The following papers having been read on this motion: Notice of Motion (Yasin and Butani) 1 Notice of (Cross-) (Shutler and Mercy) 2 Opposition (Plaintiff) 3 Reply 4 Reply 5 Defendants Yasin and Butani move for an order, pursuant to CPLR §3212, seeking summary judgment dismissing Plaintiff’s complaint and any cross-claims asserted against them. Defendants Shutler and Mercy have cross-moved for the same relief. Plaintiff has opposed both motions, and the Court has received reply papers to both motions herein. Based upon the following, the motion by Defendants Yasin and Butani is hereby granted in its entirety; on the contrary, the motion by Defendants Shutler and Mercy is hereby denied as stated hereafter. This medical malpractice action arises from an epidural injection performed upon Plaintiff by Defendant Yasin while he was employed by Defendant Butani. After beginning treatment with Defendants Yasin and Defendant Butani’s facility in July 2016, Plaintiff was deemed to be a candidate for a cervical epidural steroid injection to alleviate the severe pain she was experiencing in her neck. On September 20, 2016, following an explanation of the procedure while utilizing a translator, Plaintiff underwent the procedure with Defendant Yasin early in the morning. Following the procedure, the only issue reported by Plaintiff was pain at the injection site. She was then discharged with instructions shortly thereafter that same morning. Later on in the morning of September 20, after experiencing increased pain in her neck and shortness of breath, Plaintiff went to Defendant Mercy and was seen in the emergency room by Defendant Shutler. She was discharged that afternoon without being admitted. Plaintiff then visited her primary care physician on September 21, 2016, and then was seen again by Defendant Yasin on September 23, 2016. It was at this appointment that Plaintiff was referred to return to Defendant Mercy to have a further workup done, given that her systems had continued and not alleviated to that point since the epidural injection was performed. Plaintiff returned then to Defendant Mercy on September 26, 2016, where she was diagnosed with an epidural hematoma, which required a cervical fusion surgery to remedy. As a result of this incident, Plaintiff commenced the instant lawsuit, alleging claims sounding in medical malpractice negligence and a lack of informed consent against Defendants Yasin, Butani, and Shutler as well as vicarious liability against Defendant Mercy. The within motions seek dismissal of all of these claims, as well as any cross-claims between Defendants Yasin and Butani and Defendants Shutler and Mercy. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1986). To make a prima facie showing, the motion must be supported by affidavit, a copy of the pleadings and by other available proof, such as depositions and written admissions. Id. Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, which require a trial of the action. Id.; see also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). The two essential elements of a medical malpractice claim are a deviation or departure from accepted practice and evidence that such a departure was a proximate cause of injury or damage. Taylor v. Nyack Hospital, 18 AD3d 537, 795 NYS2d 317 (2nd Dept., 2005). A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either there was no departure or that any departure was not a proximate cause of the injuries. Aronov v. Soukkary, 104 AD3d 623, 960 NYS2d 462 (2nd Dept., 2013). A lack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence. Walker v. Saint Vincent Catholic Medical Centers, 114 AD3d 669, 979 NYS2d 697 (2nd Dept., 2014). To establish a cause of action for malpractice based on a lack of informed consent, plaintiff must prove that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, 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 a proximate cause of the injury. Godel v. Goldstein, 155 AD3d 939, 64 NYS3d 127 (2nd Dept., 2017). The mere fact that a plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law. Schussheim v. Barazani, 136 AD3d 787, 24 NYS3d 756 (2nd Dept., 2016). A review of the motion filed by Defendants Yasin and Butani makes clear to this Court that summary judgment is appropriate as to these Defendants. In support of their motion, they have submitted the deposition transcript of Plaintiff, Defendant Yasin, and an expert affidavit from a doctor board certified in anesthesiology, amongst other things. The affidavit submitted by this expert, whose qualifications indicate that he is extremely well-versed in performing these types of epidural injections, includes a thorough review of the same record as that before this Court and does not find any departures on behalf of Defendants Yasin or Butani surrounding the treatment of Plaintiff herein. His opinion that designating Plaintiff as a candidate for the procedure given her presentment was proper and how Defendants Yasin and Butani went about obtaining consent to perform the procedure, including providing their own translator in addition to utilizing Plaintiff’s daughter to translate the salient information surrounding the procedure, and the breadth of the information provided, meets their burden to dismiss the informed consent claim against them. Moreover, his testimony as to how the procedure itself was performed, including where along the spine to perform the injection, the inability to pre-identify or avoid a blood vessel during the procedure, and the post-procedure treatment given to Plaintiff also