The following e-filed documents, listed by NYSCEF document number (Motion 005) 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203 were read on this motion to/for JUDGMENT — SUMMARY. DECISION ORDER ON MOTION Upon the foregoing papers, Defendant, Rachel Marie Berenbaum, D.C. (“Dr. Berenbaum”) and Manhattan Sports Therapy,1 (“MST”) move, pursuant to CPLR §3212, for summary judgment dismissing plaintiff’s complaint. After oral argument, and upon review of the moving papers and opposition thereto, defendants’ motion is denied. Plaintiff’s complaint alleges 1) chiropractic malpractice by Dr. Berenbaum and her employer, MST; 2) negligent hiring and supervision by MST; 3) lack of informed consent by defendants; and 4) a derivative claim for loss of services/consortium on behalf of plaintiff’s spouse, Kellie Goldstein. A proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by submitting admissible evidence that demonstrates the absence of material issues of fact that would require a trial (see Alvarez v. Prospect Hosp., 68 NY2d 320 ([1986]); Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). In a medical malpractice action, a movant must provide evidentiary proof in the form of expert opinions and factual evidence establishing that the defendant complied with accepted standards of medical care and practice, obtained informed consent; and/or the defendant’s conduct was not a proximate cause of plaintiff’s alleged injuries (see N.Y. Public Health Law §2805-d; see also Alvarez v. Prospect Hosp., 68 N.Y.2d 325). Once the proponent makes a prima facie showing, the burden shifts to the opponent to demonstrate, by admissible evidence, the existence of a material issue of fact that requires resolution at trial. (see Zuckerman v. City of New York, 49 NY2d 557, 558-59 [1980]). As a threshold matter, the Court notes that the within motion is timely based on the Court’s order of August 10, 2023, following a Court conference held on this issue. In the case at bar, defendants seek summary judgment solely on the issue of causation and assert that plaintiff’s claims for chiropractic malpractice and lack of informed consent must be dismissed as a matter of law because Dr. Berenbaum did not proximately cause plaintiff’s alleged injuries. In support of the motion, the moving defendants submit the affidavits of Dr. Harold Pikus, who is board certified in Neurosurgery, and Dr. Joel Meyer, a board certified physician in Neuroradiology, each of whom opine within a reasonable degree of medical certainty as to the issue of causation. Each expert opines that the care and treatment rendered by defendants did not proximately cause the alleged injuries, and that plaintiff’s bilateral vertebral arterial injuries were spontaneous dissections, which were vascular in nature, and unrelated to Dr. Berenbaum’s chiropractic care and treatment. Dr. Pikus opines that the chiropractic care and treatment rendered by defendants proximately caused a traumatic vertebral artery dissection and stroke. First, relying on MRI imaging studies performed on March 31, 2017, October 17, 2017, December 5, 2017, and December 6, 2017, before and after treatment by Dr. Berenbaum, Dr. Pikus opines that plaintiff suffered spontaneous dissections caused by an undiagnosed arteriopathy, and not traumatic dissections caused by Dr. Berenbaum’s chiropractic treatment in this matter. Dr. Pikus further opines that these diagnostic results confirm that defendants’ treatment did not proximately cause plaintiff’s injuries. According to Dr. Pikus, traumatic dissections are very painful and require a significant amount of external force, and plaintiff did not describe experiencing any severe pain during or after Dr. Berenbaum’s treatment; nor did plaintiff describe any movements, acts or treatment on any of the treatment dates that were forceful, or that used the level of force that would be required to have caused the alleged injuries. In his expert affidavit, Dr. Meyer concurs with the opinion of Dr. Pikus, and opines that plaintiff was suffering from undiagnosed arteriopathy which placed him at risk for eventually developing a spontaneous dissection in either or both arteries. Dr. Meyer also opines that 1) the MRIs obtained on October of 2017, demonstrates that plaintiff had already suffered a right vertebral dissection; 2) the MRI taken on December 5th and 6th clearly demonstrates that the injuries to the left vertebral artery occurred after the chiropractic care at issue; 3) the injuries depicted in the October 2017 MRI through the December 2017 imaging show that there was no change, worsening, advancement or progression of the injuries in the area; and 4) ruled out the possibility of traumatic dissection based on plaintiff’s testimony that he did not suffer any pain during the chiropractic treatment, let alone severe pain. The Court finds that defendants have established their prima facie entitlement to summary judgment as a matter of law, since both experts agree that the October 17, 2017, December 