WASSERMAN v. CARELLA

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Docket Number

1234

Attorney(S)

Stephen D. Chakwin, Jr., for plaintiff-appellant. Steven C. Mandell, for defendant-respondent.

Judges

Luis A. Gonzalez

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Smart Summary

Factual and Procedural Background

This case arises from a medical malpractice action involving plaintiff's decedent, an individual with a lifelong history of insulin-dependent diabetes, who sustained a right heel fracture while at work. The plaintiff alleged that defendant Stephen J. Ringel, M.D., was negligent in his treatment, which led to serious injuries including diabetic gangrene of the second right toe requiring amputation and a subsequent below-the-knee amputation of the right leg. The plaintiff's verified bill of particulars asserted multiple breaches of the standard of care by the defendant, including failure to timely diagnose and cast the fracture, improper advice on mobility, failure to order a bone scan, and failure to recognize complications related to plaintiff’s diabetic condition.

Defendant moved for summary judgment, submitting plaintiff's medical records and the affidavit of his expert, Dr. Habermann. Plaintiff opposed with a notarized affidavit of an expert whose name and signature were redacted. The motion court granted defendant’s motion, finding defendant made a prima facie showing and that plaintiff’s expert affidavit was insufficient due to being unsigned and failing to raise a material issue of fact. The Appellate Division reversed this decision, denied the motion, and reinstated the complaint as to Dr. Ringel.

Legal Issues Presented

Whether defendant Dr. Ringel met his initial burden on a summary judgment motion by demonstrating the absence of any material issues of fact regarding alleged medical malpractice.
Whether the plaintiff’s opposition, including an affidavit of an expert with a redacted signature, was sufficient to raise a triable issue of fact.
The proper standard and evidentiary requirements for granting summary judgment in a medical malpractice action under New York law.

Arguments of the Parties

Defendant's Arguments

Defendant submitted medical records and an expert affidavit (Dr. Habermann) to establish a prima facie case that he was not negligent in treating the plaintiff.
The expert affidavit asserted that the treatment rendered did not cause or contribute to the plaintiff’s injuries.
Defendant argued that plaintiff’s expert affidavit was unsigned and thus inadmissible and failed to raise a material issue of fact.

Plaintiff's Arguments

Plaintiff submitted a notarized expert affidavit opposing summary judgment, despite the expert’s name and signature being redacted.
Plaintiff contended that defendant’s treatment was negligent in various respects, including failure to timely diagnose and cast the fracture, improper mobility advice, and failure to recognize diabetic complications.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853	Burden on movant in summary judgment to show no material issues of fact exist.	Confirmed that defendant must establish a prima facie case before plaintiff's opposition is considered.
Jacques v. Richal Enters., Inc., 300 A.D.2d 45, 46	Standard for summary judgment burden of proof.	Supported the requirement that the moving party must initially demonstrate entitlement to judgment as a matter of law.
New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 A.D.2d 583	Summary judgment standards and evidentiary burdens.	Reinforced the principle that failure to make a prima facie showing necessitates denial of summary judgment.
Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324	Requirement that plaintiff must submit evidentiary facts to rebut prima facie showing of no negligence.	Clarified that if defendant fails to meet initial burden, plaintiff's opposition sufficiency is immaterial.
Rosario v. Humphreys Harding, 301 A.D.2d 406	Summary judgment evidentiary standards.	Supported the denial of summary judgment where the movant fails to make a prima facie showing.
Masucci v. Feder, 196 A.D.2d 416, 419-420	Medical malpractice summary judgment standards.	Applied to emphasize plaintiff's burden to raise triable issues and defendant's burden to make a prima facie showing.
Margolese v. Uribe, 238 A.D.2d 164, 166	Opposition to summary judgment in medical malpractice must present evidentiary facts.	Used to confirm the necessity of evidentiary opposition to rebut defendant's prima facie case.
Cicolello v. Limb, 216 A.D.2d 434	Conclusive expert affidavits are required to support summary judgment in medical malpractice.	Held that conclusory denials without factual support are insufficient to grant summary judgment.
Muscatello v. City of New York, 215 A.D.2d 463, 464	Expert affidavits must address essential factual allegations to support summary judgment.	Applied to reject defendant’s conclusory affidavit as insufficient to establish entitlement to summary judgment.

Court's Reasoning and Analysis

The court analyzed the sufficiency of defendant’s motion for summary judgment under New York law, which requires the movant to establish a prima facie case that no material facts are in dispute and that it is entitled to judgment as a matter of law. The court found that Dr. Habermann’s expert affidavit was conclusory and failed to address fundamental allegations in plaintiff’s bill of particulars. Specifically, the affidavit did not explain why alternative treatments such as casting or surgery were not viable, inadequately justified the use of crutches, and failed to clarify what constituted the treatment of the fracture. The affidavit’s statement that the treatment did not cause or contribute to plaintiff’s injuries was unsupported by explanation, especially given the rapid diagnosis of gangrenous infection shortly after defendant’s care.