adequately support the request for judgment as a matter of law. Thus, having satisfied their burden, the burden is then shifted to Plaintiff and Defendants Shutler and Mercy to demonstrate that a triable issue of fact still exists so as to deny the motion. Defendants Shutler and Mercy have not opposed the motion by Defendants Yasin and Butani whatsoever. Coinciding with this, while Plaintiff’s opposition papers appear to dispute the motion by Defendants Yasin and Butani along with the motion by Defendants Shutler and Mercy, upon closer review, the opposition papers submitted by Plaintiff do not address the motion by Defendants Yasin and Butani beyond cursory references and general statements. More importantly, the expert affidavits submitted by Plaintiff do not in any way refute or even mildly address the affidavit of the expert anesthesiologist submitted by Defendants Yasin and Butani. Given the absence of any true opposition to the motion by Plaintiff, a triable issue of fact cannot be found. Therefore, the motion by Defendants Yasin and Butani is hereby granted in full, Plaintiff’s first and second causes of action are hereby dismissed against these Defendants, and any cross-claims asserted against them are also dismissed forthwith. Turning now to the motion by Defendants Shutler and Mercy, the Court is also satisfied that they have met their initial burden on the motion. In support of their motion, they have submitted a copy of the deposition transcripts from Plaintiff, Defendant Yaskin, and Defendant Shutler, as well as two expert affidavits to support their motion. The first expert affidavit comes from a doctor qualified in emergency medicine, who opines that there was no departure by Defendant Shutler when he discharged Plaintiff without performing an MRI or CT Scan, since an epidural hematoma was considered as part of a differential diagnosis and it was appropriate to rule out same without performing imaging given her presentment. The second expert affidavit submitted in support of the motion is that of a neurological surgeon, who was more well-versed and familiar with epidural injections and resulting hematomas. This expert opinion echoed much of the same statements as the emergency medicine expert, concluding that an earlier diagnosis would not have altered the eventual outcome for Plaintiff and the need for a cervical fusion surgery to resolve the hematoma. Both experts also agree that there could not be any informed consent claim against Defendants Shutler and Mercy, since they did not perform the epidural injection and none of the treatment they performed required such advance consent. Given the state of the evidence presented in the motion by Defendants Shutler and Mercy, the burden is properly shifted to to Plaintiff to demonstrate the existence of a triable issue of fact. Plaintiff’s opposition presents two expert affidavits that directly contradict the opinions of the experts submitted by Defendants Shutler and Mercy. The first expert for Plaintiff is experienced in emergency medicine unequivocally states that an early diagnosis of a hematoma required some form of imaging, that the symptoms presented by Plaintiff could have certainly been attributed to a epidural hematoma, and that any early diagnosis of same may have prevented a more invasive surgical procedure from occurring in this case. In addition, the orthopedic expert affidavit submitted by Plaintiff echoes the same statements of her emergency medicine expert, further explaining the need for imaging to obtain an early diagnosis of the epidural hematoma, going so far as to call into question whether or not Defendant Shutler even considered it as part of his differential diagnosis as he has represented in this case. Neither of these experts have included an opinion on Plaintiff’s claim of lack of informed consent. Given this presentation in opposition to the motion by Plaintiff, this Court finds that a triable issue of fact exists as to whether or not Defendant Shutler, and by extension Defendant Mercy, departed from good an accepted medical practice when they failed to properly treat and diagnose Plaintiff’s epidural hematoma on September 20, 2016. Indeed, this Court has been presented with competing expert affidavits and finds that their respective credibility is best left for a jury to decide. Monsels v. Sinclair, 52 AD3d 487, 859 NYS2d 686 (2nd Dept., 2008). Thus, those portions of the motion by Defendant Shutler and Mercy seeking dismissal of Plaintiff’s first and third causes of action as asserted against them are hereby denied. On the other hand, the portion of the motion by Defendants Shutler and Mercy seeking dismissal of Plaintiff’s second cause of action as asserted against them is hereby granted and this claim is hereby dismissed forthwith. Defendants Yasin and Butani shall file and serve a copy of the within order with notice of entry upon Plaintiff and Defendant Shutler and Mercy within thirty (30) days from the date of this order. Thereafter, Plaintiff and Defendants Shutler and Butani shall appear as scheduled in the DCM Trial Part of Supreme Court, Nassau County, on April 21, 2021, at 9:30am. Finally, in light of the dismissal of the complaint against Defendants Yasin and Butani, the caption is hereby amended to read as follows: “DANIELA GARCIA, Plaintiff, against LUKAS J. SHUTLER, M.D. and MERCY MEDICAL CENTER.” All requests for relief not specifically addressed in the foregoing shall be deemed denied herein. This hereby constitutes the decision and order of this Court. Dated: February 8, 2021
