Peralta v Urgent Med. Care, P.C. 2024 NY Slip Op 31057(U) March 26, 2024 Supreme Court, Kings County Docket Number: Index No. 520428/16 Judge: Genine D. Edwards Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

### [FILED: KINGS COUNTY CLERK 03/28/2024 02:24 P~ NYSCEF DOC. NO. 130 INDEX NO. 520428/2016 RECEIVED NYSCEF: 03/28/2024

PRES ENT: HON. GENINE D. EDWARDS, Justice. 

## -------------------------------------X STEVEN 0. PERALTA, Plaintiff,

- against
- URGENT MEDICAL CARE, P.C., BROOKLYN URGENT MEDICARE CARE, P.C., URGENT MEDICAL CARE, P.C., d/b/a UMDURGENT MEDICAL CARE AND BROOKLYN URGENT MEDICAL CARE. BROOKLYN URGENT MEDICAL CARE, d/b/a UMDURGENT MEDICAL CARE AND BROOKLYN URGENT MEDICARE CARE, S.:..r-.tUEL BRIDE, M.0.,and ROBERT ARIA, M.D., Defendants. 

### -------------------------------------X The following e-filed papers read herein: At an IAS Term, Part 80 ofthe Supreme Court ofthe State ofNew York, held in and for the County ofKings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 261h day ofMarch 2024.

DECISION, ORDER, AND JUDGMENT index No. 520428/16 Mot. Seq. No. 5-6

NYSCEFDoc Nos.: Notice ofMotion, Affirmations, and Exhibits...........................84-104; 105-119 Affirmations in Opposition and Exhibits................................. 122-124: 125-127 Reply Affirmations .....................................................128; 129 In this action to recoverdamages for medical malpractice and lack ofinformed consent. Samuel Bride, M.D. ("Dr. Bride"), and RobertAria, M.D. ('"Dr. Aria" and together with Dr. Bride, "defendants"), separately move for summaryjudgment dismissingthe respective claims ofSteven 0. Peralta ('"plaintiff') as against them. Plaintiffdid not objectto the dismissal of (and thus effectively abandoned) his informed consent claim as against defendants. See II4 Woodbury Realty, LLCv. JO BethpageRd., LLC, 178 A.D.3d 757. 114 N.Y.S.3d 100 (2d Dept. 2019); Harsch v. City of 

### NY. 78 A.D.3d 781,910 N.Y.S.2d 540 (2d Dept. 2010). The

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remainder ofthis Decision, Order, and Judgment addresses plaintiffs claims sounding in medical malpractice as against defendants.Summary On March 19, 2016, 1 plaintiff, age 47, presented to defendant-in-default Brooklyn Urgent Medical Care, P.C. (the "PC"), with the chiefcomplaintofa "righthand second digit 

### injury" in a softball game. 2 Plaintiffwas examined by Dr. Bride (the urgent care physician then on duty) who found that his new patient had a ..fl]imited [range ofmotion in his] right index finger[.] secondary topain."3 To find out what was wrongwithplaintiff: Dr. Bride X-rayed his patient'sright hand, with the focus on the right index finger. 4 Dr. Bride electronically transmitted X-ray images (accompanied by his instruction to "rule out fracture") to a teleradiology company for review and interpretation.5 Dr. Aria, then working for the teleradiology company, was (and still is) a NewYork State-licensed and board-certified diagnostic radiologist.6

1 All references are to calendar year2016, unless otherwise indicated. 2 See PC's medical records, page 1of3 (NYSCEF Doc No. IOI) (the "PC's records"). When quoting from the PC's records (as well as from other medical records), the Court spelled out all abbreviations and corrected all typographical errors. 3 See PC'srecords, page 2 of3. 4 See X-ray images ofplaintiffsright hand (NYSCEF Doc No. 102). s See Dr. Bride's deposition tr at page 20, lines 10-13 (NYSCEF Doc No. 98). 6 See Dr. Aria's deposition tr at page 16, lines 3-14 (NYSCEF Doc No. 97).

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Dr. Aria faxed to the PC his radiologic findings and impression concerning plaintiffs right index finger.7 Dr. Aria·s impression, as reflected in his written report, was that plainti

### ff sustained a '"[n]on-displaced oblique fracture ofthe palmar aspect ofthe base oftheproximal phalanx ofthe right second digit" (the "proximal phalanx fracture"). 8 Dr. Bride reviewed Dr. Aria's written report, as indicated by Dr. Bride"s placement thereon ofhis initials and date. Adhering to Dr. Aria's radiologic findings, Dr. Bride diagnosedplaintiffas having sustained a proximal phalanx fracture. 9 Dr. Bride's treatment plan for plaintiff, in light ofDr. Aria's radiologic findings, stated in full, as follows: Advised [the] patient to ice, and rest. Non-steroidal anti-inflammatory drugs for pain [and] inflammation. Immobilize with splint[.] Expected course - improvement over several weeks. 

