NORTH SHORE ORTHOPEDICS, et ale

Transcription

1 SHORT FORM ORDER SUPREME COURT STATE OF NEW YORK Present: HON. OHN P. DUNNE ustice TRIAL/IAS, PART 8 MICHAEL CISTNERAS Plaintiff Index No. 1295/01 Motion for summary judge Motion submission: 12/11/03 Seq. No. -against- NORTH SHORE ORTHOPEDICS, et ale Defendant( s) The following papers read on this motion: Notice of Motion... Answering Affidavits... Reply... Upon the foregoing papers, it is hereby ordered that the motion by defendants North Shore Orthopedics and Sports Medicine, P., and Kevin Vesey, M., pursuant to CPLR 3212 for summary judgment dismissing the complaint as to said defendants is denied for the following reasons: In this action, plaintiff seeks to recover damages arsing from defendants' care

2 and treatment of plaintiff's fractured right wrist during the period September 1, 1998 through Januar 11, Plaintiff was injured on August 30, 1998 at an outdoor barbeque at the home of a friend when the canvas "director" chair on which he was sitting collapsed causing him to fall backward and hit his head on a picnic table. By order ofthis court dated July , the action (index no /01) against the host of the barbeque, Steven Lynch was dismissed. After the fall, plaintiff was initially treated at the emergency room at Southside Hospital where X-Rays were taken of the right wrist. Plaintiff was first seen by defendant Dr. Vesey, who determined that plaintiff had sustained a minimally displaced fracture of the distal radius and immobilized his wrist in a short ar cast on September, A new short ar cast was applied on September 4, 1998 after plaintiff reported that a pencap had become lodged in the original cast. The short ar case was removed on October 13, 1998 whereafter Dr. Vesey recommended that plaintiff undergo a course of physical therapy which continued through January 11, Ultimately plaintiff was diagnosed with a hand/shoulder syndrome, also known as RSD i.e. reflex sympathetic dystrophy, secondary to his initial fracture, and was

3 referred by Dr. Vesey to a special pain facility known as the North Shore Surgery Center based upon plaintiffs subjective complaint's of continuous and progressive pain. his own admission, plaintiff did not follow though with the referral but saw another pain specialist, Dr.Farokh Maneksha on March 24, 1999, having "lost his taste" for defendant North Shore Orthopedics and Sports Medicine, P. C. At that time Dr. Maneksha diagnosed the plaintiff with RSD. In support of their motion for summary judgment dismissing the complaint defendants have submitted the affidavit of Philip Fontanetta, M.D., a physician board certified in the field of Orthopedic surgery, who states that "Dr. Vesey did not deviate from accepted standards of orthopedic practice in any of the care and treatment he provided to plaintiff, Michael Cistemas" and that the care and treatment provided by Dr. Vesey did not "cause or allow for the plaintiff s ultimate development of Reflex Sympathetic Dystrophy," a pain syndrome in which a person s own sympathetic nervous system abnormally responds to the onset of an injury. Additionally, Dr. Fontanetta opines inter alia that Dr. Vesey instituted "an appropriate treatment plan." During follow up visits plaintiff's fractured wrist was properly treated and monitored, x-rays taken throughout the course of the treatment continued to demonstrate that the bones were in satisfactory position and alignment and Dr. Vesey s recommendation that plaintiff consult with a pain specialist was timely and appropriate. As a result of plaintiff s failure to follow through with the referral in a timely manner, his RSD

4 condition was, in the words of Dr. Fontanetta "too far advanced to further respond to treatment" by the time he was examined by Dr. Maneksha in March of In a medical malpractice action, in opposing a defendant physician s summary judgment motion, the plaintiff must submit evidentiary facts or materials to rebut the movant's primafacie showing that the defendant physician was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact. General allegations of medical malpractice which are conclusory in nature and unsupported by competent evidence sufficient to establish the essential elements of the claim, are insufficient to defeat such a motion. Anderson Lamaute, 306 AD2d (2 Dept 2003). To meet these requirements in a medical malpractice context, a plaintiff must submit with his opposition papers expert medical opinion evidence demonstrating merit in his claim. Fiore Galang, 64 NY2d 999, 1001 (1985). In satisfaction ofthis obligation, plaintiff has submitted the affirmation of a board certified orthopedic surgeon which sets forth specific facts in the record on which his opinion is based and identifies the specific deviations from good and accepted practice which, in the expert's opinion, resulted in plaintiff's ultimate development of Reflex Sympathetic Dystrophy and limited function of the right hand and wrist. These deviations include Dr. Vesey s failure to recognize that plaintiff suffered an "unstable

5 fracture," failure to appropriately immobilize plaintiffs fracture by use of a long arm cast and failure to timely diagnose plaintiff's RSD. Plaintiffs expert states defendant physician "negligently failed to appropriately immobilize plaintiff s fracture by use of a long arm cast * * * The failure to apply the long ar cast resulted in continued pain and unsatisfactory healing of the fracture with loss of satisfactory position. In this setting the physical therapy ordered by defendant prevented the fracture from healing properly. As a consequence of these deviations, plaintiff developed RSD and has required extensive pain management treatment including nerve blocks and medications for pain. " In this regard, the expert further opines that "any alleged delay by plaintiff in seeking pain management treatment in 1999 did not cause plaintiff to develop RSD or change the prognosis for permanent symptoms and functional compromise. In the view of this court, the diverse and conflicting assessments of the experts regarding the alleged deviations from the accepted standard of care by defendants and the issue of causation present credibility issues that must be resolved by the trer of fact. Lambos Weintraub, 246 AD2d 356, (1 st Dept 1998). The Court notes that plaintiff has agreed to discontinue the second cause of action

6 of the complaint sounding in lack of informed consent. Therefore, the Second Cause of Action is discontinued. In light of the foregoing, Defendants motion is denied. It is, so Ordered. Dated: I t(/ ENTEREO MAR D4 COTY ft"h" ' CLERK'S.