Supreme Court, Albany County, July 29, 2020

Burke, Scolamiero & Hurd, LLP, Albany (Jessica Darrow of counsel), for executrix and others, defendants.

Finz & Finz, P.C., Mineola (Ellen M. Sundheimer of counsel), for plaintiff.

In this action alleging medical malpractice, defendants Christine Grattan, as executrix of the estate of William Grattan, M.D.; Cohoes Family Center; Ruth Kelleher, PNP; Mary Kathleen DiTursi, M.D.; and Harmony Mills Pediatrics move for summary judgment dismissing the complaint. Plaintiff opposes. Because plaintiff has raised triable issues of fact with regard to malpractice liability and causation, defendants' motion is denied.

Background

On March 5, 2018, plaintiff commenced this medical malpractice action alleging, among other things, that defendants Christine Grattan, as executrix of the estate of William Grattan, M.D.; Cohoes Family Center; Mary Kathleen DiTursi, M.D.; Ruth Kelleher, PNP; Harmony Mills Pediatrics; James Slavin, M.D.; Naomi Shencavitz Wilder, P.A.-C; and Burdett Orthopedics, P.C. were negligent in failing to timely diagnose and treat her scoliosis, thereby depriving her of the ability to treat the condition nonsurgically. All defendants answered. Note of issue was filed on January 14, 2020.^[FN1] Defendants Christine Grattan, as executrix of the estate of William Grattan, M.D.; Cohoes Family Center; Mary Kathleen DiTursi, M.D.; Ruth Kelleher, PNP; and Harmony Mills Pediatrics (hereinafter defendants) now move for summary judgment dismissing the complaint against them. Plaintiff opposes.

Analysis

A plaintiff in a medical malpractice action must establish both a deviation from accepted medical practice and that the deviation was a proximate cause of the injury (see Fuller v Aberdale, 130 AD3d 1277, 1280 [3d Dept 2015]). A defendant seeking summary judgment dismissing the complaint must make a prima facie showing of entitlement to judgment as a matter of law by presenting sufficient evidence to demonstrate the{**69 Misc 3d at 483} absence of material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

"To meet the initial burden on a summary judgment motion in a medical malpractice action, defendants must present factual proof, generally consisting of affidavits, deposition testimony and medical records, to rebut the claim of malpractice by establishing that they complied with the accepted standard of care or did not cause any injury to the patient" (Cole v Champlain Val. Physicians' Hosp. Med. Ctr., 116 AD3d 1283, 1285 [3d Dept 2014] [citation omitted]; accord Tkacheff v Roberts, 147 AD3d 1271, 1272 [3d Dept 2017]; see Furman v DeSimone, 180 AD3d 1310, 1311 [3d Dept 2020]).

The defendant's "burden may be satisfied through a 'physician's affidavit or affirmation describing the facts in specific detail and opining that the care provided did not deviate from the applicable standard of care' " (Fuller v Aberdale, 130 AD3d at 1280, quoting Cole v Champlain [*2]Val. Physicians' Hosp. Med. Ctr., 116 AD3d at 1285). If a prima facie case is established, the burden then shifts to the plaintiff to come forward with triable issues of fact sufficient to withstand summary judgment (see Furman v DeSimone, 180 AD3d at 1311).

Defendants met their initial burden by submitting, among other things, plaintiff's medical records, transcripts of the parties' deposition testimonies, and the affirmation of pediatrician Florence Nolan, M.D. (see Cole v Champlain Val. Physicians' Hosp. Med. Ctr., 116 AD3d at 1284-1285). In rendering her expert opinion, Dr. Nolan reviewed the pleadings in this matter, photos, plaintiff's hospital and medical records, and transcripts of depositions held in this case. Based on her knowledge and experience and her review of the information recounted below, Dr. Nolan opined that, "within a reasonable degree of medical certainty[,] all care and treatment by the defendants . . . of the plaintiff . . . was, at all times, well within the standards of good and accepted medical practice."

Plaintiff began treating with defendant Dr. William Grattan at his medical practice, defendant Cohoes Family Center, from the time she was born in September 2001. Defendant Dr. DiTursi began working for Dr. Grattan in 2012. Defendant Ruth Kelleher worked as a pediatric nurse practitioner for Dr. Grattan for many years and treated plaintiff at various times over the course of her childhood. Plaintiff saw Dr. DiTursi for one visit at Dr. Grattan's office on October 1, 2012, which was also{**69 Misc 3d at 484} plaintiff's last visit to Cohoes Family Center. Between October 2012 and August 2013, Dr. Grattan retired from medicine and closed Cohoes Family Center. Dr. DiTursi thereafter opened her own practice, defendant Harmony Mills Pediatrics; she hired some of Dr. Grattan's employees, including PNP Kelleher, and continued treating some of his patients, including plaintiff.