### Follow up with orthopedics if 

### signs/symptoms persistor worsen overprotractedperiod. 10 One month later, on April 18th, plaintiffpresentedto nonparty Hospital for Special Surgery ("HSS'') with complaints ofpain in his right index finger. 11 An X-ray. followed by a CT scan, both performed at HSS on that date, revealed that plaintiffhad sustained two fractures (with one ofthem being complex), rather than a single, relatively uncomplicated fracture that Dr. Aria previously reported to the PC; namely: (1) a ·'middle phalanx

7 See Dr. Aria's Radiology Interpretation, dated March 19, 2016 ("Dr. Aria's report..). which is part ofthe PCs records. 8 The Court assumes the parties' familiarity with basic anatomy and physiology. 9 See PC'srecords. page 2 of3 (Assessment/Plan section) ("Nondisplaced Fracture ofProximal Phalanx OfRight Index Finger, Initial Encounter for Closed Fracture"') (original capitalization preserved; bold-face type omitted). 10 See PC'srecords, page 2 of3 (Assessment/Plan section) (emphasis added). 11 See HSS'srecords, page 0000I (NYSCEF Doc No. 117).

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comminuted volar lip fracture with proximal interphalangealjoint intra-articular extent'' and with "slight dorsaljoint subluxation" (the ·•middle phalanx fracture"): and (2) a '·dorsal lip avulsion fracture ofthe distal phalanx," also known as thebony malletdeformity (the '"bony mallet deformity"). 12 Ten days later, on April 28th, plaintiffunderwent an elective, 46- minute, same-day surgery 13 (in the form ofopen reduction and internal fixation with a K-wire) for the middle phalanx fracture. 14 Plaintiffspost-operative recovery was uneventful. Fiveyears later in November 202l. he continuedto play softball in the same league. 15 Meanwhile. on November 17. 2016, plaintiffcommenced the instant action to recover damages for medical malpractice and lack ofinformed consent as against (among others) Drs. Bride and Aria. Only Drs. Bride and Aria appeared in this action. By order, dated

12 See HSS's records at page 00002 (CT Scan Report. Findings & Impression). 13 See HSS'srecords at page 00007 (General Information, Diagnosis Information, Case Tracking Events, and Panel lnfotmation). 14 Surgery. as was performed on plaintiff, at HSS. (as opposed to what the surgeon initially contemplated). was limited to the open reduction, internal fixation ofplaintiffs middle phalanx fracture with ··a 4.5 K-wire•· (rather than by way of a hemi-hamate arthroplasty). The bony mallet deformity was left undisturbed to heal on its own because ofthe intraoperative finding ofthe prior injuries in that region. As the surgeon explained hisjudgment(at page 2 ofthe Operative Record): "Because [following the placement ofthe K-wire] the [proximal interphalangeal ("PIP")]joint was stable and because [the] patient had significant improvement in [his] range ofmotion without mechanical crepitation, it was decided at this point to not shockjoint open and perform a hemi-hamate arthroplasty torestore [the full] congruity but rather to accept the slight incongruity thatpersisted." Next, the C-arrn fluoroscopy was used to evaluate the bonymalletdeformity. The patient had nearly healed [his} bony mallet defonnity which appears to have been a repeat hony mallet deformity through a healed bony mallet malunion. The distal fracture fragment andproximal fracture fragment moved as one unit indicating significant healing. It was decided to not pin the PIPjointat this point.'' HSS's records at 00040 (emphasis added). 11 See Plaintiffs deposition tr (Nov. 3, 2021) atpage 173, line 19 to page 174, line 5 (NYSCEF Doc No. 96).

