[*1]
Burgos v New York Methodist Hosp.
2015 NY Slip Op 50309(U) [46 Misc 3d 1226(A)]
Decided on March 3, 2015
Supreme Court, Kings County
Steinhardt, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 3, 2015
Supreme Court, Kings County


Rachel Burgos, Plaintiff,

against

New York Methodist Hospital and Hillary Fairbrother, M.D., Defendants.




2484/2012
Marsha L. Steinhardt, J.

Defendants move pursuant to CPLR §3212 for an Order granting summary judgment in their favor. Plaintiff opposes the motion.

This is an action sounding in medical malpractice wherein plaintiff alleges that defendants failed to diagnose and treat sinusitis. More specifically, plaintiff claims that during an emergency room visit, Dr. Fairbrother and the hospital staff failed to properly conduct a physical examination, failed to perform appropriate diagnostic studies including a CT, failed to refer plaintiff to an appropriate specialist and ordered contra-indicated medications. As a result of the alleged malpractice, plaintiff's infectious sinusitis went undiagnosed requiring a craniotomy.

Plaintiff, a 20 year old woman, presented to New York Methodist Hospital on January 17, 2010 complaining of a severe headache. She was examined by resident, Dr. Van Voorhees, and by attending physician, Dr. Fairbrother. The hospital record notes that the patient [*2]complained of a severe throbbing headache above her right eye that started two days prior and was not relieved by Tylenol sinus. The patient did not have photosensitivity, nausea, vomiting, dizziness, altered level of consciousness or seizure. On physical examination by Dr. Van Voorhees, the patient was alert and oriented with normal speech and with no focal neurological deficit. Dr. Fairbrother's physical exam of the patient revealed that the patient was in no acute distress, with no neurological deficits, no heart murmurs, or arrhythmia. The patient's mucosa was moist and there was no pharyngeal erythema or exudate. After administration of Zofran, Decadron, Benedryl and Ibuprofen, Dr. Fairbrother reevaluated the patient and noted that her condition was improved. The patient was discharged home with instructions regarding headaches and advised to return for follow-up at the clinic. Approximately two weeks later, the patient presented to Long Island College Hospital and underwent a craniotomy due to ascending sinusitis.

Defendants submit the affirmation of Mark S. Silberman, M.D., a physician board certified in emergency medicine, critical care medicine, pulmonary medicine and internal medicine. Based upon his review of the New York Methodist Hospital record pertaining to the plaintiff and the deposition transcripts of parties and non-party medical personnel, Dr. Silberman opines that the defendants acted within the standard of care in their care and treatment of the plaintiff on January 17, 2010. He opines that the diagnosis was appropriately made and medications were properly ordered and administered. As the patient had no other complaints associated with the headache including explosive onset of pain, sensitivity to light, neck pain or dizziness, it was appropriate that no radiological imaging was ordered. He states that the risk to pediatric patients of developing cancer and cognitive dysfunction associated with radiation is a concern and imaging should not be ordered unless absolutely necessary. Likewise, based on the finding of no fever or purulent discharge, a neurological, neurosurgical or ear, nose and throat consultation was not required as there was no indication of a sinusitis. The expert states that as patients should not be prescribed antibiotics unless they have symptoms of sinusitis for 10 days, it was proper not to prescribe antibiotics. The expert opines that the patient was properly discharged from the hospital with prescriptions for Motrin and Reglan with instructions to follow up at the hospital's medical clinic within three to five days.

Plaintiff submits the affirmation of a physician Board Certified in Internal Medicine and Endocrinology/Metabolism and Board Certified in Emergency Medicine. The expert bases his opinions on his review of the records for the emergency presentation of January 17, 2010, the deposition transcripts of the parties and the records of the patient's admission on January 31, 2010 to Long Island College Hospital. The expert avers that Dr. Fairbrother departed from the standard of care by not performing a trans-illumination test of the front sinuses, by not feeling or pressing the sinuses and by not tapping on the teeth of this patient who presented with right sided throbbing severe pain above the eye for two days with no relief with over the counter medications. The expert opines that the plaintiff had no signs or symptoms relative to a migraine headache, namely that she did not present with photophobia, noise, neck motion or standing, nausea, vomiting or dizziness. The expert opines that the defendants deviated from the standard of care in not formulating a differential diagnosis of sinusitis versus headache. The failure to diagnose sinusitis resulted in the plaintiff developing a right subdural collection which required a craniotomy. The expert opines that the untreated sinusitis led to a brain abscess and infection of [*3]the bone.

In reply, defendants reveal that the plaintiff went to Long Island College Hospital clinic two days after her ER visit at Methodist Hospital. For the first time in the Reply, Defendants submit a further affirmation of his expert Dr. Silberman, who apparently sometime after his original affirmation, reviewed records from a Dr. Rebecca Siegel who treated the plaintiff at Long Island College Hospital on January 19, 2010. He states that the patient complained of a severe headache and right-sided pain. The examination resulted in a differential diagnosis of headache versus sinusitis. Dr. Siegel prescribed Bactrim for the presenting complaints and also prescribed Azithromycin for Chlamydia. Dr. Silberman noted that Azithromycin also is effective in treating sinus infections. Dr. Silberman opines that even if defendants had diagnosed a bacterial infection on January 17th, the treatment would have been the same as that prescribed by the subsequent medical provider. A two day delay would not have represented a substantial change in the course of treatment and would not have prevented the development of a subdural hematoma and the need for a surgical drainage procedure.