According to plaintiff's pediatric records, on October 1, 2012, plaintiff, accompanied by her mother, saw Dr. DiTursi at Cohoes Family Center for an annual wellness visit. Plaintiff's mother reported to Dr. DiTursi that plaintiff was "walking funny," although she reported no pain or issues with athletics. According to Dr. DiTursi, she examined plaintiff and performed the forward bend scoliosis test.

Dr. DiTursi explained that when she conducts the forward bend test, she has the patient put his or her feet together, keeping the knees straight, and bend over at the waist, with the arms dangling down toward the toes. With the patient in this position, Dr. DiTursi then conducts a visual inspection of the patient's back, looking for discrepancy or asymmetry in the height of the right and left paraspinal muscles. If she sees an asymmetry, she uses a scoliometer to measure the degree of asymmetry. If the asymmetry measures greater than five degrees, Dr. DiTursi orders scoliosis X rays. If there are positive findings on the X rays, Dr. DiTursi then refers the patient to an orthopedist. According to Dr. Nolan, Dr. DiTursi's practice regarding scoliosis testing and diagnosis is "appropriate and in accordance with good and accepted medical practice."

Plaintiff's medical records indicated that plaintiff's forward bend test was negative at her October 1, 2012 visit. Dr. DiTursi found no scoliosis and normal range of motion in plaintiff's lower extremities and back; she found that plaintiff had flat feet and a possible leg length discrepancy. Thus, according to Dr. DiTursi, she did not use a scoliometer or order X rays. But she averred that, to further evaluate plaintiff's possible leg length discrepancy, she ordered hip X rays and referred plaintiff to defendant Dr. James Slavin at defendant Burdett Orthopedics.

Plaintiff was next seen on August 19, 2013, by PNP Kelleher for her annual wellness visit. According to PNP Kelleher, at plaintiff's August 2013 visit she performed the forward [*3]bend test to evaluate plaintiff for scoliosis, and the test was negative. Specifically, PNP Kelleher testified that she evaluated{**69 Misc 3d at 485} plaintiff for scoliosis by having plaintiff bend forward and examining the curvature of plaintiff's spine. PNP Kelleher reportedly did not notice any signs of scoliosis or do any additional testing. According to Dr. Nolan, "[PNP] Kelleher's care and treatment at this visit was in accordance with good and accepted medical practice." And, "[a]s the forward bend test was negative, and there were no other abnormal findings or complaints, no further testing was indicated, and there was no indication for Dr. DiTursi to be consulted."

Apparently stemming from her October 2012 referral, plaintiff saw defendants Dr. Slavin and his physician assistant, Naomi Shencavitz Wilder, at Burdett Orthopedics on August 26, 2013. At this visit, plaintiff's mother reported that plaintiff stood awkwardly and that, when she tried to stand normally, it did not look right. Plaintiff's mother reported no pain in plaintiff's knees, legs, hips, or back, nor did she notice a difference in plaintiff's leg lengths. Dr. Slavin and PA Wilder evaluated plaintiff for a possible leg length discrepancy and scoliosis. They found only a possible pelvic height discrepancy of less than a quarter inch. Dr. Slavin recommended that plaintiff follow up with him as needed and only if there were problems or concerns. Dr. Slavin advised that no X rays or treatment was indicated. And, according to Dr. Nolan, "[i]t was appropriate and in accordance with good and accepted medical practice for [PNP] Kelleher and Dr. DiTursi to rely on Dr. Slavin's findings and recommendations."

Following her August 2013 orthopedic evaluation, plaintiff continued to treat at Harmony Mills Pediatrics until her last visit there on December 15, 2015. During that time, plaintiff saw PNP Kelleher for two annual wellness visits, on November 17, 2014, and December 15, 2015, and either Dr. DiTursi or PNP Kelleher for six routine sick visits. In each of these sick visits, plaintiff presented without indication for a scoliosis exam. According to PNP Kelleher, she evaluated plaintiff at her annual wellness visits for scoliosis and other musculoskeletal abnormalities by observing plaintiff walking and examining her spine; she found no evidence of scoliosis. And, at her December 2015 visit, PNP Kelleher completed a school form indicating that plaintiff did not have scoliosis. According to Dr. Nolan, "as there were negative findings, including on the forward bend test, there was no indication for Dr. DiTursi to be consulted, no indication for referral for x-rays, use of scoliometer, or other testing, and no indication for further referral to an orthopedist."

