Defendant Jacob Rozbruch, M.D. appeals from the order of the Supreme Court, New York County (Alice Schlesinger, J.), entered July 21, 2010, which, to the extent appealed from as limited by the briefs, held his motion for summary judgment in abeyance pending the submission of further specified papers, and from the order, same court and Justice, entered on or about January 20, 2011, which, to the extent appealed from, denied so much of his motion for summary judgment as sought dismissal of plaintiff's claim that the left knee replacement surgery was contraindicated.
The opinion of the court was delivered by: Sweeny, J.
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on January 3, 2012
Richard T. Andrias, J.P. John W. Sweeny, Jr. Karla Moskowitz Rosalyn H. Richter Nelson R. Roman, JJ.
This medical malpractice action requires us to refine the scope of supplemental submissions on motions for summary judgment.
Plaintiff is an 80-year-old woman with a long history of orthopedic and vascular problems. She has been treated over the years by a number of physicians in various medical disciplines, including defendant, an orthopedic surgeon. Defendant Jacob Rozbruch, M.D. treated plaintiff for a variety of orthopedic conditions and performed a number of surgeries, including a 2001 elbow fracture repair, a 2001 total hip replacement, a 2003 total right knee replacement and a 2004 total left knee replacement, the latter being the subject of this litigation.
On November 14, 2001, at a follow-up visit concerning plaintiff's hip replacement surgery, defendant observed that plaintiff had limited range of motion in the lower extremities. X rays revealed end-stage osteoarthritis to the right knee, and defendant recommended bilateral knee replacement surgery. Plaintiff did not have surgery at that time but returned to defendant's office in September 2003, complaining of severe pain in her right knee. Defendant again recommended bilateral knee replacement surgery, and, on October 13, 2003, a right knee replacement was performed at Beth Israel Medical Center.
During post-surgical rehabilitation for the right knee replacement, it was noted that plaintiff suffered numbness of the left lower extremity, which condition had apparently commenced prior to the right knee surgery. Defendant performed some tests and, on November 11, 2004, recommended that plaintiff also undergo left knee replacement surgery. On March 12, 2004, defendant noted a plan to schedule the left knee replacement surgery for May, following preoperative clearance by plaintiff's internist and a consult by a foot specialist.
On June 7, 2004, defendant performed a total left knee replacement on plaintiff at Beth Israel. On June 11, a Beth Israel physical therapist observed swelling on plaintiff's left leg, which was similar to that observed after the surgery on her right knee. This swelling continued to increase and in December 2004 plaintiff's vascular surgeon, Dr. Haveson, noted that he was "mystified" by the swelling. Plaintiff thereafter was treated by a number of different medical providers for this condition throughout 2005 and into 2006. The reports of at least two of these providers attributed her condition to the left knee surgery.
Plaintiff commenced this medical malpractice action on or about November 7, 2006. In her bill of particulars, plaintiff alleged, inter alia, that defendant doctor was "careless, unskillful and negligent in failing to pay sufficient heed to plaintiff's prior history . . . in failing to timely and properly assess the vascular status of the left lower extremity ...