The following papers numbered 1 to 14 read on this motion by defendants/third-party defendants SUNIL H. BUTANI, M.D., JEFFREY CHACKO, M.D., and SUNIL H. BUTANI, PHYSICIAN, P.C. for an Order pursuant to CPLR 3211(1)(7) and 3212(b) granting summary judgment in favor of said defendants/third-party defendants and dismissing the complaint as well as the third-party complaint:Papers/Numbered

This is an action to recover damages for, inter alia, medical malpractice and lack of informed consent. The medical malpractice claims arise out of a sacroiliac join fungal infection suffered by plaintiff as a result of a sacroiliac joint steroid injection administered by Dr. Chacko to plaintiff on September 25, 2012. The steroid, methylprednisolone acetate, administered to plaintiff was contaminated by a fungus. Plaintiff alleges that Dr. Chacko was negligent in administering a sacroiliac joint steroid injection in that it was not necessary or indicated. Plaintiff further alleges that Dr. Chacko failed to obtain an informed consent for the sacroiliac joint injection.

Plaintiff appeared for an examination before trial on November 6, 2014. He testified that on July 2, 2012, while performing certain construction work on the premises of St. Mary's Hospital, he injured his right elbow, right foot, and back. He sought treatment from Drs. Butani and Chacko for back pain. Dr. Butani recommended the administration of three epidural injections. Dr. Chacko administered the first and second injections. The second injection was administered on September 24, 2012. At a follow up visit, Dr. Butani advised him that he might have received tainted medication which could have resulted in his developing meningitis. Subsequently, he was hospitalized and was advised by an infectious disease specialist that on September 24, 2012, he had actually received two injections, one into his sacroiliac joint where he developed an infection. At the time of the second injection, he was unaware that Dr. Chacko had administered a sacroiliac joint injection.

On August 4, 2015, Dr. Chacko appeared for an examination before trial. He testified that from August 2011 to May 2014, he was employed by Sunil H. Butani, Physician, P.C. as a pain management specialist. He first saw plaintiff on July 6, 2012 at which time plaintiff complained of radiating low back pain. At the time of the initial evaluation, he did not diagnose plaintiff with sacroiliac joint dysfunction. Dr. Chacko diagnosed plaintiff with low back pain secondary to lumbar radiculopathy. Dr. Chacko [*2]recommended that plaintiff undergo MRIs of the lumbar spine, right shoulder, right elbow, and right knee. Dr. Chacko re-examined plaintiff on July 16, 2012. He diagnosed plaintiff with low back pain secondary to lumbar radiculopathy and recommended continued physical therapy. Dr. Chacko also notes that if plaintiff continues to report pain, they will consider lumbar epidural steroid injection for treatment of lumbar radiculopathy. He did not diagnosis plaintiff with sacroiliac joint dysfunction. On September 11, 2012, he administered a lumbar epidural steroid injection on plaintiff. On September 25, 2012, he injected plaintiff with a second lumbar epidural steroid. He also administered a sacroiliac joint injection. For both injections plaintiff was injected with the steroid methylprednisolone acetate, which was obtained by Sunil H. Butani, Physician, P.C. from the New England Compounding Pharmacy. On September 25, 2012, plaintiff complained of a lot of pain in his right lower back and was pointing to the sacroiliac joint. He palpated the area and it was tender. He also performed the Faber test and plaintiff felt pain when doing certain maneuvers. There was no documentation of plaintiff's complaints, his examination, or the results of his examination. He did not no why there was a lack of documentation. In drawing the subject medication he noticed nothing unusual. A general consent form was signed by plaintiff. However, the form was signed prior to him examining plaintiff and deciding that plaintiff had sacroiliac joint pain, and therefore, needed a sacroiliac joint injection. He testified that plaintiff was advised that he was going to perform a sacroiliac joint injection and he described all the risks to plaintiff. He would always advise patients that there was a risk of infection, but would not specifically mention the type of infection. As a matter of practice he would not advise patients as to a risk of a contaminated steroid. Following the subject injection, the office was contacted by the Center for Disease Control regarding the recall of certain steroids from the New England Compounding Pharmacy. He did not know that there was a recall of New England Compounding Company steroids at the time he injected plaintiff.

Dr. Butani appeared for an examination before trial on October 20, 2015. Dr. Butani testified that he first examined plaintiff on July 26, 2012. He diagnosed plaintiff with low back pain syndrome with lumbar radiculopathy. Dr. Butani recommended continued physical therapy and suggested a possible injection into the lower back if the pain did not improve. He did not make a diagnosis of a sacroiliac joint dysfunction. Plaintiff did not make any complaints on July 26, 2012 that were consistent with sacroiliac joint dysfunction in his opinion. He next saw plaintiff on August 16, 2012 and September 13, 2012, with plaintiff receiving the first injection administered by Dr. [*3]Chacko on September 11, 2012. After the second injection was administered by Dr. Chacko, Dr. Butani saw plaintiff on October 11, 2012. He was aware that Dr. Chacko also injected plaintiff's sacroiliac joint on September 25, 2012. He had no involvement in that procedure. He did countersign Dr. Chacko's note for credentialing purposes. He testified that if he knew the steroids were tainted, the office would not have used that batch.

