Upon the following papers read on defendants Daniel Brandenstein, M.D., Northwell Health Physician Partners Orthopedic Institute at Bay Shore, Andrew Goodwille, M.D., Northwell Health Physician Partners Orthopedic Institute at Great Neck, and Northwell Health, [*2]Inc.'s motion for summary judgment dismissing plaintiff's complaint as asserted against them: NYSCEF documents 1 thru 134; it is hereby

ORDERED moving defendants, Daniel Brandenstein, M.D., Northwell Health Physician Partners Orthopedic Institute at Bay Shore, Andrew Goodwille, M.D., Northwell Health Physician Partners Orthopedic Institute at Great Neck, and Northwell Health, Inc.'s, motion for summary judgment dismissing plaintiff's complaint as asserted against them is denied as to the first cause of action; and it is

ORDERED defendants' motion is granted as to the second cause of action lack of informed consent; and it is

ORDERED defendants' motion is granted as to the third cause of action negligence in hiring or granting privileges to medical personnel.

Plaintiff, Jenny Forlano, commenced this action on January 4, 2022, by filing a summons and complaint alleging medical malpractice, lack of informed consent, and as to defendant Northwell Health, Inc., negligence in hiring or granting privileges to medical personnel. Plaintiff's primary allegations, as to the moving defendants, allege that Dr. Daniel Brandenstein and Dr. Andrew Goodwille, both board-certified orthopedic surgeons, and their affiliated institutions Northwell Health Physician Partners Orthopedic Institute at Bay Shore, Northwell Physician Partners Orthopedic Institute at Great Neck and Northwell Health, Inc. failed to diagnose an infection in her left hip joint or space that led to septic arthritis, osteomyelitis, and ultimately total left hip replacement. Moving defendants answered January 26, 2022, February 28, 2022, and March 3. 2022. Discovery is complete, and a note of issue was filed on December 24, 2024.

Defendants Daniel Brandenstein, M.D., Northwell Health Physician Partners Orthopedic Institute at Bay Shore, Andrew Goodwille, M.D., Northwell Health Physician Partners Orthopedic Institute at Great Neck and Northwell Health, Inc. now move for summary judgment pursuant to CPLR 3212 dismissing plaintiff's complaint as asserted against them. In support of the motion, moving defendants, submit, among other things, the pleadings, plaintiff's medical records, an affirmation of counsel, a memorandum of law, the deposition transcripts of plaintiff, Dr. Brandenstein, and Dr. Goodwille, and the expert affirmation of Nirmal C. Tejwani, M.D., a board-certified orthopedic surgeon.

Plaintiff testified and medical records show that prior to her allegations of medical malpractice plaintiff was involved in several motor vehicle accidents which caused pain and injury to her neck and back. She had been seen by pain management specialists, chiropractors, and other physicians and suffered from degenerative disc syndrome, sciatica, and a bulging disc in her neck. She used various pain medications including methadone.

On August 26, 2019, plaintiff presented at Huntington Hospital emergency department with complaints of pain in her left groin area with intermittent radiation to her buttocks and down her left leg. She reported that she had fallen or stepped off her bed three days before while cleaning her ceiling. Plaintiff's deposition testimony indicates she was attempting to fix a poster. X-rays were reported as unremarkable. Plaintiff was diagnosed with sciatica (pain going down the left leg from the lower back) and advised to follow-up with her primary care physician in 24 to 48 hours, take Ibuprofen as needed, and see an orthopedic spine specialist as well as neurosurgeon Dr. Lau in one week.

On August 29, 2019, Dr. Weingarten at Comprehensive Pain Management ordered an MRI without contrast of plaintiff's cervical and lumber spine as well as her left hip and left leg.

On August 31, 2019, plaintiff re-presented at Huntington Hospital emergency department with left groin pain now radiating to her left foot. X-rays were reported as revealing no fracture. Plaintiff was discharged with instructions for Motrin and Naproxen, follow-up with her primary care physician, given crutches and follow-up with a Dr. Ashley.