{**69 Misc 3d at 486}In conclusion, Dr. Nolan opined, "to a reasonable degree of medical certainty, based on the [foregoing], that [PNP] Kelleher, Dr. DiTursi, and Harmony Mills [Pediatrics] followed good and accepted medical practices at all times, consistent with the standard of care in the medical community." The court rejects plaintiff's argument that Dr. Nolan's affirmation is conclusory and lacking in medical basis. In light of the foregoing, defendants have established prima facie their entitlement to summary judgment.

As defendants met their initial burden, the court must determine whether plaintiff has raised triable issues of fact sufficient to withstand summary judgment. In so doing, the court begins with a brief discussion of a continuing department split—between the Third Department and the First, Second, and Fourth Departments of the Appellate Division—regarding a nonmoving plaintiff's burden in opposing a defense motion for summary judgment in medical malpractice actions.

Judge Fahey, in a concurring opinion in Pullman v Silverman (28 NY3d 1060, 1063-1064 [2016]), flagged the department split. He explained that the courts have historically held that,

"if a defendant in a medical malpractice action establishes prima facie entitlement to summary [*4]judgment, by a showing either that he or she did not depart from good and accepted medical practice or that any departure did not proximately cause the plaintiff's injuries, [the] plaintiff is required to rebut defendant's prima facie showing 'with medical evidence that defendant departed from accepted medical practice and that such departure was a proximate cause of the injuries alleged' " (28 NY3d at 1063, quoting Pullman v Silverman, 125 AD3d 562, 562 [1st Dept 2015]; see Bagley v Rochester Gen. Hosp., 124 AD3d 1272, 1273-1274 [4th Dept 2015], abrogated by Bubar v Brodman, 177 AD3d 1358 [4th Dept 2019]; Longtemps v Oliva, 110 AD3d 1316, 1317-1318 [3d Dept 2013]; Amsler v Verrilli, 119 AD2d 786, 786-787 [2d Dept 1986]).

But in 2011, the Second Department adopted in Stukas v Streiter (83 AD3d 18 [2d Dept 2011]) a modified approach, which, at the time of Judge Fahey's concurrence, had not yet been adopted by the other departments.

In Stukas, the Second Department held that when opposing a motion for summary judgment in a medical malpractice action,{**69 Misc 3d at 487} a nonmoving plaintiff need only address or rebut those elements of liability or causation prima facie established by the moving defendant (see Stukas v Streiter, 83 AD3d at 30). The Second Department explained that to require the nonmoving plaintiff to raise a triable issue of fact as to both the departure element and the causation element would "conflict[ ] with the principle, set forth in Alvarez [v Prospect Hosp., 68 NY2d 320 (1986),] . . . that a nonmoving party is required only to rebut the prima facie showing made by the moving party" (Stukas v Streiter, 83 AD3d at 30; see Alvarez, 68 NY2d at 324). The Court reasoned, "[i]t is neither logical nor fair to require the nonmoving plaintiff, who has previously alleged in the pleadings that the defendant's departure was a proximate cause of the claimed injuries, to come forward with evidence addressing an element that was never raised by the moving defendant" (Stukas v Streiter, 83 AD3d at 30). Thus, the Second Department held, "in a medical malpractice action, a 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, 83 AD3d at 30).^[FN2]

Since it decided Pullman, the Court of Appeals has not squarely addressed the nonmoving plaintiff's burden in opposing a defense motion for summary judgment in medical malpractice actions. But the First and Fourth Departments have since adopted the Second Department's approach in Stukas (see Bubar v Brodman, 177 AD3d 1358, 1359 [4th Dept 2019], rearg denied 179 AD3d 1558 [2020]; Barry v Lee, 180 AD3d 103, 106-107 [1st Dept 2019]).

