In this medical malpractice action, the motions of defendants EDWIN M. CHANG, M.D., PAUL KELLEHER, M.D., STEPHEN A. KULICK, M.D., and NEUROSCIENCE ASSOCIATES OF NEW YORK, A DIVISION OF HEALTHCARE ASSOCIATES IN MEDICINE, P.C., for summary judgment dismissing plaintiff's complaint, pursuant to CPLR §3212, are denied. The motion of defendant LUIGI J. PARISI, M.D. for summary judgment dismissing plaintiff's complaint, pursuant to CPLR §3212, is granted.

Plaintiff DIANA DIXON's ("DIXON") primary contention is that defendants were negligent in their failure to timely diagnose and treat DIXON's multiple sclerosis ("MS").

DIXON initially presented herself to defendant PAUL KELLEHER, M.D. ("Dr. KELLEHER"), a physiatrist, on August 29, 2003 with complaints of, among other things, pain in her lower back for the past 12 years following a bus accident and unsteady gait for a period of six months prior to her appointment. Dr. KELLEHER ordered a CT scan of DIXON's lumbar spine which revealed mild spinal stenosis in the area of L4-5 and congenital spinal stenosis in the area of L5. On September 26, 2003, DIXON returned to Dr. KELLEHER and she reported similar complaints to him including difficulty with walking and feeling unsteady. Dr. KELLEHER noted that her gait appeared abnormal and directed DIXON to have a MRI of her cervical spine in order to rule out cervical myelopathy. DIXON returned to Dr. KELLEHER ten days later complaining of lower back pain and difficulty walking. Of note, she reported that she had fallen at work because her legs gave way causing her to hurt her right arm.

The MRI of DIXON's cervical spine took place on October 16, 2003 and it was discovered that she had a moderate to large disc herniation at C5-6 with moderate cord impingement. On October 16, 2003, Dr. KELLEHER examined DIXON and referred her to a neurosurgeon - defendant EDWIN M. CHANG, M.D. ("Dr. CHANG").

DIXON's initial consultation with Dr. CHANG took place on November 11, 2003 who noted that DIXON was experiencing increasing difficulties walking and she had developed [*2]paresthesias in both of her hands. She also had diminished reflexes in both of her knees. Dr. CHANG reviewed DIXON's MRI and recommended that she undergo an anterior cervical decompressive discetomy and anterior cervical plating at C5-6. The surgery took place on February 4, 2004 (without complication) and DIXON followed up with Dr. CHANG on February 24, 2014 and he noted that her walking had improved.

Dr. CHANG saw DIXON for a follow-up visit on May 4, 2004 and Dr. CHANG noted that DIXON was ambulating with the assistance of a walker and that she continued to experience spastic myelopathy. He directed that DIXON obtain an x-ray of her cervical spine and to obtain an MRI that had been previously ordered by her primary physician. DIXON did not return to Dr. CHANG until approximately 9 months later (February 1, 2005) and his examination revealed that DIXON's condition had not improved as she continued to require a walker and that her back pain had worsened. Dr. CHANG ordered another MRI of DIXON's lumbar spine which was performed on February 8, 2005 and revealed no abnormalities. Dr. CHANG did not see DIXON again until September 30, 2005 and he noted that she was now dependent upon her walker for ambulation and prescribed Zanaflex and Liboderm patches and recommended a MRI of DIXON's thoracic spine. The MRI was conducted and, on October 11, 2005 (approximately 20 months after her surgery), Dr. CHANG referred her to defendant STEPHEN A. KULICK, M.D. ("Dr. KULICK"), a neurologist, in order to rule out any neurological causes of her symptoms including multiple sclerosis.

