to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation." In order to sustain a cause of action for lack of informed consent, a plaintiff is required to establish that "a reasonably prudent person in the patient's position would not have undergone the treatment . . . if he [or she] had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought" (Public Health Law § 2805-d [3]; see also Johnson v Staten Is. Med. Group, 82 AD3d 708, 709 [2d Dept 2011]; Thompson v Orner, 36 AD3d 791, 793 [2d Dept 2007]; Manning v Brookhaven Mem. Hosp. Med. Ctr., 11 AD3d 518, 520 [2d Dept 2004]).

In support of his motion, defendant has submitted his deposition testimony. At his deposition, defendant testified that a day before the D & C, plaintiff asked him about the D & C and what was involved, that they discussed it in brief detail at that time, and that he told plaintiff that once she decided to have it performed, they could discuss it in more detail (Defendant's Dep. Transcript at 110). Defendant further testified that on the day which the D & C was scheduled to be performed, he had another conversation with plaintiff, in which he informed her of the risks of, and alternatives to the D & C and gave her details about the procedure and how it is performed (Id. at 112-114). Specifically, defendant testified that he advised plaintiff that the D & C procedure would be performed under mild sedation and that he would attempt to remove all of the retained tissue with a suction catheter, but might need to utilize a curette afterwards if not all of the tissue could be removed with suction, and that she might require further procedures to ensure that all of the tissue was removed (Id. at 112-113). Defendant also testified that he advised plaintiff that the risks of the D & C included infection, bleeding, perforation of the uterus, and the development of intrauterine scarring (Id. at 113-114). He specifically testified that they discussed that there is always a risk of Asherman's Syndrome or intrauterine scarring which, he told her, in most cases, can be easily corrected (Id. at 114). He also testified that they again discussed waiting as an option and doing nothing as an option (id.).

Defendant also relied upon plaintiff's own deposition testimony, wherein she acknowledged that she was made aware of the risks of, and alternatives to the D & C. Specifically, plaintiff, at her deposition, testified that Dr. Grunfeld had explained the D & C procedure to her, and that she had an understanding as to what would be done during the D & C procedure (Plaintiff's Dep. Transcript at 167-168). Plaintiff further testified that Dr. Grunfeld told her that she could either wait and let the retained matter pass on its own, which could take up to six months, or that she could have a D & C (Id. at 154).

Plaintiff, while denying that defendant discussed the risks associated with the D & [*13]C with her, admitted, at her deposition, that her father, Dr. Kerenyi, had told her that if the D & C was done too aggressively, her uterine lining could be damaged, and that she was aware of the risks of this procedure (Id. at 156-158, 166). Plaintiff testified that, knowing this risk, she was still willing to undergo the D & C because she assumed that she "was in good hands" with defendant and that he would not do the D & C too aggressively (Id. at 158).

Defendant additionally relies upon the opinion of his medical expert, Dr. Barmat, who addresses plaintiff's claim of lack of informed consent. Dr. Barmat notes that, as set forth in defendant's deposition testimony, prior to the day that the D & C was performed as well as on the day of the D & C, immediately before it was performed, defendant fully discussed with plaintiff the manner in which the D & C would be performed, as well as the risks and alternatives to this procedure. He further notes that defendant also discussed the alternative to the D & C procedure with plaintiff, which was doing nothing and waiting for the tissue to resolve on its own, which may have taken several months. In addition, he points to the fact that plaintiff's father also advised her of the option of waiting instead of undergoing the D & C, and that her father specifically advised her that the procedure carried a risk of damaging the uterine lining. He opines that under the prevailing standards and practices existing at the time of the D & C, plaintiff, prior to her consenting to this procedure, was properly and accurately informed as to the manner in which the D & C would be performed and of the risks and alternatives to the D & C, including the risk of damaging the uterine lining and developing intrauterine adhesions.

Defendant, by his deposition testimony regarding his discussions with plaintiff about the D & C, the alternatives to this procedure, and the reasonably foreseeable risks and benefits associated with this procedure, along with Dr. Barmat's expert opinion that plaintiff was provided with informed consent and plaintiff's own deposition testimony that she was informed of, and was aware of the risks and alternatives to the D & C, has made a prima facie showing of his entitlement to judgment as a matter of law dismissing plaintiff's second cause of action for lack of informed consent (see Etminan v Sasson, 51 AD3d 623, 624 [2d Dept 2008]; Ortaglia v Scanlon, 35 AD3d 421, 421 [2d Dept 2006]; Ericson v Palleschi, 23 AD3d 608, 610 [2d Dept 2005]).

In opposition to defendant's motion, plaintiff has failed to raise any triable issue of fact regarding the issue of lack of informed consent. Indeed, plaintiff's opposition papers fail to address the issue of lack of informed consent at all. Thus, summary judgment dismissing plaintiff's second cause of action for lack of informed consent is warranted (see Etminan, 51 AD3d at 624; Rebozo v Wilen, 41 AD3d 457, 458 [2d Dept 2007]; Wilson v Buffa, 294 AD2d 357, 358 [2d Dept 2002], lv denied 98 NY2d 611 [2002]).

Accordingly, defendant's motion is denied insofar as it seeks summary judgment dismissing plaintiff's first cause of action for medical malpractice and it is granted insofar as it seeks summary judgment dismissing plaintiff's second cause of action for lack of [*14]informed consent. Defendant's motion is also granted insofar as it alternatively seeks a Frye and Parker hearing to the extent that the court shall conduct such a hearing, prior to trial, to determine the issue of whether plaintiff's expert's theory, that the presence of myometrial (fibromuscular) tissue on the September 21, 2006 D & C pathology slide is evidence of an excessively aggressive performance of the D & C, is a theory generally accepted within the medical and scientific community.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.