Friedman v. Vitale

206 N.Y.S.3d 656

224 A.D.3d 888

Edward FRIEDMAN, appellant,

v.Michael G. VITALE, etc., et al, respondents.

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 16, 2023

February 28, 2024

Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY (Brian J. Isaac and Joshua Block of counsel), for appellant.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, NY (David P. Johnson and Deirdre E. Tracey of counsel), for respondents.

ANGELA G. IANNACCI, J.P., WILLIAM G. FORD, HELEN VOUTSINAS, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated September 28, 2021. The judgment, insofar as appealed from, upon an order of the same court dated September 13, 2021, granting that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging medical malpractice, is in favor of the defendants and against the plaintiff dismissing the cause of action alleging medical malpractice.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging medical malpractice is denied, and the order is modified accordingly.

In 2004, the plaintiff, then a child suffering from cerebral palsy, first presented to the defendant Michael G. Vitale, an orthopedic surgeon, for an evaluation of his gait and bilateral lower extremity contractures. Over the course of several years, Vitale administered Botox treatments to the plaintiff to, among other things, improve his gait. However, the plaintiff eventually developed a gait abnormality and "extreme" tightness in his hamstrings. As a result, the plaintiff had significant difficulties ambulating.

On December 8, 2008, the plaintiff was admitted to the defendant New York Presbyterian Hospital to undergo bilateral lower extremity surgery, including, inter alia, bilateral hamstring lengthening, performed by Vitale and the defendant Benjamin D. Roye, also an orthopedic surgeon. The surgery was intended to improve the plaintiff’s mobility and gait. Upon comple- tion of the surgery, Vitale and Roye applied bilateral long-leg casts to the plaintiff. In the days following the surgery, the pediatric anesthesiology team noted, among other things, postoperative bilateral weakness and sensory loss in the plaintiff’s lower extremities. The plaintiff’s long-leg casts were eventually removed and he was thereafter discharged from the hospital. However, after discharge, the plaintiff was noted to still have a diminished motor and sensory exam in his bilateral lower extremities and was unable to walk without assistance. After multiple follow-up visits, Vitale eventually confirmed that the plaintiff had suffered a nerve stretch injury during the surgery.

The plaintiff commenced this action, inter alia, to recover damages for medical malpractice against the defendants. The plaintiff alleged, among other things, that the defendants negligently performed the bilateral hamstring lengthening procedure by "excessively stretching" and "compressing" his nerves during the surgery, causing the nerve stretch injury, and, as a separate theory, that the defendants negligently failed to immediately diagnose the plaintiff’s nerve stretch injury and remove the long-leg casts after the plaintiff had complained of bilateral lower extremity numbness and weakness. The defendants moved for summary judgment dismissing the complaint. In support of the motion, the defendants submitted, inter alia, the affidavit of an expert physician board certified in orthopedic surgery. The plaintiff opposed the defendants’ motion, relying, in part, upon a redacted affidavit of an expert physician, also board certified in orthopedic surgery. By order dated September 13, 2021, the Supreme Court, among other things, granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging medical malpractice. A judgment was thereafter entered, upon the order, inter alia, in favor of the defendants and against the plaintiff dismissing the cause of action alleging medical malpractice. The plaintiff appeals.

[1–3] On a motion for summary judgment dismissing a medical malpractice cause of action, a defendant "has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (J.P. v. Patel, 195 A.D.3d 852, 853, 150 N.Y.S.3d 120 [internal quotation marks omitted]; see Martinez v. Orange Regional Med. Ctr., 203 A.D.3d 910, 165 N.Y.S.3d 573). "In order to sustain tills … burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s … bill of particulars" (Martinez v. Orange Regional Med. Ctr., 203 A.D.3d at 912, ...