This medical malpractice case arises out of an office visit that the decedent, Andreas Skirianos, made to Defendant, Jalong Gaan, M.D., in which it is alleged that the doctor failed to timely diagnose and treat a toe infection in Mr. Skirianos's right foot that became gangrenous and required amputations. Defendant Gaan and The New York and Presbyterian Hospital, sued here as The New York Presbyterian Hospital, move for summary judgment pursuant to Rule 3212 of the Civil Practice Law and Rules. For the following reasons that motion is granted in part and denied in part.

The decedent, Andreas Skirianos, was initially referred to Defendant, Jalong Gaan, M.D., in October 2005, by his primary care physician and nephrologist, Dr. Jonathan Lorch. Dr. Gaan is a member of the Department of Dermatology at The New York and Presbyterian Hospital (Hospital). At his initial visit, on October 3, 2005, Mr. Skirianos, who was 55 at the time, completed a medical history that showed that he was diabetic. He complained to Dr. Gaan that he was suffering from a body rash that had lasted for the past year.

In examining Mr. Skirianos, Dr. Gaan diagnosed stasis dermatitis on the left leg and edematis dermatitis on the left arm, which he testified in his deposition in this case that he attributed to poor circulation. Dr. Gaan prescribed a steroid, Cutivate, and recommended that Mr. Skirianos return in two weeks. [*2]

At the next visit, on October 17, 2005, Mr. Skirianos complained of itchy skin on his back and face. Dr. Gaan examined those areas as well as Mr. Skirianos's lower left extremity. Dr. Gaan again diagnosed stasis dermatitis and also diagnosed xerosis of the face.

Mr. Skirianos returned for treatment on January 30, 2006. He complained to Dr. Gaan of an itch "all over the body." In examining Mr. Skirianos, Dr. Gaan noted that the patient had generally dry skin and bilateral edema of the ankles. He diagnosed the patient as having dry skin, eczema, and stasis dermatitis of the legs. He attributed the edema and stasis dermatitis to poor circulation. He again prescribed Cutivate, among other medications, to address the symptoms and recommended that the patient wear elastic stockings for the swelling.

Mr. Skirianos last saw Dr. Gaan on March 15, 2006. Dr. Gaan, who the record shows has no independent recollection of this patient, wrote in his medical notes that the patient complained of infection in his left great toe, as well as itching, drainage, and a foul smell. Dr. Gaan noted an erythematous scaly patch at the outer region of the left calf as well as a laceration at the large toe tip that measured two millimeters. The toe nail had separated from the toe, but Dr. Gaan did not note a foul smell. He diagnosed the patient with impetigo and prescribed an antibiotic ointment as well as a topical steroid for the scaly patch on the patient's back and left calf. He instructed the patient to return as needed. Dr. Gaan claims that he did not examine Mr. Skirianos's other foot. This Court notes that Mr. Skirianos died from unrelated causes before he would have been deposed in this action, and, therefore, the record does not include any testimony by him regarding the events in this case.

The following Monday, on March 20, 2006, Mr. Skirianos first saw podiatrist, Dr. Ronald Volino. Dr. Volino reviewed Mr. Skirianos' left foot ulcer as well as the patient's complaint of a very bad smell and redness in both feet. Dr. Volino found both feet edematous and further noted that the right foot had ulcerations but no drainage. He prescribed the oral antibiotic, Keflex, and advised the patient to see his primary care physician immediately.

The next morning, Mrs. Skirianos called Dr. Volino before 7:00 am to complain that Mr. Skirianos had developed chills overnight. His toe had swollen and was light blue. Dr. Volino told her to take Mr. Skirianos to the emergency room or to a foot clinic for blood tests and intravenous antibiotics.

That afternoon, Mr. Skirianos saw Dr. Lorch at the Hospital's outpatient clinic. Dr. Lorch noted that the patient was complaining of a problem with the right fourth toe and "a change in the smell of his feet about 1 month ago." Dr. Lorch diagnosed cellulitis of the right foot with gangrene of the fourth right toe. He sent Mr. Skirianos to the Hospital's emergency room.

