Angel Medina, et. al., Plaintiffs,
New York City Health and Hospitals Corporation (Woodhull Medical and Mental Health Center), et. al., Defendants.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Sylvia Hinds-Radix, J.
Upon the foregoing papers, defendant Dr. John Hyun moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint insofar as asserted against him.
In this action sounding in negligence and medical malpractice, plaintiffs Andrew Medina (Andrew) and Angel Brita (Angel), infants by their mother and natural guardian, Marisol Medina (Medina), and Marisol Medina, individually, allege, inter alia, that defendants New York City Health and Hospitals Corporation (Woodhull Medical and Mental Health Center) [Woodhull] and Dr. Hyun failed to timely test the infant plaintiffs for the presence of elevated lead levels in their blood and, further, failed to provide guidance to their mother as to the prevention of lead poisoning in her children.  Plaintiffs allege that these failures were the proximate cause of the injuries suffered by the infant plaintiffs as a result of their exposure to lead in their home. Dr. Hyun now makes this motion for summary judgment.
The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted medical practice and evidence that such departure was a proximate cause of injury or damage ( see Holbrook v United Hospital Medical Center, 248 A.D.2d 358, 358-359 ; Bloom v City of New York, 202 A.D.2d 465 ). As in any other action, the proponent of a summary judgment motion in a medical malpractice case must make a prima facie showing of entitlement to judgment as a matter of law through the submission of admissible evidence sufficient to show the absence of any material issue of fact on any relevant issue raised by the pleadings (see Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 ; Zuckerman v City of New York, 49 N.Y.2d 557, 562 ; Stone v Continental Insurance Co., 234 A.D.2d 282, 284 ).
Moreover, in order to grant the drastic remedy of summary judgment "it must clearly appear that no material and triable issue of fact is presented .. issue finding rather than issue-determination is the key to [a motion for summary judgment]"' (Strychalski v Mekus, 54 A.D.2d 1068, 1069 , quoting, Sillman v Twentieth Century - Fox Film Corp., 3 N.Y.2d 395, 404 ). Finally, the evidence presented by the nonmoving party must be accepted as true and a decision on the motion must be made on the version of the facts most favorable to him or her (id). "Where there is any significant doubt whether there is a material triable issue of fact or where the material issue of fact is arguable' summary judgment must be denied" (Strychalski v Mekus, 54 A.D.2d at 1069, quoting, Moyer v Briggs, 47 A.D.2d 64, 66-67 ).
Applying the aforementioned principles to the case at bar, the court concludes that Dr. Hyun's motion must be denied.
It is beyond dispute that the infant plaintiffs, Andrew Medina and Angel Brito, tested with elevated blood lead levels when they were under the care of Dr. Hyun. Nor, at least for the purposes of this motion, does Dr. Hyun challenge the conclusion of Dr. Theodore Litsky that the infant plaintiffs suffered brain injury and resultant cognitive deficits as a result of their exposure to lead paint. Instead, it is Dr. Hyun's contention that his treatment of the infant plaintiffs was at all times appropriate and that, in any event, even if his negligence, as alleged by plaintiffs was accepted as true for the purposes of the motion, it was not the proximate cause of plaintiffs' injuries. For ease of discussion, the court will separately examine that claim as to each of the infant plaintiffs.
Andrew was born on December 8, 1993 at Woodhull. He was first seen by Dr. Hyun, who had a private practice near where the infant lived with his mother Marisol Medina, at one month old when he was sick with a cold. Following that doctor's visit, Andrew was seen by doctors at Woodhull three times for well baby check-ups and twice when he was sick, before he saw Dr. Hyun again on July 19, 1994, when he was nine months old. On that date, Andrew visited Dr. Hyun for a check-up required for participation in the "Special Supplemental Nutrition Program for Women, Infants and Children" (WIC program). The checkup included a blood test to determine Andrew's hematocrit level, as was required by the WIC program.
According to Andrew's mother, Marisol Medina, at these early visits at Woodhull and with Dr. Hyun, she was never asked about the condition of her apartment or given information about lead based paint and the dangers it could pose to children. Medina noted that the apartment which she and Andrew were living in at that time contained a lot of chipped and peeling paint.
At his deposition, Dr. Hyun testified that, while he did not have a clear recollection of his treatment of Andrew, it was not his practice to ask about the condition of his patient's home nor did he give guidance as to how to avoid exposure to lead. He did, however, routinely inquire of the mother as to whether her child put things in his or her mouth. Dr. Hyun also testified that it was not his practice to assess whether a particular child was at high risk for developing lead poisoning because "no one can know that."
On or about December 14, 1994, at Andrew's one-year-old doctor's visit at Woodhull, a blood level test was taken which revealed that Andrew had an elevated lead level of 25ug/dl. As required by law, the Department of Health was notified and, ...