September 20, 2013
Tatiana Orloff, Plaintiff,
Young S. Hahn, M.D., STEPHEN J. HAUG, M.D., QUEENS-LONG ISLAND MEDICAL GROUP, P.C., ELIZABETH A. MAHER, M.D., SUNIL RAO, M.D., JONATHAN FEISTMAN, M.D., JONATHAN FEISTMAN, M.D., P.C., JANE DOE, a nurse or other employee/agent of The New York Eye and Ear Infirmary who took care of patients waiting to go for surgery and gave plaintiff apple juice, JOHN OR MARY DOE, M.D., who gave the order to hydrate the plaintiff with apple juice, and THE NEW YORK EYE AND EAR INFIRMARY, Defendants.
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 self-serving language in presenting his expert opinion that Dr. Haug's actions on the 13th did not depart or cause Plaintiff's injuries.
Plaintiff contends that the Medow affirmation is further conclusory in characterizing Dr. Haug as having "immediately arranged to hav[ing] the plaintiff seen by Dr. Hahn...." Plaintiff notes that the record shows that Dr. Haug was given the message at approximately 11:30 am but Ms. Orloff was not contacted by the office regarding an appointment until approximately two hours later, which appointment, moreover, was for late in the afternoon of the next day.
Even were Defendant to have established a prima facie case, Plaintiff Orloff contends that she has rebutted that case with her own expert opinion. Dr. Haug did not return her call on October 12, despite his staff member's assurance that he would. Nor was she ever told by Dr. Haug or a member of his staff that based on her symptoms she should have been seen the same day. Attaching medical expert opinion in support, she contends that these omissions represent departures from the applicable standards of care, caused her injuries and preclude summary judgment. Her expert further opines that Dr. Haug departed from applicable standards of care in failing to have policies and procedures in place for staff regarding telephone calls relating to ophthalomogical emergencies.
In reply, Defendant disputes that Plaintiff has established any material issues of fact and contends that Plaintiff's expert opinion is not supported by the evidence in the record. Defendant Haug points out that Plaintiff did speak with Dr. Hahn on October 12. He also argues that Plaintiff's expert did not rebut Dr. Medow's opinion that Dr. Haug was entitled to defer to Dr. Hahn's expertise. Accordingly, any failure to act by Dr. Haug on October 12 had no causal impact since Plaintiff did speak with Dr. Hahn on that day. Defendant continues to rely on his recollection that on October 13 he instructed his staff to relay that he wanted Ms. Orloff seen that day.
In considering a motion for summary judgment, this Court reviews the record in the light most favorable to the non-moving party. E.g., Dallas-Stephenson v. Waisman, 39 A.D.3d 303, 308 (1st Dep't 2007). A movant must support the motion by affidavit, a copy of the pleadings, and other available proof, including depositions and admissions. C.P.L.R. Rule 3212(b). The affidavit must recite all material facts and show, where a defendant is the movant, that the cause of action has no merit. Id. This Court may grant the motion if, upon all the papers and proof submitted, it is established that the Court is warranted as a matter of law in directing judgment. Id. It must be denied where facts are shown "sufficient to require a trial of any issue of fact." Id.
In a medical malpractice case, to establish entitlement to summary judgment, a physician must demonstrate that he did not depart from accepted standards of practice or that, even if he did, he did not proximately cause injury to the patient. Roques v. Noble, 73 A.D.3d 204, 206 (1st Dep't 2010). In claiming treatment did not depart from accepted standards, the movant must provide an expert opinion that is detailed, specific and factual in nature. E.g., Joyner-Pack v. Sykes, 54 A.D.3d 727, 729 (2d Dep't 2008). Expert opinion must be based on the facts in the record or those personally known to the expert. Roques, 73 A.D.3d at 206. The expert cannot make conclusions by assuming material facts not supported by record evidence. Id. Defense expert opinion should specify "in what way" a patient's treatment was proper and "elucidate the standard of care." Ocasio-Gary v. Lawrence Hosp., 69 A.D.3d 403, 404 (1st Dep't 2010). A defendant's expert opinion must "explain what defendant did and why.'" Id. (quoting Wasserman v. Carella, 307 A.D.2d 225, 226 (1st Dep't 2003)). Conclusory medical affirmations or expert opinions that fail to address a plaintiff's essential factual allegations are insufficient to establish prima facie entitlement to summary judgment. 73 A.D.3d at 206. Once a defendant establishes a prima facie case, a plaintiff must then rebut that showing by submitting an affidavit from a medical doctor attesting that the defendant departed from accepted medical practice and that the departure proximately caused the alleged injuries. Id. at 207.
Applying this standard to the facts in this case, this Court finds that the motion should be denied. It is clear from the limited materials presented by the Defendant in support of his motion for summary judgment that no prima facie case has been established. The defense expert opinion is both conclusory and assumes material facts not supported by record evidence. For example, Dr. Medow does not address Dr. Haug's conduct on October 12, one of only two days at issue in this case, let alone explain what Dr. Haug did on that day and why. See 69 A.D.3d at 404. In addition, the doctor's conduct that the defense expert addresses on October 13 assumes the following fact: Dr. Haug related his instruction that Ms. Orloff be seen that day. That contention is highly disputed by the Plaintiff and indeed undermined by the Defendant's staff's own actions in arranging a next day appointment for Ms. Orloff with Dr. Hahn rather than an appointment on the same day. Under these circumstances it simply cannot be said that Dr. Haug, failing to even include Plaintiff's deposition, has shown that he is entitled to summary judgment as a matter of law and no material issues of fact are in dispute. Absent the Defendant having established a prima facie case, this Court need not consider whether the Plaintiff has rebutted that case. Accordingly, it is
ORDERED that the Defendant Dr. Haug's motion for summary judgment is denied, and it is further
ORDERED that the parties shall appear for a pre-trial conference on October 22, 2013.