Mr. Skirianos reported to the Hospital's emergency department. The emergency notes indicate that the patient was complaining of a "foul smelling" right fourth toe and "bluish discoloration." The notes further related that the patient had "noted sore and foul smell over last week or two." [*3]

The next evening, on March 22, 2006, Mr. Skirianos underwent an amputation of his third and fourth toes on his right foot due to gangrene. The gangrene also extended onto the dorsum of the foot to the ankle level. The vascular surgeon, Dr. Peter Faeries, drained the incision and debrided all non-viable material. He described the gangrene as "extensive" and progressive over approximately the preceding week; he stated that the patient "had noted these changes and sought medical attention due to the foul odor that the toe had been generating over the ensuing several days."

Mr. Skirianos underwent additional procedures flowing from the amputations. The following afternoon, on March 23, 2006, he had further debridement of the right lower extremity. On March 28, 2006, he had an angioplasty to vascularize the vessels in his right leg. He was discharged on April 3, 2006.

This action for medical malpractice and lack of informed consent was begun in June 2008. Mr. Skirianos claimed that the Defendants had failed to timely diagnose and treat his toe infection, including failing to refer him to a vascular surgeon to restore circulation to avert gangrenous infection and amputation. During the course of the litigation, however, Mr. Skirianos died from unrelated causes, and his wife succeeded him in the action as his adminstrator. Following Plaintiffs' filing of the note of issue, Defendants moved for summary judgment and to dismiss the complaint. They contend that there are no disputed issues of material fact. On the issue of malpractice, they claim that Mr. Skirianos did not seek treatment for his right foot, and, even if he had, the record does not show that the foot was infected at that time. In support of their prima facie case, they submit the expert opinions of two physicians, Dr. Robert Auerbach, a board-certified dermatologist, and Dr. William Suggs, a board-certified vascular surgeon, who opine that the care rendered was appropriate and any departure did not proximately cause Mr. Skirianos' injuries because in their opinions any infection would not have been evident at the time of the visit. On the issue of informed consent, Defendants contend that cause of action should be dismissed as antithetical to the malpractice allegations of failure to treat.

Plaintiffs oppose the motion on the grounds that disputed facts remain. They also submit expert opinions contesting those of Defendants' experts. First they contend Defendants have not established a prima facie case. They argue defendants' experts ignore contrary facts in the record that show material factual disputes.

Second Plaintiffs proffer their own expert opinions disagreeing with those of Defendants' experts. Plaintiffs' first expert, a vascular surgeon, opines that Dr. Gaan should have examined both of Mr. Skirianos' feet based on Dr. Gaan's knowledge of the patient's diabetes. The expert disputes that any right foot infection would not have been detectable on March 15th and that it was a departure not to refer the patient for a vascular consultation. The expert opines that had the patient been evaluated in the week prior to March 21st, his circulatory problems would have been treated, avoiding the gangrenous infection. [*4]

Plaintiffs' dermatology expert also opines that Dr. Gaan departed in not examining the patient's right foot along with his left on March 15th. The expert disputes that the infection would not have been evident on examination. It was further negligence not to have prescribed antibiotics on that day. Plaintiffs' injuries, the expert opines, were proximately caused by these departures, and additional injuries were only mitigated by the ultimate revascularization of the right foot.

Plaintiffs also submit the opinion of the decedent's subsequent treater, Dr. Volino. Dr. Volino opines that the infection that he observed on March 20th had been present for at least a week. Dr. Gaan's failure to provide systemic anti-microbial treatment on March 15th was a substantial factor in Mr. Skirianos' injuries.

In considering a motion for summary judgment this Court reviews the record in the light most favorable to the non-moving party. E.g., Dallas-Stephenson v. Waisman, 39 AD3d 303, 308 (1st Dep't 2007). The movant must support the motion by affidavit, a copy of the pleadings, and other available proof, including depositions and admissions. C.P.L.R. Rule 3212(b). The affidavit must recite all material facts and show, where defendant is the movant, that the cause of action has no merit. Id. This Court may grant the motion if, upon all the papers and proof submitted, it is established that the Court is warranted as a matter of law in directing judgment. Id. It must be denied where facts are shown "sufficient to require a trial of any issue of fact." Id.

