The following papers read on this motion:Notice of Motion and Affidavit XAffirmation in Opposition XReply Affirmation XRELIEF REQUESTED The defendants, Stephen Onesti, M.D., (hereinafter referred to as “Dr. Onesti”), Krista Maniec, PA, (hereinafter referred to as “PA Maniec”), and Neurological Surgery, PC, move for an order pursuant to CPLR §3212 granting summary judgment to the defendant, PA Maniec. The plaintiffs submit opposition. The defendants submit a reply affirmation.The plaintiff, John Meringold, M.D., (hereinafter referred to as “Dr. Meringold”), initiated this action sounding in malpractice arising out of cervical surgery performed on June 8, 2015 at South Nassau Communities Hospital. The plaintiff claims, inter alia, that the surgery was a C7-TI laminectomy with decompression of the C8 nerve root, and the defendant, Dr. Onesti, the surgeon, was assisted by the defendant, PA Maniec. The plaintiff submits that it was determined by MRI taken months later, in October of 2015, that in fact a C6-C7 laminectomy was performed and not the C7-T1 level that was planed, and that the C7 nerve root was decompressed, not the C8 nerve root.The plaintiff alleges, by way of Verified Bill of Particulars, that the defendant, PA Maniec, failed to operate at the C7-T1 disc level, failed to decompress the C8 nerve root, failed to properly identify th C7-T1 level of the spine, failed to properly visualize the right C& and TI lamina, failed to request the assistance of a radiologist, and failed to appreciate the plaintiff’s degenerative disc disease, negligently performed a partial laminectomy and failed to notify the surgeon and others of surgical errors in a timely fashion. As a result of the defendant’s negligence, the plaintiff claims to have had to sustain three additional cervical surgeries and suffers injuries including an inability to swallow properly, making him an aspiration risk, suffered an extended duration of the compression of C8, and worsening neurological symptoms in his hand and thumb.APPLICABLE LAW“The elements of medical malpractice are (1) a deviation of departure from accepted medical practice, and (2) evidence that such departure was the proximate cause of injury” (Ortiz v. Wyckoff Heights Medical Center, 149 AD3d 1093, citing Sampson v. Contillo, 55 AD3d 588). “Thus, on a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby.” (Ortiz, supra, citing Bongiovanni v. Cavagnuolo, 138 AD12). In order “to defeat summary judgment, the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party’s prima facie showing.” (Ortiz, supra citing Stukas v. Streiter 83 AD3d 18).“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings.” (Miller v. Village of East Hampton, 98 AD3d 1007, citing Foster v. Herbert Slepoy Corp., 76 AD3d 210). The proponent of a motion for summary judgment does not satisfy this burden by merely pointing to evidentiary gaps in the plaintiff’s proof. (Nationwide Prop. Cas. v. Nestor, 6 AD3d 409). Only if the burden is met does it shift to the opposing party to proffer evidence in admissible form raising a triable issue of fact. (Alvarez, supra; Zuckerman, supra; Friends of Animals v. Associates Fur Mfrs., 46 NY2d 1065; Autiello v. Cummins, 66 AD3d 1072; and Horton v. Warden, 32 AD3d 570). Should the proponent of a motion for summary judgment fail to meet its initial burden of demonstrating entitlement to summary judgment as a matter of law, (Alvarez, supra), the burden does not shift to the opposing party to establish the existence of a material fact which would require a trial, (Greenberg v. Coronet Prop. Co., 167 AD2d 291), and as so, the court would not need to address the sufficiency of the opposition papers. (Winegrad, supra, Kouyate v. Chowdhury, 76 AD3d 547; Perez v. Johnson, 72 AD3d 777; Safer v. Sibersweig, 70 AD3d 921; Geba v. Obermeyer, 38 AD3d 597; Shacker v. County of Orange, 33 AD3d 903).In Ortiz, supra a patient and his wife brought a medical malpractice action against medical providers claiming that the physician’s assistant failed to diagnose the patient with endocarditis during an emergency visit. The court found that the defendants established their prima facie entitlement to “judgment as a matter of law by submitting testimonial, documentary, and expert affirmation evidence demonstrating that they did not depart from good and accepted medical practice in rendering care to the plaintiff, and that further diagnostic testing was unwarranted given the non-specific symptoms, his stable vital signs, and his normal physical examination.” The court held that the expert opinion offered in opposition to the motion was insufficient to raise a triable issue of fact as the “opinion was conclusory, speculative and based largely on hindsight reasoning.”In a medical malpractice action brought against the hospital, Winthrop, and the physician’s assistant, Michelle A. Beirouti, the court found that “Beirouti and Winthrop demonstrated their prima facie entitlement to judgment as a matter of law through their affirmation of an expert, who opined that the care and treatment provided to the plaintiff by Beirouti and other hospital staff was at all times rendered and the direction and under the control and supervision of the plaintiff’s private attending physician, that the order to place the plaintiff on a regular diet was not contraindicated by normal