This court's research has revealed no decision from the Third Department doing the [*5]same. In Webb v Albany Med. Ctr. (151 AD3d 1435, 1436-1437 [3d Dept 2017]), the Third Department cited Pullman and omitted the proximate cause prong when{**69 Misc 3d at 488} reciting plaintiff's burden in opposing defendant's summary judgment motion, but it nevertheless addressed the proximate cause prong when it evaluated plaintiff's response to defendant's summary judgment motion. More recently, in Furman v DeSimone (180 AD3d 1310, 1311 [3d Dept 2020]), the Third Department returned to its prior formulation of the rule: once a medical malpractice defendant has demonstrated prima facie entitlement to summary judgment on either element, the burden then shifts to the plaintiff to come forward with proof demonstrating both the defendant's deviation from accepted medical practice and that such deviation was the proximate cause of plaintiff's injuries (see also Fuller v Aberdale, 130 AD3d 1277, 1283 [3d Dept 2015]; Hoad v Dolkart, 127 AD3d 1310, 1312 [3d Dept 2015]; Conto v Lynch, 122 AD3d 1136, 1137-1138 [3d Dept 2014]; Longtemps v Oliva, 110 AD3d at 1318; Derusha v Sellig, 92 AD3d 1193, 1194 [3d Dept 2012]). Thus, while this court believes the Stukas approach adopted by the other departments is more in line with general summary judgment burdens, the two-pronged test requiring plaintiff to address both liability and proximate cause remains the controlling law in the Third Department.

Regardless of the controlling test, plaintiff has raised triable issues of fact regarding both whether defendants Dr. DiTursi and PNP Kelleher, as employees of both Cohoes Family Center and Harmony Mills Pediatrics, deviated from the accepted standard of medical care and whether such deviation caused harm to plaintiff. Plaintiff submitted, among other things, the affirmation of a board-certified pediatrician whose practice involves the diagnosis and treatment of scoliosis in minors.^[FN3] Plaintiff's expert opined that, based upon the allegations recounted below and to a reasonable degree of medical certainty, PNP Kelleher and Dr. DiTursi, individually and as employees of Cohoes Family Center and Harmony Mills Pediatrics, departed from good and accepted medical practice. And, as a result, plaintiff was caused to undergo surgery for untimely diagnosis and treatment of scoliosis.

According to plaintiff's mother, she lost confidence in Harmony Mills Pediatrics and, on January 24, 2017, she brought plaintiff to a new pediatrician, Dr. Schaeffer of Pond{**69 Misc 3d at 489} View Pediatrics, for an annual wellness visit. Prior to this visit, two school nurses had contacted plaintiff's mother and requested a doctor's confirmation that plaintiff did not have scoliosis. Upon his examination of plaintiff, Dr. Schaeffer found a 5-degree left thoracic and 10-degree left thoracolumbar scoliosis, which, according to plaintiff's expert, is a significant deviation from a healthy spine. Dr. Schaeffer ordered a scoliosis spine X ray, which was performed the next day. According to plaintiff's expert:

"The scoliosis series revealed an upper thoracic curvature measur[ing] [10] degrees with a left convexity, and an additional dextroscoliosis that measured 18 degrees. There was also a mild thoracic dextroscoliosis and a rotational levoscoliosis of the lumbar spine. There was a tilt of the shoulder girdle to the left side with the right side being 1.5 cm higher than the left and a pelvic tilt[ ] noted 0.8 cm higher on the right than the left."

Pond [*6]View Pediatrics advised plaintiff's mother of these results and referred plaintiff to an orthopedic surgeon, Dr. Allen Carl.

According to plaintiff's records, Dr. Carl saw plaintiff on February 21, 2017, at which time he documented a 5-degree right thoracic and 10-degree left lumbar prominence on plaintiff's forward bend test. Dr. Carl gave plaintiff a trial brace but advised that, at that point, surgery might be necessary. After bracing failed to correct plaintiff's scoliosis, plaintiff underwent surgery on November 27, 2017, consisting of an anterior spinal fusion on T11-L3 through a left thoracolumbar approach with expedient instrumentation and local rib graft, with instrumentation spanning T11-L3.

According to plaintiff's expert, adolescent scoliosis, for which plaintiff was ultimately diagnosed and surgically treated, progresses and develops gradually during adolescent growth spurts. For females, growth spurts generally occur about one year prior and one year subsequent to menarche. At her September 2011 pediatric visit, plaintiff had gained three inches in height since the year prior; in October 2012, she gained three inches; in August 2013, she gained two inches; in November 2014, she had gained only one inch; and, in December 2015, she had gained less than one inch in height. Plaintiff reached menarche in November 2014.