In a medical malpractice case, to establish entitlement to summary judgment, a physician must demonstrate that he did not depart from accepted standards of practice or that, even if he did, he did not proximately cause injury to the patient. Roques v. Noble, 73 AD3d 204, 206 (1st Dep't 2010). In claiming that any treatment did not depart from accepted standards, the movant must provide an expert opinion that is detailed, specific and factual in nature.E.g., Joyner-Pack v. Sykes, 54 AD3d 727, 729 (2d Dep't 2008). Expert opinion must be based on the facts in the record or those personally known to the expert. Roques, 73 AD3d at 195. The expert cannot make conclusions by assuming material facts not supported by record evidence. Id. Defense expert opinion should specify "in what way" a patient's treatment was proper and "elucidate the standard of care." Ocasio-Gary v. Lawrence Hosp., 69 AD3d 403, 404 (1st Dep't 2010). A defendant's expert opinion must "explain what defendant did and why.'" Id. (quoting Wasserman v. Carella, 307 AD2d 225, 226 (1st Dep't 2003)). Conclusory medical affirmations fail to establish prima facie entitlement to summary judgment. 73 AD3d at 195. Expert opinion that fails to address a plaintiff's essential factual allegations fails to establish prima facie entitlement to summary judgment as a matter of law. Id.

Claims of lack of informed consent are statutorily defined. Pub. Health § 2805-d. The law requires persons providing professional treatment or diagnosis to disclose alternatives and reasonably foreseeable risks and benefits involved to the patient to permit the patient to make a knowing evaluation. Id. § 2805-d(1). Causes of action for lack of informed consent are limited to non-emergency procedures or other treatment and include diagnostic procedures that involve invasion or disruption to bodily integrity. Id. § 2805-d(2). To establish lack of informed consent, a claimant must show that a reasonably prudent person in the patient's position would not have undergone the [*5]treatment or diagnosis had the patient been fully informed, and the claimant must show that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought. Id. § 2805-d(3).

As an initial matter, this Court considers Plaintiffs' claim of lack of informed consent. Plaintiffs failed to respond to that branch of Defendants' motion seeking summary judgment on that claim.Nor does this record otherwise suggest that such a cause of action lies where Plaintiffs allege Dr. Gaan failed to treat or diagnose Mr. Skirianos's right foot condition. Accordingly, summary judgment is appropriate on that claim.

I next turn to whether Defendants have established a prima facie case that they are entitled to summary judgment on Plaintiffs' claim of medical malpractice. In this case, Defendants overlook disputed issues of fact in the record to contend that there has been no malpractice. It is simply not sustainable to claim that this record shows that Dr. Gaan did not depart from proper standards of care because Mr. Skirianos did not seek treatment for his right foot on March 15th. While the record shows it is undisputed that Dr. Gaan's notes from that visit do not reflect any issue relating to the right foot, there are other references in the record that imply that the decedent did seek treatment for that foot at that visit. These include the Hospital's emergency notes of March 21 referring to the sore having lasted up to two weeks, Dr. Lorch's medical notes that the odor had begun up to a month earlier, and Dr. Faeries' postoperative report. To overlook this circumstantial evidence to award summary judgment would supplant the role of the factfinder in these proceedings.

Nor is there a prima facie case established on the issue of whether Dr. Gaan's conduct proximately caused Mr. Skirianos's injuries. In moving for summary judgment on this issue, Defendants claim that even if Dr. Gaan did examine the right foot on the 15th, that examination would not have prevented the decedent's injuries. Again, this record shows, including the Hospital's emergency notes of March 21st referring to a sore having lasted up to two weeks, that there are disputed facts regarding when the infection began, which would preclude establishing that any infection was not evident on March 15th.

Finally, the Hospital is seeking summary judgment on the Plaintiffs' remaining medical malpractice claim. In so moving, however, that Defendant does not address its employment relationship with Dr. Gaan. It is well-settled that a hospital is liable for injuries sustained through the negligence of its employees acting within the scope of their employment. E.g., Bing v. Thunig, 2 NY2d 656 (1957). Without any prima facie showing that Dr. Gaan is not its employee, the Hospital has not established that it is entitled to summary judgment as a matter of law on that claim.

Accordingly, it is

ORDERED that Defendants' motion for summary judgment is granted on Plaintiffs' claims of lack of informed consent; and it is otherwise denied; and it is further

ORDERED that the parties shall appear for a pre-trial conference on Tuesday, May 21, 2013, at 9:30 a.m.

Dated: April, 2013

ENTER:

______________________________

JOAN B. LOBIS, J.S.C.