| Videnovic v Goodman |
| 2008 NY Slip Op 07117 [54 AD3d 937] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Sarah Videnovic, Also Known as Stoja Videnovic,Appellant, v Jack Goodman et al., Respondents. |
—[*1] O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains, N.Y. (Montgomery L.Effinger of counsel), for respondents Jack Goodman and Jack Goodman, M.D., P.C. Steinberg, Symer & Platt, LLP, Poughkeepsie, N.Y. (Ellen Fischer Bopp of counsel), forrespondent William Teubl, sued herein as William Teubel. Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (Claudine Weis ofcounsel), for respondent Mid-Hudson Family Health Services Institute.
In an action to recover damages for medical malpractice, etc., the plaintiff appeals from anorder of the Supreme Court, Dutchess County (Pagones, J.), dated May 2, 2007, which grantedthe motion of the defendants Jack Goodman and Jack Goodman M.D., P.C., and the separatemotions of the defendant William Teubl, sued herein as William Teubel, and the defendantMid-Hudson Family Health Services Institute, for summary judgment dismissing the complaintinsofar as asserted against each of them.
Ordered that the order is reversed, on the law, with one bill of costs payable to the plaintiffby [*2]the defendants appearing separately and filing separatebriefs, and the motions for summary judgment are denied.
On October 2, 2003 Velibor Videnovic, then 64 years old, was treated at the emergency roomat Northern Dutchess Hospital after experiencing shaking in his left arm and leg. He wasdiagnosed as having suffered a transient ischemic attack (hereinafter TIA), or mini-stroke. OnOctober 6, 2003 Videnovic underwent an extracranial carotid ultrasound examination, whichrevealed 60-79% stenosis (blockage) in his right internal carotid artery and 80-99% stenosis inhis left internal carotid artery. These results were described as a "significant change" from a priorexamination administered several years earlier. A magnetic resonance angiograph (hereinafterMRA) was recommended. On October 8, 2003 the defendant Mid-Hudson Family HealthServices Institute (hereinafter Mid-Hudson) was notified of the hospital visit and the testsperformed on Videnovic. Mid-Hudson was the place of practice of the defendant William Teubl,sued herein as William Teubel, Videnovic's internist for the three years preceding the TIA. OnOctober 13, 2003 Videnovic was seen by Teubl's physician's assistant. At that time, Videnovicwas directed to obtain an MRA, to consult with the defendant Jack Goodman, a neurosurgeon,and to return to Mid-Hudson on October 28, 2003. Videnovic complied. On October 22, 2003 anMRA was performed that revealed 60 to 80% stenosis in Videnovic's right internal carotid arteryand 90% or greater stenosis in his left internal carotid artery. On October 29, 2003 Videnovicwas seen by Teubl, who reviewed the test results and advised Videnovic to continue his care andtreatment with Goodman. On November 5, 2003 an angiogram performed at Goodman's requestconfirmed the results of the earlier tests. Goodman scheduled Videnovic for carotidendarterectomy surgery on November 21, 2003. However, on November 19, 2003, Videnovicsuffered a stroke, and on November 22, 2003 he died.
The plaintiff, individually and as executrix of Videnovic's estate, commenced this actionagainst Goodman, Goodman's professional corporation, Teubl, and Mid-Hudson to recoverdamages, inter alia, for medical malpractice. The gist of the plaintiff's allegations, in the words ofher expert, concern "not what was done by these defendants, but rather when it was done." Theplaintiff contends that the defendants' treatment of the decedent "from the time of his initialemergency room evaluation to the time of his scheduled surgery was by all logical standards,absurdly lethargic and a clear departure from accepted standards of medical care in thesecircumstances." In the order appealed from, the Supreme Court awarded summary judgment toeach of the defendants dismissing the complaint insofar as asserted against them. We reverse.
Teubl and Mid-Hudson demonstrated their prima facie entitlement to judgment as a matter oflaw dismissing the complaint insofar as against them by submitting Teubl's affidavit, in which heopined, to a reasonable degree of medical certainty, that the care and treatment rendered toVidenovic by these defendants, including the pace at which it proceeded, did not depart fromgood and accepted medical practice (seeWager v Hainline, 29 AD3d 569 [2006]; Taylor v Nyack Hosp., 18 AD3d 537 [2005]). Teubl opined that itwas not a departure from good and accepted medical practice to have deferred Videnovic'sfurther care and treatment to Goodman once the latter began consulting with Videnovic.Consequently, he argued, because Videnovic did not suffer a further stroke and die until someweeks after the deferral to Goodman, nothing either he or Mid-Hudson did or failed to do was aproximate cause of any of the damages alleged.
Goodman demonstrated his prima facie entitlement to judgment as a matter of lawdismissing the [*3]complaint insofar as against him by submittinghis own affidavit, in which he opined, to a reasonable degree of medical certainty, that the careand treatment he rendered to Videnovic, including the pace at which it proceeded, did not departfrom good and accepted medical practice (see Wager v Hainline, 29 AD3d 569 [2006]; Taylor v Nyack Hosp., 18 AD3d537 [2005]). Goodman opined that Videnovic's condition warranted urgent but notemergency care, which Videnovic in fact received.
In opposition, the plaintiff raised a triable issue of fact as to each of the defendants bysubmitting the affidavit of an expert who opined, to a reasonable degree of medical certainty, thateach defendant departed from good and accepted medical practice in their respective care andtreatment of Videnovic, and that each of the departures was a proximate cause of the damagesalleged (see Breland v Jamaica Hosp.Med. Ctr., 49 AD3d 789 [2008]). For example, the plaintiff's expert opined that, givenVidenovic's medical history, which included, inter alia, suffering the TIA despite being on aspirintreatment for cardiac issues, and prior bypass surgery, it was a departure from good and acceptedmedical practice not to have admitted him to the hospital on an emergency basis after the initialultrasound examination revealed significant blockage in his carotid arteries. Further, the expertopined that it was an even greater departure to have allowed a two-week delay in obtaining anMRA, and to have failed to admit Videnovic to the hospital for an emergency work-up andsurgery once the results of the MRA were revealed. Indeed, he opined, the defendants failed toappreciate "numerous warning flags suggesting that [Videnovic] was a high risk patient for alife-threatening cerebral vascular event," including that both the ultrasound and the MRArevealed not only significant blockage in Videnovic's carotid arteries, but also ulcerated plaqueformation, which was indicative of an increased risk of occlusion and embolization. Theplaintiff's expert opined, to a reasonable degree of medical certainty, that Videnovic could havebeen and should have been diagnosed, stabilized on intensive anti-platelet therapy with theaddition of oral plavix, and scheduled for a carotid endarterectomy within a week of the TIA, andthat it was a departure from good and accepted medical practice not to have done so. Finally, heopined, it was a departure from good and accepted medical practice not to have scheduledsurgery until almost two weeks after the last test—an angiogram—performed onNovember 5, 2003, confirmed the significant blockage of Videnovic's carotid arteries. Thus, theSupreme Court erred in awarding summary judgment to the defendants. Spolzino, J.P., Ritter,Dillon and Dickerson, JJ., concur. [See 15 Misc 3d 1129(A), 2007 NY Slip Op50905(U).]