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June 21, 2018, the Court (Graham. J.) granted plaintiffleave to enter a defaultjudgment against the PC and the remaining detendants (NYSCEF Doc No. 37). After discovery was completed and a note ofissue/certificate ofreadiness was filed, the instant motions timely ensued. On December 15. 2023, the Courtreserved decision on the instant motions. Standard ofReview "In moving for summaryjudgmentdismissing a cause ofaction alleging medical malpractice, a defendant must establish, prima facie, that there was no departure or deviation from the accepted standard ofcare orthat such departure ordeviation was not a proximate cause ofany injury to the plaintiff'' Attia v. Klebanov. 192 A.D.3d 650. 143 N.Y.S.3d 408 (2d Dept. 2021). Where a defendant meets its prima facie burden as to both elements ofa medical malpractice action. "theburden shifts to the plaintiffto rebut the defendant's showing by raising a triable issue offact as to both the departure element andthe causation element." Stukas v. Streiter, 83 A.D.3d 18, 918 N.Y.S.2d 176 (2d Dept.2011). ·'Although conilicting expert opinions may raise credibility issues which can only be resolved by ajury. expert opinions that are conclusory, speculative, orunsupported by the record are insufficient to raise triable issues offact.'' Wagner v. Parker, 172 A.D.3d 954, 100 N.Y.S.3d 280 (2d Dept. 2019). "In order not to be considered speculative orconclusory, expert opinions in opposition should address specific assertions made by the movant"s experts, setting forth an explanation ofthe reasoning and relying on specifically cited evidence in the record.'' Scopelliti v. Westmed Med. Group, I93 A.D.3d 1009, 146 N.Y.S.3d 656 (2d Dept. 2021). ··An expert opinion that is

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contradicted by the record cannot defeat summaryjudgment." Wagner v. Parker. 172 A.D.3d 954, 100 N.Y.S.3d 280 (2d Dept. 2019). Discussion Dr. Bride In his motion for summaryjudgment, Dr. Bride established his prima facie entitlement tojudgment as a matter oflaw on plaintiff's cause ofaction sounding in medical malpractice, by way of(among other documents) the expert affirmation ofRobert Gluck, M.D. ("Dr. Bride's expert"), a board-certified orthopedic surgeon with sub-certification in hand surgery. Dr. Bride's expert opined, based upon his review ofthe medical records, the deposition testimony, and the pleadings, that the treatment provided by Dr. Bride was in accordance with the accepted standard ofcare and that, in any event, Dr. Bride did not proximately cause plaintiff's alleged injuries. See Kim v. North Shore LongIs. Jewish Health Sys., Inc., 202 A.D.3d 653, 162 N.Y.S.3d 132 (2d Dept. 2022). In particular, Dr. Bride's expert observedthat Dr. Bride was '"entitled to rely upon the training and expertise ofother physicians acting within theirrespective areas ofspecialty, including a radiologist who has been tasked with reviewing [X]-rays to rule out a fracture," such as Dr. Aria. This astute observation reflected the long-establishedprinciple that ·'[a]lthoughphysicians owe a general duty ofcare to their patients, that duty may be limitedto those medical functions undertaken by the physician and relied on by the patient." Chulla v. DiStefano. 242 A.D.2d 657. 662 N.Y.S.2d 570 (2d Dept. 1997), Iv. dismissed91 N.Y.2d 921,669 N.Y.S.2d 263 (1998).

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In opposition to Dr. Bride'sprima facie showing. plaintiffs expert orthopedist ("plaintiffs expert'') failed to raise a triable issue offact. 16 Significantly. plaintiffs expert did not differentiate between the alleged acts oromissions ofDrs. Bride and Aria, but merely stated in conclusoryterms that both defendants should have observed and diagnosed (based on the X-ray images taken at the time) that plaintiffsustained a complex middle phalanx fracture, togetherwith a bony mallet fracture (ratherthan a relatively uncomplicatedproximal phalanx fracture). 17 See Kim, 202 A.D.3d 653, 162N.Y.S.3d 132;Ahmedv. Pannone, 116 A.D.3d 802. 984 N.Y.S.2d 104 (2d Dept. 2014), Iv. dismissed25 N.Y.3d 964. 8 N.Y.S.3d 261 (2015), reargdenied26 N.Y.3d 944, 17 N.Y.S.3d 61 (2015). Plaintiffs generalized failure to differentiate those physicians from each other was further compounded by his concurrent failure to submit record evidence showing that Dr. Bride. as an urgent care physician. departed from accepted standards ofmedical care by relying on the written interpretation ofthe X-ray [ films by Dr. Aria, a board-certified diagnostic radiologist. See Tsitrin v. New York CommunityHosp.. 154 A.D.3d 994. 62 N.Y.S.3d 506 (2d Dept.2017); Miccio/av. Sacchi. 36A.D.3d 869, 828 N.Y.S.2d 572 (2d Dept. 2007).

16 See "Physician[']s Affinnation," dated September9, 2023 (NYSCEF Doc No. 127). 17 See Plaintiffs expert affinnation,**~** 8 ("The interpretation ofthe defendants..."), ,r 9 ("[l]t was a departure on the part of the defendants.. ."), ,r 9 ("[I]t was a departure from good and accepted standards ofmedical care for defendanls.. ."),

### ,r 9 ("Additionally.... it was a departure from good and accepted standards ofmedical care for the defendants..."),,r 13 ("Itis my opinion that defendant's failure...") (emphasis added in each instance). Although the latter instance used the word "defendant'' in the singular, the difference was immaterial because plaintiffsubmitted the identical expert affinnation in opposition to both motions (compare NYSCEF Doc No. 127 with No. 124).