On September 4, 2019, plaintiff was seen by her pain management physician, Dr. Weingarten, and advised him of her groin pain and her two emergency department visits.

On September 9, 2019, defendant Zwanger & Pesiri performed an MRI of plaintiff's left hip and thigh. The MRI was read by defendant Dr. Darren M. Buono. Dr. Buono reported a "prominent left hip joint effusion" (an effusion is a condition that causes excess fluid to collect around a joint). Dr. Buono also reported "significant left greater trochanteric bursitis" (an inflammation of the outside hip bursa) and trace effusion in the left knee joint. Significant "muscle edema" (a build-up of fluid) was seen more pronounced in plaintiff's adductor muscles. Dr. Buono reported that the MRI suggested a "high-grade strain or partial tear." He reported edema in the iliopsoas muscle (the major flexor of the hip joint), quadriceps muscles, and plaintiff's hamstring muscles. Dr. Buono also reported mild bilateral osteoarthrosis with peripheral osteophytes and degenerative left hip labral tears. He could not rule out myositis (an inflammation affecting the muscles, usually caused by injury, statins, infection, muscle disease, or autoimmune disease).

On September 11, 2019, defendant Zwanger & Pesiri performed an MRI of plaintiff's lumbar spine. Dr. Buono interpreted the results an reported a disc herniation with mild central canal stenosis at L1-L2 and a shallow disc bulge with mild right foraminal stenosis, and mild degenerative changes in the lumber spine.

On September 13, 2019, plaintiff was seen by Dr. Edward Strogach of the Huntington Medical Group for left hip pain. Dr. Strogach noted a decrease range of motion in plaintiff's lower extremity and tenderness in her left hip upon rotation. He reviewed the MRI and his impression was bursitis in the left hip as well as a tear of the left acetabular labrum, based upon the reported stepping off the bed. Dr. Strogach referred plaintiff to an orthopedic surgeon. On the same day, September 13, 2019, plaintiff saw P.A. Danielski, an orthopedic surgery physician assistant who diagnosed plaintiff with adductor tendinitis and left adductor tear. P.A. Danielski documented a large hematoma from plaintiff's left proximal hip to her thigh and referred plaintiff to physical therapy to massage that area. He prescribed Tramadol and Prednisone, and scheduled a visit on September 27, 2019, for follow-up.

On September 18, 2019, plaintiff was seen by Dr. Fyman at Comprehensive Pain Management for follow-up of her left hip, leg and groin pain. Dr. Fyman documented that plaintiff complained of low back pain, left knee pain, and that plaintiff had fallen off a stool four weeks earlier.

On September 19, 2019, plaintiff was seen by defendant Dr. Brandenstein, a board-certified spinal surgeon, at defendant Northwell Health Physician Partners Orthopedic Institute at Bay Shore. Plaintiff reported that she had back, left hip/buttock pain, and left groin pain since August 30, 2019. Dr. Brandenstein documented that plaintiff reported falling off her bed, had sharp pain upon impact with the floor, and was now worse with sharp pain and cramping. He noted plaintiff complained of left knee pain, that plaintiff saw another surgeon who recommended non-operative management, but plaintiff had not tried physical therapy, chiropractic or pain management. Dr. Brandenstein documented plaintiff was taking Celebrex and Prednisone for pain, had a history of spinal stenosis and was ambulating with a walker. Dr. [*3]Brandenstein's physical examination found plaintiff's musculoskeletal strength was maintained and no motor deficit. He noted tenderness of plaintiff's left hip and knee as well as pain on rotation. Dr. Brandenstein testified at his deposition that his findings upon physical exam suggested bursitis or a patellar tendinitis and/or muscular injury given plaintiff's fall. X-rays were taken and Dr. Brandenstein testified that he reviewed the MRI and the report did not suggest infection. Dr. Brandenstein recommended follow-up with a hip specialist at Southside Hospital for evaluation and consideration of a hip aspiration to ensure there was no underlying infection. Dr. Brandenstein testified that he did not suspect infection because of lack of fever, no history of infection and/or open wound, and that plaintiff reported that she fell from a bed. Plaintiff did not see Dr. Brandenstein after September 19, 2019.