Because the defendant failed to make a sufficient prima facie showing, the court held that summary judgment was improperly granted. The insufficiency of plaintiff’s opposition affidavit was immaterial once defendant failed to meet the initial burden. The court thus reversed the order granting summary judgment, denied the motion, and reinstated the complaint.

Holding and Implications

The Appellate Division reversed the summary judgment granted to defendant Dr. Ringel, denied the motion, and reinstated the plaintiff’s complaint.

The direct effect of this decision is that the plaintiff’s medical malpractice claim against Dr. Ringel proceeds to trial. The court did not set new precedent but applied established standards for summary judgment in medical malpractice cases, emphasizing the necessity for a movant’s expert affidavit to address all essential factual allegations with sufficient detail.

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ANGELA WASSERMAN, ETC., Plaintiff-Appellant, v. A.V. CARELLA, M.D. Defendant, STEPHEN J. RINGEL, M.D., P.C., Defendant-Respondent.

In this medical malpractice action, plaintiff's decedent (to be referred to herein as plaintiff), an individual with a lifelong history of insulin-dependent diabetes, sustained a right heel fracture while at work. Plaintiff maintains that as the result of defendant's negligent treatment, he sustained serious personal injuries including, inter alia, diabetic gangrene of the second right toe, requiring amputation, and a subsequent amputation of the right leg below the knee. In his verified bill of particulars, plaintiff asserted that defendant was negligent in failing to timely diagnose the heel fracture; in failing to cast the fractured foot; in advising plaintiff to walk a four-point gait and to use crutches when, in fact, plaintiff should have been restricted in his mobility; in failing to timely order a bone scan; in failing to recognize the complications caused by such a fracture which arose out of plaintiff's diabetic condition, of which defendant was aware; and in failing to adhere to accepted and approved standards for the care and surgical treatment of a person in plaintiff's condition.

Defendant subsequently moved for summary judgment, in support of which he submitted, inter alia, copies of plaintiff's medical records and the affidavit of his expert, Dr. Habermann. In opposition, plaintiff submitted, inter alia, the notarized affidavit of his expert, whose name and signature were redacted. The motion court granted defendant's motion and found that defendant sustained his burden of proof and established a prima facie case for summary judgment in his favor. The court also found that the affidavit of plaintiff's expert was insufficient in two respects: that it was unsigned and, therefore, inadmissible; and that, in any event, it failed to raise a material issue of fact. We disagree to the extent that we find defendant failed to sustain his initial burden and, accordingly, reverse.

The proponent of a motion for summary judgment has the burden of tendering sufficient evidence to demonstrate that there are no material issues of fact in dispute and that he/she is entitled to judgment as a matter of law in the first instance (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Jacques v. Richal Enters., Inc., 300 A.D.2d 45, 46; New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 A.D.2d 583). The failure to make such a prima facie showing requires the denial of the motion, and renders the sufficiency of plaintiff's opposition immaterial (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324;Rosario v. Humphreys Harding, 301 A.D.2d 406; Masucci v. Feder, 196 A.D.2d 416, 419).

"In a medical malpractice action, a plaintiff, in opposition to a defendant physician's summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact" (Alvarez v. Prospect Hosp., supra at 324; Margolese v. Uribe, 238 A.D.2d 164, 166;Masucci v. Feder, supra at 419-420).

In this matter, we find Dr. Habermann's affidavit, which can be described as sparse at best, to be wholly conclusory as it fails to address, in its three substantive paragraphs, even the most basic allegations contained in plaintiff's bill of particulars. Dr. Habermann: fails to explain why surgical intervention or the use of a cast were not viable alternatives; merely states that the use of crutches was appropriate, with no elaboration; fails to address plaintiff's assertion that crutches were, in fact, contraindicated; and, most glaringly, does not explain what "treated the fracture" means, i.e., what defendant did and why. With regard to proximate cause, Dr. Habermann opines that "the treatment [whatever it consisted of] . . . in no way caused or contributed to the injuries allegedly sustained," although Dr. Habermann does not explain how plaintiff's gangrenous infection was diagnosed elsewhere just 17 days after he was under defendant's care.

Bare conclusory denials of negligence without any factual relationship to the alleged injuries, and the submission of the affidavit of a medical expert which fails to address the essential factual allegations set forth in the complaint, are insufficient to establish that defendant is entitled to summary judgment (Cicolello v. Limb, 216 A.D.2d 434; Muscatello v. City of New York, 215 A.D.2d 463, 464). Since defendant has failed to shoulder his burden on this motion, summary judgment should have been denied regardless of the sufficiency of plaintiff's opposition.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.