medical practice, and that neither Beirouti and other members of the hospital staff committed any independent acts of negligence.” (Motto v. Beirouti, 90 AD3d 723, citing 10 NYCRR 94.2[f]; Cham v. St. Mary’s Hosp. of Brooklyn, 72 AD3d 1003, Vaccaro v. St. Vincent’s Med. Ctr., 71 AD3d 1000). The court found that the plaintiff, in opposition, through an expert’s affirmation and the parties’ deposition testimony, raised triable issues of fact as to “whether Beirouti committed an independent act of negligence in writing the order placing the plaintiff on a regular diet.” (Motto, supra).It is well established that a PA may perform medical services only when under the supervision of a physician. Education Law §6542(1) provides as follows:“1. Notwithstanding any other provision of law, a physician assistant may perform medical services, but only when under the supervision of a physician and only when such acts and duties are assigned to him or her are within the scope of practice of such supervising physician.” (emphasis added)10 NYCRR 94.2(f), Physicians-Assistants-and-Specialist-Assistants; Title; Section 94.2-Supervision and Scope of Duties, provides as follows:“(f) A physician supervising or employing a licensed physician assistant or registered specialist assistant shall remain medically responsible for the medical services performed by the licensed physician assistant or registered specialist assistant whom such physician supervises or employs.” (emphasis added)The court in Motto, supra stated that “[w]hile defendant claims that the language in 10 NYCRR 94.2[f] that a ‘physician shall remain medically responsible for the medical services performed by the physician’s assistant’ (emphasis added) does not equate with a legal responsibility, such that the physician would not be responsible for the negligence or medical malpractice of the physician’s's assistant, the court disagrees. The term ‘medically responsible’ should be construed to included acts of negligence and medical malpractice allegedly committed by a physician’s assistant supervised or employed by the physician.”DISCUSSIONThe defendant, PA Maniec, argues that she is entitled to summary judgment as she was a physician’s assistant working under the direct supervision of Dr. Onesti, who is “medically responsible for the medical services performed by the licensed physician assistant,” citing 10 NYCRR 94.2(f). The defendant submits an affirmation on behalf of Robert Bakos M.D., who opines that PA Maniec did not deviate from the standard of care for a physician assistant. Dr. Bakos referred to the parties’ deposition testimony and points out that Dr. Onesti testified that PA Maniec worked under his supervision, that Dr Onesti is ultimately responsible for all decisions and treatment, that he informed the operative team that the level of surgery had been verified, and there was no discussion with anyone as to whether or not he was at the correct site. Dr Bakos provides that neurosurgeons do not rely on physician assistants to determined whether they have ascertained the correct level in spinal surgery, and at the case at bar, there is no evidence that Dr. Onesti did. Additionally, Dr. Bakos provides that there is no evidence that Dr. Onesti gave any orders or instructions to PA Maniec that were “obviously contraindicated that a reasonable physician assistant would be expected to question them.” Dr. Bakos further opines that PA did not cause any of the injuries described in the bill of particulars.Here the defendant, PA Maniec, demonstrated her prima facie entitlement to judgment as a matter of law through their affirmation of an expert, who opined that the care and treatment provided to the plaintiff by PA Maniec was at all times rendered and the direction and under the control and supervision of Dr. Onesti, that there was no evidence that any instructions by PA Maniec were contraindicated by normal medical practice, and that PA Maniec did not commit any independent acts of negligence. The plaintiff, in opposition, failed to raise a triable issue of fact as to whether the defendant, PA Maniec, committed an independent act of negligence, or whether the defendant, PA Maniec, deviated from the standard of care for a physician assistant. The plaintiff’s reliance on plaintiff’s expert’s affirmation by Dr. Alexios Apazidis, and reference to the parties’ deposition testimony, and Dr. Onesti’s Operative Report, indicating that “we,” denoting members of the operating team, to wit, including PA Maniec, performed the dissection, were at the correct level, drilled into the facet complex following the course of the nerve route, is insufficient to demonstrate that PA Maniec exercised independent medical judgment as to whether the correct level was achieved, or that she was not acting under the supervision of Dr. Onesti, or that her action was a proximate cause of the claimed injuries.CONCLUSIONIn light of the foregoing, it is herebyORDERED that the defendant’s motion is granted and therefore, the above action, as and against the defendant, PA Maniec, is discontinued and the action is amended accordingly, and therefore, it is hereby furtherORDERED that the caption is amended as follows:John Meringold, M.D. and Margaret Meringold, Plaintiffs v. Stephen Onesti, M.D., and Neurological Surgery, PC, Defendants.ENTER:Dated: April 16, 2018