On September 26, 2019, plaintiff was seen by defendant Andrew Goodwillie, M.D., a board-certified orthopedic surgeon who specializes in sports medicine at defendant Northwell Health Physical Partners Orthopedic Institute at Great Neck. Plaintiff complained of left groin pain for five weeks and reported she was evaluated at Huntington Hospital with a torn muscle. Dr. Goodwillie documented leg swelling that had resolved after massage, and that plaintiff was feeling feverish and had chills. He reviewed the MRI report of September 9, 2019, and the images themselves. He noted severe soft tissue swelling and edema within the hip. DR. Goodwillie was concerned with sepsis in the joint, which was outside of his specialty in sports medicine, so he contacted two other orthopedic surgeons specializing in joint replacement Dr. Rasquinha and Dr. Kenan. He ordered blood testing for Erythrocyte Sedimentation Rate (ESR) and C-Reactive Protein (CRP). Dr. Goodwillie's notes indicate that aspiration by interventional radiology or formal debridement be considered and discussed with Dr. Kenan, who specializes in musculoskeletal oncology. Plaintiff did not see defendant Dr. Goodwillie again.

On September 27, 2019, plaintiff presented at Huntington Hospital Emergency Department for a third time. She had lab work done on September 27, 2019, but before she could see Dr. Kenan, she was taken by ambulance to Huntington Hospital for left leg swelling and pain down to her foot. At Huntington Hospital plaintiff had a temperature of 101.4 and a small wound on the back of her thigh surrounded by redness. Plaintiff reported intermittent fevers. She was admitted and an MRI on September 29, 2019, revealed severe left hip osteoarthritis with findings highly suggestive septic arthritis and associated osteomyelitis.

On September 30, 2019, a CT-guided aspiration was performed at Huntington Hospital of the left hip adductor muscle. Plaintiff was treated with IV antibiotics and transferred to Long Island Jewish Medical Center, under Dr. Kenan's service.

Plaintiff was treated at Long Island Jewish Medical Center from October 1, 2019 to October 24, 2019. Her left hip underwent incision and drainage, hemiarthroplasty (a partial hip replacement wherein the femoral head [ball] is replaced while leaving the acetabulum [socket] intact), and placement of an antibiotic spacer. Pathology from October 5, 2019, revealed acute and chronic osteomyelitis of the left femoral head. On October 8, 2019, a CT-guided drainage of fluid in the left hip was done, and plaintiff was placed on a six-week course of IV antibiotics.

On October 24, 2019, plaintiff was transferred to a rehabilitation facility, with follow-up with an infectious disease specialist. IV antibiotics were changed to oral antibiotics until November 15, 2019.

In June of 2020, plaintiff was admitted to Long Island Jewish Medical Center for stage 2 of the revision of left hip arthroplasty wherein hardware was removed. She testified she was discharged a week later, with no antibiotics and was going to physical therapy on an outpatient [*4]basis. She now walks without assistance.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (see Winegrad v New York Univ. Med. Ctr., supra). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (see CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, evidence must be viewed in the light most favorable to the nonmoving party (see Moonilal v Roman Catholic Church of St. Mary Gate of Heaven, 225 AD3d 592, 206 NYS3d 686 [2d Dept 2024]; Morejon v New York City Tr. Auth., 216 AD3d 134, 191 NYS3d 427 [2d Dept 2023]).

