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.
Mazzarelli, J.P., Catterson, DeGrasse, Abdus-Salaam, Roman, JJ.
Order, Supreme Court, New York County (Joan B. Lobis, J.), entered on or about November 3, 2010, which, insofar as appealed from as limited by the briefs, denied the branch of the motion of defendants, Martin Camins, M.D., and Mt. Sinai Medical Center, for summary judgment dismissing the medical malpractice cause of action, affirmed, without costs.
On April 11, 2006, defendant Dr. Martin Camins performed surgery upon plaintiff Joseph Valenti's cervical spine at defendant Mt. Sinai Medical Center. Plaintiff had previously been diagnosed with a disc herniation at the C4-C5 level with severe canal stenosis and spinal cord compression, degenerative changes with canal stenosis at the C5-C6 level as well as an increased signal at the T2 level of the spinal cord. These spinal abnormalities had caused plaintiff to experience numbness and pain on the left side of his body, his face and his penis, and an inability to obtain an erection. During the surgery, defendant Dr. Camins performed cervical diskectomies at C4-C5 and C5-C6, and a C5 vertebrectomy with placement of a cervical cage and plate. Dr. Camins secured the plate by inserting two 13mm screws.
Two months after the surgery, plaintiff continued to feel some pain in the area of his throat. Dr. Camins ordered a follow-up X ray of plaintiff's cervical spine. The report interpreting the X ray was prepared by Dr. Michael Rothman on June 12, 2006, and stated that "[plaintiff] is soft tissue ACDF, plate and screw fixation from C4 through C7 with an intervening metallic cage and partial corpectomies at C5 and C6 . . . The superior screws overlie the inferior C4 vertebral body. The inferior screws appear to overlie the C6-7 disc space. The exact position is uncertain and correlation with CT scan is suggested." Three days later, Dr. Camins wrote a letter to Dr. Mahesh Chhabria, plaintiff's neurologist, which stated that "[o]n June 12, 2006, a routine cervical spine radiograph was performed to assess [plaintiff's] cervical spine hardware. It appears that at the C7 level the screws are backing out. In view of that, I have recommended that we take the patient to the operating room suite to re-position his plate and screws." The corrective surgery was performed, in two stages, on June 27, 2006. The operative report for the first stage stated that "[a]fter the previously placed plate had been visualized, it was obvious that there was screw back out at the C7 level."
Plaintiff commenced this action seeking damages for medical malpractice and lack of informed consent. In his bill of particulars, plaintiff claimed that Dr. Camins was negligent in, inter alia, his "improper placement of orthopedic hardware." The bill did not specify where such hardware was allegedly improperly placed. At Dr. Camins' deposition, however, plaintiff's counsel asked him multiple questions about the fact that the X ray report from Dr. Rothman referred to the C7 level. Counsel also asked numerous questions about defendant's own letter to Dr. Chhabria, as well as the operative report regarding the first stage of the second surgery. Both of these documents indicated that there was a screw back out at the C7 level. Dr. Camins acknowledged the references to C7, but contended that this was a mistake, and that the documents should have stated C6.
Plaintiff also took the deposition of nonparty Dr. Harshpal Singh, who assisted Dr. Camins in the second surgery. Dr. Singh was asked a multitude of questions about the precise placement of the screws during the first surgery. He acknowledged that the operative report for the second surgery stated that a screw had been placed at the C7 level. However, he also surmised that this was a typographical error because the operative report for the first surgery did not indicate that a screw had been placed there.
At the close of discovery, defendants moved for summary judgment. They supported the motion with the affirmation of Douglas Cohen, M.D., a spinal surgeon. Dr. Cohen reviewed the records regarding Camins's diagnosis of plaintiff and the two surgeries he performed on plaintiff. He opined that Dr. Camins properly obtained plaintiff's informed consent. He also stated that everything Camins had done was in accordance with good and accepted medical and surgical practice. Further, he asserted that screw back out is a well-known and accepted complication of cervical spinal fusion surgery that can occur even with proper surgical technique and appropriate selection and placement of a cervical plate and screws. Dr. Cohen did not discuss where Camins placed the screws and whether such placement necessitated the second surgery. However, he did state in a footnote that, according to Dr. Camins's deposition testimony, the reference to the C7 level in the operative report from the second surgery was a typographical error.
In opposition, plaintiff submitted the affirmation of an unidentified orthopedist. The orthopedist contended that Dr. Camins's malpractice lay in his having placed a screw at the C7 level. He referred to Camins's own records to establish that a screw was placed there. The doctor did not make any reference to plaintiff's informed consent claim.
Defendants submitted a reply affirmation from Dr. Robert Schneider, a radiologist. Dr. Schneider averred that, contrary to the statement by plaintiff's expert, the C-7 vertebral body was not operated on during plaintiff's April 11, 2006 first surgery, as the lower cervical plate screw was positioned into the C-6 vertebral body and did not overlie the C6-C7 disc space. He annexed to his affirmation a copy of an X ray of plaintiff's cervical spine taken after plaintiff's first operation, which he interpreted as showing an anterior plate with screws at the C-4 and C-6 levels, and none at the C7 level. He opined that the screws were in good position without any evidence of displacement. Dr. Schneider also stated that a spinal X ray taken before the second surgery showed that the lower screws were secured into the C-6 vertebral body in the proper position, but had backed out.
The motion court denied defendants' motion for summary judgment. The court found that Dr. Cohen's affirmation was sufficient to make a prima facie showing of entitlement to summary dismissal of the malpractice claim. However, it also determined that the affirmation of plaintiff's expert created an issue of fact by stating that there was evidence that a screw had been misplaced during the original surgery. The court rejected Dr. Schneider's reply affirmation as "new evidence," and accordingly refused to consider it. In any event, the court stated, defendants' reply only "underscore[d the] conflict" concerning the placement of screws. The court dismissed plaintiff's informed consent claim.
Defendants argue on appeal that plaintiff's theory of liability, based on Dr. Camins's having placed a screw in the wrong position, was raised for the first time in opposition to the summary judgment motion and took them by surprise. Defendants assert that the allegation in plaintiff's bill of particulars regarding the "improper placement of orthopedic hardware" was too vague to have placed them on notice that plaintiff believed that Dr. Camins inserted a screw at the wrong level of plaintiff's cervical spine. Accordingly, defendants contend, they ...