Dr. KULICK examined DIXON of November 1, 2005 and suggested, among other things, that she have an MRI of her brain to rule out primary progress of multiple sclerosis. The MRI of her brain was conducted shortly thereafter and DIXON saw Dr. KULICK on three subsequent occasions and, on January 30, 2006, he reported that her weakness in her lower extremities attributable to her spinal cord atrophy and that primary progressive multiple sclerosis may be a contributing factor. Dr. KULICK concluded that there was no treatment available for DIXON's condition and recommended further physical therapy.

DIXON returned to Dr. KELLEHER on five occasions between March, 2005 and June, 2005 for follow-up examinations. Generally, Dr. KELLEHER directed DIXON to continue physical therapy and he also prescribed pain medication for her during those visits. DIXON met with Dr. KELLEHER for the last time on February 27, 2006.

DIXON returned to Dr. KELLEHER on February 27, 2006 and he recommended that she obtain a second neurology opinion and within two weeks she was seen by non-party Dr. J. Patrick Stubgen ("Dr. Stubgen"). In April, 2006, Dr. Stubgen obtained cerebral spinal fluid from DIXON by way of a lumbar puncture and he concluded that she had progressive multiple sclerosis.

The treatment and/or examination of DIXON by defendant LUIGI J. PARISI, M.D. ("Dr. PARISI") is limited to six occasions between December, 2004 and October, 2005. During this period, Dr. PARISI acted as a conduit for DIXON in obtaining referrals for physical therapy, treatment of her eczema and other skin conditions, prescribing her cold medication, and, lastly, referring her to Dr. KULICK. In Contreras v. Adeyemi, 102 AD3d 720 [2014], the Appellate Division, Second Department sets forth as follows:

To establish liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted standards of practice, and that such departure was a proximate cause of the plaintiff's injuries (Stukas v. Streiter, 83 AD3d 18 [2011]; see also Gillespie v. New York Hosp. Queens, 96 AD3d 901 [2012]; Swanson v. Raju, 95 AD3d 1105 [2012]; Heller v. Weinberg, 77 AD3d 622 [2010]). A defendant physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure from good and accepted medical practice or that the plaintiff was not injured thereby (see Stukas v. Streiter, 83 AD3d at 24; see also Gillespie v. New York Hosp. Queens, 96 AD3d at 902; Swanson v. Raju, 95 AD3d at 1106; Heller v. Weinberg, 77 AD3d at 622-623). Once a defendant has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact (see Stukas v. Streiter, 83 AD3d at 24; see also Gillespie v. New York Hosp. Queens, 96 AD3d at 902; Heller v. Weinberg, 77 AD3d at 623). In order to defeat a defendant's motion for summary judgment, a plaintiff must only rebut the defendant's prima facie showing (see Stukas v. Streiter, 83 AD3d at 30; see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Summary judgment is not appropriate where the parties adduce conflicting medical expert opinions, as issues of credibility can only be resolved by a jury (see Hayden v. Gordon, 91 AD3d 819, 821 [2012]; Bengston v. Wang, 41 AD3d 625, 626 [2007]; Feinberg v. Feit, 23 AD3d 517, 519 [2005]).

Dr. CHANG and Dr. KULICK maintain that they are entitled to summary judgment dismissing DIXON's claims because that did not depart from good and accepted neurosurgery and neurology practice, respectively, in their treatment of DIXON.

Dr. CHANG submits the affirmation of board-certified neurosurgeon who opines that the surgery performed by Dr. CHANG was indicated and necessary and that the surgery would have taken place even if DIXON had been diagnosed with MS before the surgery was performed. The expert concludes that Dr. CHANG properly treated DIXON post-operatively and that he time referred her to Dr. KULICK. Lastly, the neurosurgeon states that even if Dr. CHANG had referred DIXON to Dr. KULICK earlier, her outcome would not be different because there is no effective treatment for the type of DIXON's MS.

A board-certified neurologist opines that Dr. KULICK should also be entitled to summary judgment because Dr. KULICK properly evaluated DIXON and ordered the appropriate tests. The neurologist also submits that, although MS was included in Dr. KULICK's differential diagnosis, Dr. KULICK was unable to give DIXON a definitive diagnosis "because she did not meet the necessary diagnostic criteria".