5, 2017, and December 6, 2017 MRI’s show that each alleged injury occurred either prior to or after the subject treatment and did not proximately cause plaintiff’s injuries. Plaintiff, in opposition, submits the affirmation of an expert board certified in Neurology, whose name has been redacted. The expert opines to a reasonable degree of medical certainty, based on a review of the medical records, imaging studies and deposition testimony that, contrary to the opinion of defendants’ experts, there is nothing to suggest that the nonspecific lesions visualized on the March 2017 and October 2017 MRIs (those taken prior to the chiropractic care at issue), are indicative of vascular artery dissection or any other specific predisposition. The expert also opines that Dr. Berenbaum breached her duty of care to plaintiff by not informing him of the risks of dissections and stroke associated with cervical chiropractic manipulation (defendants argue that the opinion should be disregarded because he does not state that the lack of consent caused the injuries). The expert concludes, that “[f]or all the reasons set forth herein, I opine to a reasonable degree of medical certainty that defendant Berenbaum’s use of cervical traction, manipulation/adjustment, and force in treating [plaintiff] in November 2017, proximately caused his bilateral vertebral artery dissections and stroke diagnosed in early December 2017.” Based on the conflicting opinions of the respective experts, defendants’ motion is denied. “Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” because “[s]uch credibility issues can only be resolved by a jury” (Hayden v. Gordon, 91 AD3d 819, 821 [2d Dept 2012]; Feinberg v. Feit, 23 AD3d 517 (2d Dept 2005); Griffin v. Cerabona, 103 AD3d 420 [1st Dept 2013]). Further, given that triable issues of fact exist as to the nature of the care/treatment rendered to plaintiff by defendants, and whether such treatment by Dr. Berenbaum proximately caused plaintiff’s alleged injuries, dismissal is not warranted against Dr. Berenbaum’s employer, Madison Avenue Chiropractic P.C. s/h/a Manhattan Sports Therapy, under the doctrine of respondeat superior. In general, under the doctrine of respondeat superior, a hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the scope of employment (see Sessa v. Peconic Bay Medical Center, 200 AD3d 1085 [2d Dept 2021]). As to the branch of the motion seeking dismissal of plaintiff’s cause of action for lack of informed consent, defendants rely on Public Health Law §2805-d, and argue that no viable cause of action exists because a lack of informed consent claim requires that the treatment at issue must include an invasion of the physical integrity of the patient’s body. The Court disagrees. Public Health Law §2805-d [1] limits a cause of action sounding in informed consent brought against doctors, dentists and podiatrists to “those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body.” However, in the case at bar the statute does not apply, since defendant is a chiropractor and not a doctor, dentist or podiatrist. Notwithstanding this finding, a defendant is bound to obtain a patient’s informed consent under the common law (see Laskowitz v. CIBA Vision Corp., 215 AD2d 25 [2d Dept 1995]). In this regard, not only did Dr. Berenbaum admit that she did not warn plaintiff of the risk of stroke associated with chiropractic treatment, defendants failed to address the elements of a cause of action arising from the alleged lack of informed consent in their moving papers. As a result, defendants have failed to establish entitlement to judgment as a matter of law dismissing plaintiff’s cause of action for lack of informed consent. Finally, the identity of plaintiff’s expert should not have been redacted from the affirmation submitted in opposition to defendants’ motion. CPLR §3101(d) permits redaction of the identity of an expert physician in a medical malpractice action when opposing a summary judgment motion; however, in a chiropractic malpractice action the expert’s identity must be disclosed (see Rivera v. City of New York, 150 Misc 2d 566 [Sup Ct, NY County 2002]). Based on the foregoing, it is hereby ORDERED, that plaintiff is directed to disclose the identity of the expert Neurologist, in accordance with CPLR 3101(d), within thirty (30) days of service of a copy of this order with notice of entry; and it is further ORDERED, that defendants’ motion is otherwise denied; and it is further ORDERED, that within twenty (20) days of entry of this order, counsel for plaintiff shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk’s Office (60 Centre Street, Room 119); and it is further ORDERED, that service upon the Clerk of the Court and the Clerk of the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible a the “E-Filing” page on the court’s website at the address www.nycourts.gov/supctmanh). This constitutes the Decision and Order of the Court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: February 28, 2024