According to plaintiff's expert, "[t]he degree of curvature documented by Dr. Schaef[fer] when evaluating [plaintiff] in{**69 Misc 3d at 490} January of 2017 was significant and extreme, and far beyond the threshold at which the standard of care calls for ordering a scoliosis spine x-ray and referral to an orthopedist for diagnosis and treatment of scoliosis." And, "[t]he presence of observable scoliosis symptoms at that time is further substantiated by concerns raised on October 1, 2012 [that plaintiff] had an abnormal stance and gait," which are also signs of scoliosis. Plaintiff's expert examined photographs of plaintiff taken in April and June 2011 and August 2012, which "show an abnormal stance revealing a clear hip asymmetry . . . indicative of scoliosis."

"Given the totality of this evidence," plaintiff's expert opined that, "within a reasonable degree of medical certainty, it was more likely than not that a properly performed 'forward bending' exam would have yielded results indicative of scoliosis during the October 2012 examination, and it is more likely than not that scoliosis was in fact present." And, given the circumstances, "the standard of care would have called for a pediatrician to take measurements with a scoliometer and refer the patient for a scoliosis series (spine x-rays)."

Furthermore, plaintiff's expert noted, PNP Kelleher examined plaintiff for scoliosis at her annual wellness visits in August 2013, November 2014, and December 2015. During this time frame, plaintiff grew a total of six inches and her growth plateaued. According to plaintiff's expert, since adolescent scoliosis develops gradually,

"while it was more likely than not that visible curvature indicative of scoliosis was present during [Dr. DiTursi's] October 1, 2012 examination of [plaintiff], it is certain that the scoliosis diagnosed by Dr. Schaef[fer] in 2017 was present and observable in a 'forward bending' test or other scoliosis screening during the course of [PNP Kelleher's] examination of [plaintiff] in 2013, 2014, and 2015."

And, "[g]iven complaints concerning [plaintiff's] walking, the abnormality in her stance and hip symmetry, and the curvature of her spine," defendants' failure to observe signs of scoliosis during the forward bending test and to take further diagnostic steps, including use of a scoliometer and ordering spine X rays, "constituted departures from the standard of care for pediatric care." Plaintiff's expert concluded that it is "not possible" for plaintiff's scoliosis to have been unobservable in a properly performed examination in November 2014 and December 2015{**69 Misc 3d at 491} and, therefore, either Dr. DiTursi or PNP Kelleher "were not doing the forward bending tests, or were not doing them [*7]properly."

Plaintiff's expert also gave an opinion regarding causation. She stated that, because defendants deviated from accepted medical practice by failing to diagnose plaintiff's scoliosis during her growth in her early adolescent years, bracing when she was 16 or 17 years old failed to correct her condition. As a result, plaintiff's expert opined that plaintiff "was caused to undergo surgery for untimely diagnosed and untimely treated scoliosis."

In reply, defendants contend that causation is not at issue on this motion but, plaintiff having raised the issue, they cite portions of plaintiff's records demonstrating that she was noncompliant with Dr. Carl's nonsurgical recommendations. Plaintiff's orthopedic records note that Dr. Carl was initially hopeful that, because she was still growing, plaintiff's condition could be treated nonsurgically. When he saw plaintiff in February 2017, Dr. Carl recommended that plaintiff wear a nighttime brace, engage in physical therapy, and increase physical exercise. But, over the next several months, plaintiff was noncompliant with these recommendations and, by the spring of 2017, had completely stopped wearing the brace at night. As late as September 2017, Dr. Carl opined that, if plaintiff was willing to wear it, nighttime bracing was "still a potential viable [nonsurgical] alternative [because her] growth plate [was] still opened." Plaintiff, however, ultimately opted for surgery, which occurred in November 2017.

Defendants' argument in reply is of no moment. Notwithstanding plaintiff's alleged noncompliance with the available, nonsurgical treatment options when she was 16 or 17 years old, which itself may raise a question of fact on the issue of causation, plaintiff's expert's opinion that plaintiff's untimely diagnosis diminished the availability of successful nonsurgical treatment and proximately caused the need for surgery is sufficient to withstand summary judgment.

In viewing the evidence in the light most favorable to plaintiff as the nonmoving party, the court concludes that plaintiff has raised triable issues of fact as to both whether defendants deviated from the standard of medical care in failing to diagnose plaintiff with scoliosis, and whether any such deviation caused plaintiff to have to undergo surgery for untimely diagnosed and treated scoliosis.{**69 Misc 3d at 492}

Accordingly, it is ordered that defendants' motion for summary judgment is denied.