"The 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" (Castro v New York City Health & Hosps. Corp., 74 AD3d 1005, 1006 [2d Dept. 2010]). On a motion for summary judgment, the defendant has the burden of establishing the absence of any deviation or departure, or that the patient was not injured thereby (see id. at 1006; Stukas v Streiter, 83 AD3d 18 [2d Dept. 2011]; Deutsch v Chaglassian, 71 AD3d 718 [2d Dept. 2010]). If the defendant establishes a prima facie case of entitlement to judgment as a matter of law, then the plaintiff must submit evidentiary facts to rebut the prima facie showing (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

In support of the motion, movants submitted the affidavit of their expert, Michel Y. Dubois, M.D. Dr. Dubois affirms that as a result of the initial construction accident, it is likely that plaintiff injured his sacroiliac joint. He further affirms that plaintiff's complication stemming from the subject injection would not be included on a list of complaints of which a patient must be advised. Additionally , Dr. Dubois states that there was nothing about the appearance of the medication that would have suggested it contained a fungus. As such, Dr. Chacko had no reason to believe that he was injecting plaintiff with a contaminated medication. He concludes that movants did not depart from good and accepted medical practices in the care and treatment of plaintiff nor were any of the alleged departures the proximate cause of plaintiff's injuries. As to Dr. Butani, Dr. Dubois opines that as he was not involved in the decision to inject plaintiff in his sacroiliac joint on September 25, 2012, he did could not have failed to proved plaintiff with information regarding the risks, benefits and alternatives to the procedure. Accordingly, Dr. Butani did not depart from good and accepted medical care in his treatment of plaintiff.

Baaed on the above testimonies and Dr. Dubois' affidavit, movants argue that summary judgment must be granted as movants did not deviate or depart from accepted community standards of practice. Movants also contend that because they had no reason to [*4]suspect that the product purchased was contaminated, the contamination represented a new and independent force. Thus, any injury sustained by plaintiff was beyond defendants' duty of care as they were not foreseeable.

In opposition, plaintiff contends that movants failed to establish their prima facie case because Dr. Dubois' affidavit fails to establish that Dr. Chacko did not depart from accepted medical practice in diagnosing plaintiff with sacroiliac joint dysfunction. Plaintiff also contends that Dr. Dubois fails to establish that Dr. Chacko did not depart from accepted medical practice in administering a sacroiliac join injection inasmuch as it was not indicated or necessary, and thus, unnecessarily exposed plaintiff to the risks of the injection, including the risk of infection.

Dr. Dubois does not provide a basis for his opinion that the underlying construction accident caused injury to plaintiff's sacroiliac joint. Additionally, besides the September 25, 2012 report, there is no documentation to suggest that plaintiff had sacroiliac joint injury. Dr. Dubois also fails to indicate that the subject injection was necessary or indicated. Although movants contend that the contaminated methylprednisolone was an intervening, superceding cause, plaintiff's infection is a known, recognized risk of a sacroiliac joint injection. Thus, at the very least, an issue of fact exists as to whether Dr. Chacko unnecessarily exposed plaintiff to the risk of infection and whether the resulting infection was foreseeable (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980][finding that questions concerning what is foreseeable are generally issues for the fact finder to resolve]).

Similarly, as to the informed consent cause of action, issues of fact exist as to whether plaintiff was adequately informed. While Dr. Chacko testified that he did advise plaintiff of the risks of the procedure, plaintiff testified that he was not even advised that a sacroiliac joint injection was being performed. Thus, there are issues of credibility which must be determined by the trier of fact rather than on a motion for summary judgment(see Conciatori v Port Auth. of NY & N. J., 46 AD3d 501 [2d Dept. 2007]). Additionally, there is no consent form for the sacroiliac joint injection, and none of the forms which plaintiff signed on September 25, 2012 indicated that a sacroiliac injection was being performed. Thus, issues of fact exist as to whether Dr. Chacko obtained an adequate informed consent and as to whether such was a proximate cause of plaintiff's infection.

Lastly, it is undisputed that Sunil H. Butani Physician, P.C. is vicariously liable for any negligence on the part of Dr. Chacko (see Keitel v Kurtz, 54 AD3d 387 [2d Dept. 2008]). As Dr. Chacko failed to demonstrate his entitlement to judgment as a matter of law, summary judgment must be denied as to Sunil H. Butani Physician, P.C. However, this Court finds that Dr. Butani did establish a prima facie case for summary judgment as Dr. Butani did not administer the subject injection nor was he involved in any decision to administer such. In opposition, plaintiff failed to raise a triable issue of fact as to any malpractice on part of Dr. Butani.

Accordingly, and based on the above stated reasons, it is hereby

ORDERED, that defendants/third-party defendants SUNIL H. BUTANI, M.D., JEFFREY CHACKO, M.D., and SUNIL H. BUTANI, PHYSICIAN, P.C.'s motion for summary judgment is granted in favor of SUNIL H. BUTANI, M.D., only, plaintiff's complaint and the third-party complaint is dismissed as against SUNIL H. BUTANI, M.D., only, and the Clerk of the Court is authorized to enter judgment accordingly.