Joan B. Lobis, J.
This action for medical malpractice arises out of alleged failure to timely diagnose and treat Plaintiff's detaching retina. Defendant Stephen J. Haug, M.D., moves for summary judgment pursuant to Rule 3212 of the Civil Practice Law and Rules. Plaintiff Tatiana Orloff opposes the motion. For the following reasons the motion is denied.
In the late summer and early fall of 2009, Tatiana Orloff was being treated for cataracts by Dr. Haug, an opthlamologist. Ms. Orloff was 56 years old and an art teacher in a public school district in upstate New York. She was also self-employed as an artist. On September 16, 2009, Dr. Haug performed cataract surgery on Ms. Orloff's right eye. She was scheduled to have the same procedure performed on her left eye on October 14, 2009.
The day after Ms. Orloff saw Dr. Haug for her third post-operative appointment on the right eye, on October 9, 2009, Ms. Orloff telephoned Dr. Haug's office complaining of new symptoms, including seeing "slashes and circles." Dr. Haug told her to see Dr. Young Soo Hahn. Dr. Hahn was a retinologist, who practiced in the same medical group, Queens-Long Island Medical Group, P.C. (QLIMG).
Dr. Hahn met with Ms. Orloff at 3 p.m. that day, which was a Friday. He diagnosed Ms. Orloff as having Peripheral Vitreous Detachment with no tear. He noted a "slight pull on the retina."
The following Monday morning, on October 12, 2009, Ms. Orloff called the office reporting worsening symptoms. In her deposition she testified that the staff member told her that Dr. Haug was with a patient, but he would get right back to her. Later that morning Dr. Hahn, the retinologist who had seen Ms. Orloff on the prior Friday, called Ms. Orloff. She told Dr. Hahn that she was seeing "a lot of black specks." The specks were "multiplying." She also told him that "a shadow" had developed in the lower part of her vision in the right eye. Dr. Hahn told her she would continue to have those symptoms and to come in one week later for her already-scheduled follow up appointment with him.
On Tuesday, October 13, 2009, Ms. Orloff contacted the office again. She reported that her vision was worse and wanted to be seen the same day. The office records show that the message had been given to Dr. Haug, and the instruction was for the patient to see Dr. Hahn. Dr. Haug testified in his deposition that he recalled he specifically indicated that the patient should be seen "that day." Notwithstanding, Ms. Orloff was given an appointment with Dr. Hahn for the following day at 4:20 pm.
Ms. Orloff did not wait to be seen. That afternoon she went to her community hospital's emergency room. The doctor on staff called Dr. Hahn, who told the emergency room doctor that he could see Ms. Orloff the next day. The hospital ordered Ms. Orloff transferred to The New York Eye and Ear Infirmary (NYEEI) for treatment of retinal detachment of the right eye. By the time surgery was performed, the macula had detached. Plaintiff continued treatment with NYEEI. She did not return for any further treatment with Dr. Haug or his associates. Based on vision impairment, she ultimately was forced to retire from teaching seven years earlier than she had intended, at the end of the 2010-2011 school year.
In November 2010, Ms. Orloff filed a single count complaint alleging medical malpractice, in pertinent part, against Drs. Haug, Hahn, and their practice group, QLIMG, for failing to timely diagnose and treat Plaintiff's detaching retina. In further pleadings, Plaintiff narrowed the relevant time period to the October 12-13, 2009, time period. Following disclosure and filing of the note of issue, Defendant Haug now moves for summary judgment.
Defendant Haug raises two claims for summary judgment. First, he did not depart from applicable standards of care in treating Ms. Orloff. Second any conduct by Dr. Haug did not proximately cause Ms. Orloff's injuries. In particular, Dr. Haug notes that he is not a retina specialist. Accordingly, he timely referred Ms. Orloff to Dr. Hahn. He further claims that he is not responsible for any negligence by the specialist, Dr. Hahn, who saw Ms. Orloff on October 9, and spoke with her on October 12.
In support of his motion, Defendant Haug submits a medical expert affirmation of Norman Medow, M.D. Dr. Medow is a New York-licensed physician and board-certified Ophthalmologist, who, among other things, is an attending physician at Weill-Medical College of Cornell University Hospital. Based on his review of the record in this case, Dr. Medow opines that Dr. Haug properly and timely referred Ms. Orloff, and did not proximately cause Ms. Orloff's injuries. Addressing the October 13 communications, Dr. Medow notes that Dr. Haug "instructed his medical assistant to relay to Dr. Hahn's office that Dr. Haug wanted the plaintiff seen by Dr. Hahn that day." He rejects Plaintiff's allegations that Dr. Haug should have returned her phone calls or neglected her symptoms. In his medical opinion, Dr. Haug timely and appropriately referred Ms. Orloff to the retina specialist on both October 9 and October 13 for that doctor to evaluate and perform any necessary tests, diagnostic procedures or treatments and Dr. Haug's conduct did not cause Plaintiff's alleged injuries.
In her opposition, Plaintiff disputes Defendant's prima facie case as insufficient. First, she notes that the defense expert fails to address Dr. Haug's failure to act on October 12, in response to Plaintiff's phone call. Absent any discussion on that claim of departure, the expert affirmation is at best conclusory on that point.
Plaintiff further disputes Dr. Haug's prima facie case relating to the October 13 communications. While it is uncontroverted that Dr. Haug was notified on the 13th that Plaintiff's symptoms had worsened and would like to be seen that day, in moving for summary judgment, Dr. Haug, relies on his own recollection alone that he related to staff that Ms. Orloff be seen "that day." Plaintiff swears that she was not told that, and there is no written documentation to corroborate Dr. Haug's claim. Dr. Medow relies on Dr. Haug's ...