Healthcare professionals must exercise due care in caring for patients (see e.g. Nestorowich v Ricotta, 97 NY2d 393, 740 NYS2d 668 [2002]). "The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of medical practice, and evidence that such deviation or departure was a proximate cause of injury or damage" (E.K. v Tovar, 185 AD3d 803, 127 NYS3d 580 [2d Dept 2020]; see Messeroux v Maimonides Med. Ctr., 181 AD3d 583, 121 NYS3d 136 [2d Dept 2020]). To meet its prima facie burden on summary judgment, a defendant in a medical malpractice action must show either that it "did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries" (Joyner v Middletown Med., P.C., 183 AD3d 593, 594, 123 NYS3d 169, 171 [2d Dept 2020]; see Castillo v Surasi, 181 AD3d 786, 121 NYS3d 291 [2d Dept 2020]). In opposition, a plaintiff must "raise a triable issue of fact regarding the element or elements on which the defendant has made its prima facie showing" (Aliosha v Ostad, 153 AD3d 591, 61 NYS3d 55 [2d Dept 2017]; see Stukas v Streiter, 83 AD3d 18, 918 NYS2d 176 [2d Dept 2011]).

As to the cause of action for lack of informed consent, plaintiffs must prove that the person providing the professional treatment failed to disclose alternatives and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and that a reasonable medical practitioner would have disclosed in the same circumstances, that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and that the lack of informed consent is the proximate cause of the injury (Godel v Goldstein, 155 AD3d 939, 64 NYS2d 127 [2d Dept 2017]).

Here, moving defendants have established their prima facie entitlement to summary judgment based upon the expert affirmation of Dr. Nirmal C. Tejwani, a board-certified orthopedic surgeon. Dr. Tejwani opines that all of the care and treatment by Dr. Brandenstein and Dr. Goodwillie was at all times entirely appropriate and within the standard of care. He opines that nothing either doctor did caused any of the alleged injuries claimed. Dr. Tejwani further opines that even if plaintiff had undergone an aspiration on September 26, 2019, the day she saw Dr. Goodwillie, "it would not have made a difference as the infection had already [*5]occurred and the infection was too far gone." "She would have already required a hip replacement." He opines that even if the infection were found on September 19, 2019, by Dr. Brandenstein, "it was most likely already too much destruction and hip replacement would have been needed at even (sic) at that time." Finally, Dr. Tejwani concludes that within a reasonable degree of medical certainty that there were no departures from accepted standards of care in the treatment rendered at any time by Dr. Brandenstein, Dr. Goodwillie, or any of the institutions at which plaintiff was seen and moreover, none of plaintiff's injuries were caused or contributed to by any of the moving defendants.

As to informed consent no allegation exists that Dr. Brandenstein or Dr. Goodwillie rendering any treatment to plaintiff that amounted to affirmative violation of her physical integrity that cause injury (Brady v Westchester County Healthcare Corp., 78 AD3d 1097, 912 NYS2d 104 [2d Dept 2010]). Accordingly, plaintiff's second cause of action is dismissed against the moving defendants.

Plaintiff's third cause of action alleges negligent hiring, retention and credentialing. Dr. Tejwani has opined that there was no negligence by Dr. Brandenstein and Dr. Goodwillie. As there are no allegations that they were unqualified, plaintiff's third cause of action is also dismissed.

In opposition, plaintiff submits, among other things, an affirmation of counsel and an expert affidavit of a board-certified orthopedic surgeon. Plaintiff's expert opines that plaintiff's presented to both orthopedists with signs and symptoms of infection, yet neither orthopedist appreciated the degree of urgency of her condition nor referred her to the emergency room for immediate evaluation and treatment, including hip aspiration. Plaintiff's expert specifically opines that defendants deviated from the accepted standards of care in failing to appreciate plaintiff's clear signs and symptoms of infection and send her to the emergency room for urgent evaluation and treatment, including hip aspiration. Plaintiff's expert further opines that these deviations from the accepted standards of care caused and/or were substantially contributing factors to plaintiff's injuries, including the need for the total hip replacement. Based upon the differing opinions of the experts summary judgment as to the first cause od action is not appropriate here.