Dr. KELLEHER and Dr. PARISI submit the affirmation of board-certified experts in physical medicine and rehabilitation and internal medicine who maintain that both doctors are entitled to summary judgment dismissing the claims of DIXON.

The expert in physical medicine and rehabilitation proffered by Dr. KELLEHER concludes that Dr. KELLEHER, among other things, performed the proper evaluations; ordered the appropriate studies; prescribed suitable medications and physical therapy; and did not depart from good and accepted standards of medical care by deferring to the findings and recommendations of the specialist who were managing DIXON's neurological care.

A board-certified expert in internal medicine that Dr. PARISI's care given to DIXON was [*3]well within the accepted standards of medical care. He concludes that Dr. PARISI was not involved in the decision for DIXON to have the cervical spine surgery; that he did not assume any aspect of her neurological or neurosurgical treatment; and that any treatment rendered by Dr. PARISI for DIXON's care (including dermatitis and respiratory infection) was proper.

However, plaintiff proffers the affirmations of a neurologist, radiologist, and an expert in family practice in oppositions to defendants' motions. The board-certified neurologist maintains that Dr. CHANG and Dr. KULICK failed to timely diagnose and treat DIXON's MS. The neurologist asserts that Dr. CHANG departed from standards of care by subjecting DIXON to a cervical discetomy and implantation of hardware without attempting to perform a differential diagnosis which should have included the consideration that DIXON suffered from MS.The neurologist also alleges that Dr. KULICK failed to perform a differential diagnosis and that he incorrectly diagnosed DIXON with Primary Progressive MS rather than MS.

DIXON also submits the affirmation of a expert in family practice that both Dr. KELLEHER and Dr. CHANG departed from accepted standards of medical care. Specifically, the physician claims that Dr. KELLEHER failed to make proper referrals, to order appropriate and necessary tests, to properly take a medical history, and to develop a differential diagnosis which should have included MS. The physician also alleges that Dr. CHANG failed to construct a proper differential diagnosis which led to a delay in the final diagnosis of DIXON's MS.

Lastly, DIXON also provides the affirmation of a radiologist who alleges that Dr. KELLEHER departed from the accepted standards of care because he provided "misleading information" to the radiologist who performed the October 8, 2003 MRI. The expert asserts that if the radiologist was provided with an accurate clinical basis (gait disturbance and numbness in DIXON's thighs), the radiologist would have likely run appropriate studies (including a MRI of DIXON's head) that would have discovered evidence of DIXON's MS.

DIXON, through her submission of the affidavits of her medicals experts which conflict with the opinions of defendants' experts, has raised triable issues of fact as to whether Dr. KELLEHER, Dr. CHANG, and Dr. KULICK have committed acts of negligence and, as a result, summary judgment is not appropriate (see Hayden v. Gordon, supra.). However, DIXON fails to rebut Dr. PARISI's prima facie entitlement to summary judgment as DIXON has not submitted sufficient evidence that Dr. PARISI deviated or departed from accepted standards of practice, and that such departure was a proximate cause of the plaintiff's injuries

Accordingly, it is

ORDERED, that the motions of defendants EDWIN M. CHANG, M.D., PAUL KELLEHER, M.D., STEPHEN A. KULICK, M.D., and NEUROSCIENCE ASSOCIATES OF NEW YORK, A DIVISION OF HEALTHCARE ASSOCIATES IN MEDICINE, P.C., for summary judgment dismissing plaintiff's complaint, pursuant to CPLR §3212, are denied; and it is further

ORDERED, that the motion of defendant LUIGI J. PARISI, M.D. for summary judgment dismissing plaintiff's complaint, pursuant to CPLR §3212, is granted.

This shall constitute the decision and order of the Court.

E N T E R,

/s/ Philip G. Minardo

HON. PHILIP G. MINARDO