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Mackauer v. Parikh

Supreme Court of New York, Second Department

March 15, 2017

Peter Mackauer, respondent,
v.
Divyang Parikh, etc., et al., appellants. Index No. 102150/11

          Vaslas Lepowsky Hauss & Danke, LLP, Staten Island, NY (Neil F. Schreffler of counsel), for appellants.

          Law Offices of Joseph M. Lichtenstein, P.C., Mineola, NY (Joseph L. Ciaccio of counsel), for respondent.

          MARK C. DILLON, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, SYLVIA O. HINDS-RADIX, FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         In an action to recover damages for medical malpractice, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated November 5, 2014, as denied that branch of their motion which was for summary judgment dismissing the complaint.

         ORDERED that the order is affirmed insofar as appealed from, with costs.

         On April 13, 2009, Dr. Divyang Parikh, a gastroenterologist, performed a colonoscopy on the plaintiff. Thereafter, on April 21, 2009, the plaintiff presented to Parikh in a highly emotional state, complaining of nonspecific abdominal pain. Parikh referred the plaintiff to his primary care physician for a psychiatric evaluation. Two days later, on April 23, 2009, the plaintiff presented to the emergency room at Staten Island University Hospital, where he was diagnosed with acute perforated appendicitis.

         On or about June 2, 2011, the plaintiff commenced this action to recover damages for medical malpractice against Parikh and his employer, the defendant Digestive Liver Disease Center, alleging, inter alia, that the defendants departed from accepted standards of medical care by perforating the plaintiff's appendix during the April 13, 2009, colonoscopy, and then failing to diagnose him with a perforated appendix during the April 21, 2009, follow-up visit.

         At his deposition, the plaintiff testified that he presented to Parikh on April 21, 2009, complaining of severe pain, but Parikh would not allow the plaintiff to lie down during the visit and suggested that he seek psychiatric help. The plaintiff's wife, Donna Mackauer (hereinafter Mackauer), testified at her deposition that she accompanied the plaintiff to the April 21, 2009, follow-up visit, at which time he "was very gray and sweating, " had a fever, could barely stand, and was "very emotional" because of his pain. She testified that the plaintiff complained that the pain in his stomach was "worse than it had ever been" and was "very different" from the pain he had experienced before. According to Mackauer, Parikh dismissed the plaintiff's pain as psychological and refused to physically examine him. Parikh prescribed medication to help the plaintiff relax, and advised him to see a psychiatrist.

         Parikh testified at his deposition that he first saw the plaintiff on April 24, 2008. At that time, the plaintiff reported, inter alia, a two-year history of pain with bloating and burning, mainly localized in the upper abdomen. After a series of visits and tests, on March 31, 2009, the plaintiff complained of abdominal pain in the right upper quadrant, heaviness, indigestion, nausea, and bloating after meals. Parikh advised the plaintiff of the need for a colonoscopy and an esophagogastroduodenoscopy (hereinafter EGD) for further evaluation of his gastrointestinal complaints. In his report for the visit, Parikh noted that the plaintiff exhibited "abnormal behavior, " and that "[i]nitially he started crying and by the end of the office visit he was laughing." On April 13, 2009, Parikh performed a colonoscopy and EGD on the plaintiff, resulting in a diagnosis of, inter alia, mild diverticulosis. On April 18, 2009, Parikh received a phone call from Mackauer, who informed him that the plaintiff was very anxious and asked Parikh for his help in counseling the plaintiff to seek a psychiatric evaluation. Parikh advised Mackauer to accompany the plaintiff to his next visit. On April 21, 2009, the plaintiff presented for a follow-up visit, accompanied by his wife. Parikh noted that the plaintiff was crying and complaining of nonspecific abdominal pain. Parikh directed the plaintiff to consult with his primary care physician for a psychiatric evaluation. Parikh further testified that the plaintiff's chief complaint of nonspecific abdominal pain was the same type of pain he had complained of prior to the colonscopy, i.e., abdominal bloating and excessive flatulence. Based upon his review of the medical records, Parikh opined that the appendicitis was not related to the colonoscopy, and the plaintiff "must have developed acute appendicitis on the day he went to the emergency room."

         The plaintiff served a "supplemental" bill of particulars dated April 29, 2014, asserting, inter alia, the following additional theories of malpractice: "failure to perform a physical evaluation on th[e] plaintiff when plaintiff presented to the defendant's office on April 21st, 2009 complaining of pain; negligently attributing the plaintiff's abdominal pain as a psychotic episode;... failure to refer the plaintiff to the emergency room at the April 21st, 2009 visit, refusing to evaluate the plaintiff at the 4/21/09 visit; allowing the plaintiff's condition to worsen; failure to appreciate the significant [sic] of the plaintiff's abdominal pain; failure to conduct tests to determine the cause of the plaintiff's abdominal pain; failure to appreciate the significant [sic] of severe abdominal pain in a patient who underwent a colonoscopy." The plaintiff filed a note of issue and certificate of readiness for trial dated April 30, 2014.

         By notice of motion dated June 23, 2014, the defendants moved, inter alia, for summary judgment dismissing the complaint. The Supreme Court denied that branch of the defendant's motion. The defendants appeal. We affirm.

         A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure from accepted standards of medical care or that any departure was not a proximate cause of the plaintiff's injuries (see Uchitel v Fleischer, 137 A.D.3d 1111, 1112; Senatore v Epstein, 128 A.D.3d 794, 795). In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars (see Wall v Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 1044-1045; Grant v Hudson Val. Hosp. Ctr., 55 A.D.3d 874, 874). Once this showing has been made, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only "as to those elements on which the defendant met the prima facie burden" (Harris v Saint Joseph's Med. Ctr., 128 A.D.3d 1010, 1012; see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324; Uchitel v Fleischer, 137 A.D.3d at 1112; Stukas v Streiter, 83 A.D.3d 18, 30).

         Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting, inter alia, the expert affirmation of Dr. James Grendell, a gastroenterologist, who opined that the defendants did not depart from accepted standards of care in performing the colonoscopy and did not perforate the plaintiff's appendix (see Stukas v Streiter, 83 A.D.3d at 30). Further, Grendell opined, with a reasonable degree of medical certainty, that the plaintiff was provided with proper care and "did not exhibit any signs or symptoms of appendicitis on April 21, 2009" when he was examined by Parikh.

         In opposition, the plaintiff raised a triable issue of fact (see Zuckerman v City of New York,49 N.Y.2d 557, 562) through the submission of, inter alia, the expert affirmation of Dr. David Zimmon, a gastroenterologist. Although Zimmon acknowledged that the plaintiff's appendix was not perforated during the colonoscopy, he opined that Parikh departed from the standard of care by failing to diagnose the plaintiff with appendicitis during the April 21, 2009, follow-up visit, and that this departure directly caused the plaintiff to suffer severe complications associated with a perforated appendix. Zimmon disagreed with Grendell's conclusion that the plaintiff did not exhibit any signs or symptoms of appendicitis on April 21, 2009, noting that, based upon his review of the plaintiff's and Mackauer's deposition testimony, there was a question as to whether Parikh actually examined the plaintiff at all on that date. Zimmon opined: "The type of severe pain the plaintiff felt on April 21st, is evidence of an obstructed appendix before rupture or abscess ...


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