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Dr. Aria likewise made a prima facie showing ofentitlementtojudgment as a matter of lawby way of(among other submissions) the expert affirmation ofMarkBrandon, M.D. ('"Dr. Aria's expert"), 18 as to both the departure and causation elements ofplainti

### ffs medical malpractice claim as againsthim. Although plaintiffs expe1i raised a triable issue offact as to the departure element, his (or her) opinion on the causation element was not supported by citations to record evidence. 19 See Daniels v. Pisarenko, 222 A.D.3d 83L 199 N.Y.S.3d 693 (2d Dept. 2023); Martinez v. Quintana, 138 A.D.3d 79L 29 N.Y.S.3d 529 (2d Dept. 2016) (granting the defendantradiologist's motion for summaryjudgmentwhere, in opposition to his prima facie showing, the plaintiff's expert "citedto no record evidence to support his opinion that the plaintiff's alleged injuries were due to the undiagnosed fracture''), Iv. denied27 N.Y.3d 912, 39 N.Y.S.3d 381 (2016). Plaintiffs expert's surmise andconjecture
- that aprompt diagnosis ofplaintiffs fractures would "potentially [have] prevent[ed] surgical intervention at [HSS]," and that with a prompt "referral to a hand surgeon ... [his fractures] wouldhave been reduced, splinted and treated [,thereby] providinghim a 50% chance ofhealing without surgical intervention"20

- were insufficient to raise a triable issue offact on the element ofcausation. See Wijesinghe v.

18 See Dr. Brandon's Expert Physician Affirmation (NYSCEF Doc No. 88). 19 Plaintiffs expert affirmation failed to specify the records
- otherthan the X-ray films taken at the PC
- which he (or she) reviewed in preparing his (orher) affirmation. See Plaintiffsexpert affirmation.i1 3 (''The history from the record~ Iwas provided . ..")(emphasis added). 20 Plaintiffsexpert affirmation,

### ,r,r 12 and 14 (NYSCEF Doc No. 124) (emphasis added).

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Buena Vida Corp., 210 A.D.3d 824, 178 N.Y.S.3d 184 (2d Dept. 2022). Lastly, plaintiffs expert affirmation failed to address the specific assertions made by Dr. Aria's expert on the element ofcausation. See Townsendv. Vaisman, 203 A.D.3d 1199, 166 N.Y.S.3d 221 (2d Dept. 2022); 

### Kim, 202 A.D.3d 653, 162 N.Y.S.3d 132 (2d Dept. 2022). The Court considered the parties' remaining contentions and found them either moot or without merit in light ofits determination.Conclusion Based on the foregoing, it is ORDERED that Dr. Bride'smotion for summaryjudgment is grantedin its entirety, and it is further ORDEREDthat Dr. Aria'smotion for summaryjudgment is grantedin its entirety, and it is further ORDERED that plaintiffs complaint is dismissed in its entirety as against Ors. Bride and Aria, without costs and disbursements in each instance, and it is further

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### [FILED: KINGS COUNTY CLERK 03/28/2024 02:24 P~ NYSCEF DO-C. NO. 130 lO ORDERED that the caption is amendedto read as follows:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X STEVEN0. PERALTA, Plaintiff,

- against
- URGENTMEDICAL CARE, P.C., BROOKLYN URGENT MEDICARE CARE,P.C., URGENT MEDICAL CARE, P.C., d/b/a UMD URGENT MEDICAL CARE AND BROOKLYN URGENT MEDICAL CARE, and BROOKLYN URGENT MEDICAL CARE,P.C. d/b/a UMD URGENT MEDICAL CARE AND BROOKLYN URGENT MEDICARE CARE, Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X ; and it is further INDEX NO. 520428/2016 RECEIVED NYSCEF: 03/28/2024

ORDERED that the ADR conference, currently scheduled for May 14, 2024, at 10 a.m., is canceled, and it is further ORDERED that plaintiffmay schedule an inquest on damages as against the PC and the other defendants-in-default in accordance with the aforementioned default order, dated June 21, 2018 (Graham, J.), and it is further ORDERED that Dr. Aria's counsel is directed to electronically serve a copy ofthis Decision, Order. and Judgmentwith notice ofentry on plaintiff's counsel and on Dr. Bride's counsel, as well as to electronically file an affidavit ofservice thereofwith the Kings County Clerk. This constitutes the Decision, Order, andJudgment ofthPA""............_rr

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