However, this evidence submitted by the defendants for the first time in their reply papers cannot be considered for the purpose of establishing their prima facie entitlement to summary judgment. Yeum v. Clove Lakes Health Care and Rehabilitation Center, Inc., 71 AD3d 739 (2d Dept. 2010); DiLapi v. Saw Mill River, LLC, 122 AD3d 896 (2d Dept.2014). Indeed, the plaintiff in her Sur-Reply objects to the new facts offered by defendant in the Reply. It is well established that a defendant may not rely on the proof submitted in its reply affidavits in order to meet its burden of proof on its motion in chief. Rengifo v City of New York, 7 AD3d 773 (2d Dept 2004); Feratovic v Lun Wah, 284 AD2d 368 (2d Dept 2001). In the oft cited case, Ritt v Lenox Hill Hosp.182 AD2d 560 (1st Dept.1992), the Court stated that:

As we view it, the function of a reply affidavit is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion (see, Lazar v. Nico Indus., 128 AD2d 408, 409—410, 512 N.Y.S.2d 693). Nor does it avail defendant to shift to plaintiff, by way of a reply affidavit, the burden to demonstrate a material issue of fact at a time when plaintiff has neither the obligation nor opportunity to respond absent express leave of court (CPLR 2214[c]; Lazar v. Nico Indus., supra). We perceive no reason to protract a procedure designed "to expedite the disposition of civil cases where no issue of material fact is presented to justify a trial" (Di Sabato v. Soffes, 9 AD2d 297, 299, 193 N.Y.S.2d 184) by encouraging submission of yet another set of papers, an unnecessary and unauthorized elaboration of motion practice. If a movant, in preparation of a motion for summary judgment, cannot assemble sufficient proof to dispel all questions of material fact, the motion should simply not be submitted. Supra at 562; see also, McKenzie v. Abrahams, 72 AD3d 758, 759 (2d Dept. 2010).

The Second Department in Master v. Boiakhtchion, 122 AD3d 589 (2d Dept. 2014) affirmed the lower court's denial of summary judgment in a situation analogous to the one at hand. In that case, the Second Department, affirming the denial of summary judgment as plaintiff had raised an issue of fact, held that the lower court properly did not consider the new matter raised in the reply for the first time. In the instant motion, the hospital report from LICH was improperly submitted in the reply, as was the affidavit of defendant's expert opining on the diagnosis and treatment rendered to [*4]the plaintiff at LICH. This, therefore, cannot be considered. See, Klimis v. Lopez, 290 AD2d 538 (2d Dept.2002); Scott v. Albord, 292 AD2d 367 (2d Dept. 2002). The only papers properly before the court are defendants' motion and plaintiff's opposition.

In this case defendants established its prima facie entitlement to summary judgment by the original submission of expert Dr. Silberman. On a motion for summary judgment dismissing a medical malpractice cause of action, a defendant has the prima facie burden of establishing that there was no departure from good and accepted medical practice, or, if there was a departure, the departure was not the proximate cause of the alleged injuries. Brinkley v. Nassau Health Care Corp., 120 AD3d 1287 (2d Dept. 2014); Fritz v. Burman, 107 AD3d 936, 940 (2d Dept. 2013); Makinen v. Torelli, 106 AD3d 782, 783—784 (2d Dept. 2013); Shehebar v. Boro Park Obstetrics & Gynecology, P.C., 106 AD3d 715, 715 (2d Dept. 2013). Defendants established that the patient presented with no signs and symptoms that required further testing, that the defendants thereby complied with the standard of care and that the treatment rendered did not proximately cause plaintiff's injury.

Once the defendant has made such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the prima facie showing made by the defendant, so as to demonstrate the existence of a triable issue of fact. Fritz v. Burman, supra at 940; Lingfei Sun v. City of New York, 99 AD3d 673, 675 (2d Dept. 2012); Bezerman v. Bailine, 95 AD3d 1153, 1154 (2d Dept. 2012); Stukas v. Streiter, 83 AD3d 18, 24 (2d Dept. 2011). A plaintiff succeeds in a medical malpractice action by showing that a defendant deviated from accepted standards of medical practice and that this deviation proximately caused plaintiff injury. Contreras v Adeyemi, 102 AD3d 720, 721 (2d Dept. 2013); Gillespie v New York Hosp. Queens, 96 AD3d 901, 902 (2d Dept. 2012); Semel v Guzman, 84 AD3d 1054, 1055-56 (2d Dept. 2011). The plaintiff opposing a defendant physician's motion for summary judgment must only submit evidentiary facts or materials to rebut the defendant's prima facie showing. Stukas v. Streiter, supra at 24.

In opposition to this motion, plaintiff raised an issue of fact with the submission of an expert who offered detailed opinions as to the treatment rendered which conflicts with defendants' expert's opinions, thereby precluding summary judgment. Plaintiff's expert's opinion that defendants' claimed failure to perform diagnostic testing on the patient who presented with complaints of right sided pain above the eye for two days deviated from the standard of care was detailed and contradicts defendants' expert's opinion. As defendants' original submission establishes a prima facie case for summary judgment and an issue of fact is raised by plaintiff's opposition, the motion must be denied. "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury." Feinberg v. Feit, 23 AD3d 517, 519 (2d Dept 2005)[internal citations omitted]; Colao v. St. Vincent's Med. Ctr., 65 AD3d 660, 661 (2d Dept. 2009); Deutsch v. Chaglassian, 71 AD3d 718 (2d Dept. 2010); Barnett v Fashakin, 85 AD3d 832, 835 (2d Dept. 2011).

Accordingly, Defendants' motion is denied.

ENTER,

HON. MARSHA L. STEINHARDT

J.S.C.