Rosario v Manouel 2024 NY Slip Op 33630(U) October 10, 2024 Supreme Court, Kings County Docket Number: Index No. 504916/2021 Judge: Consuelo Mallafre Melendez 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 10/11/2024 10:50 AM INDEX NO. 504916/2021 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 10/11/2024 At an IAS Term, Part 15 of the Supreme Court of the State of NY, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 10th day of October 2024.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------------X MICHAEL ROSARIO, DECISION & ORDER Plaintiff, Index No. 504916/2021 -against- Mo. Seq. 4 & 5
MEHRAN MANOUEL, M.D., ABLE ORTHOPEDICS & SPORTS MEDICINE, P.C., NORTHWELL HEALTH, INC., LONG ISLAND JEWISH FOREST HILLS, a division of Long Island Jewish Medical Center a/k/a Long Island Jewish Medical Center, MERGIE DESIR, M.D., MERGIE DESIR, M.D., P.L.L.C., JUSTIN VIROJANAPA, D.O., TIMOTHY WHITE, M.D., and NORTH SHORE UNIVERSITY HOSPITAL,
Defendants. --------------------------------------------------------------------------X HON. CONSUELO MALLAFRE MELENDEZ, J.S.C. Recitation, as required by CPLR §2219 [a], of the papers considered in the review:
NYSCEF #s: Seq.4: 193 – 195, 196 – 208, 211 – 212, 213 – 218, 227 Seq. 5: 172 – 174, 175 – 192, 219 – 220, 221 – 226, 228
Defendants Mehran Manouel, M.D. (“Dr. Manouel”) and Able Orthopedics & Sports Medicine, P.C. 1
move (Seq. No. 4) for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and
dismissing all claims and causes of action against them.
Defendants Mergie Desir, M.D. (“Dr. Desir”) and Mergie Desir, M.D., P.L.L.C. 2 separately move (Seq.
No. 5) for an Order, pursuant to CPLR 3212, granting summary judgment in their favor, dismissing all claims
against them, and removing them from the caption of this action. Plaintiff opposes the motions of both Dr.
Manouel and Dr. Desir.
1 As admitted by the movants and in Dr. Manouel’s testimony, Able Orthopedics & Sports Medicine is the name of his professional practice. Dr. Manouel and Able Orthopedics move jointly for summary judgment as an individual and corporate entity. 2 Dr. Desir also moves for summary judgment individually and as a professional limited liability company. 1
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Plaintiff commenced this action on March 1, 2021, asserting claims of medical malpractice and lack of
informed consent in connection with diagnosis and treatment of a spinal epidural abscess. Plaintiff also asserts
claims against non-moving co-defendants Long Island Jewish Forest Hills (“LIJ”), North Shore University
Hospital, and other individual physicians.
On December 13, 2024, Plaintiff presented to the emergency department of LIJ with a chief complaint
of severe back pain beginning one week earlier. He was 40 years old with a medical history including diabetes
mellitus. An x-ray of Plaintiff’s lumbar spine, ordered by the attending ER physician, showed mild degenerative
joint disease. Orthopedic surgery consult Dr. Manouel performed an examination, assessed Plaintiff with a
“lumbar sprain, left sided SI [sacroiliac] joint pain/left paravertebral lower lumbar muscle spasm,” and
administered a trigger point injection of 40mg depomedrol (steroid) and 5cc lidocaine (painkiller). Plaintiff was
discharged from LIJ the same day with anti-inflammatory medications and muscle relaxants. He was advised to
schedule a lumbar spine MRI and follow up with Dr. Manouel’s office.
On December 15, Plaintiff was examined by his primary care physician, Dr. Desir, who recorded he was
discharged from the hospital two days earlier and still had “dull, pulsating” lower back pain. She noted his
“significant” muscle spasm, limited range of motion, decreased quadriceps strength, and that he slouched and
walked with a limp. She prescribed Tramadol, continued muscle relaxants, and referred him to see an
orthopedist with a follow-up appointment in her office in two weeks.
Plaintiff’s wife, Ileanna Santana (“Ms. Santana”), testified that she called Dr. Desir’s office on the
evening of December 17 between 8:00 p.m. and 9:00 p.m., at which time her husband was unable to stand,
walk, or control his bladder. According to Dr. Desir’s office notes and testimony, Ms. Santana reported that
evening that her husband was shaking uncontrollably; Dr. Desir advised them to discontinue muscle relaxants
and come in on December 19 if his symptoms worsened.
Plaintiff returned to the emergency department of LIJ the following morning at approximately 10:00
a.m. with back pain, spasms, and difficulty ambulating. An MRI of the lumbar spine revealed an epidural
abscess (infection in the spine) and compression of nerve roots. He was then transferred to North Shore
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University Hospital where he arrived at approximately 7:30 p.m. and was treated overnight with antibiotics. On
December 19, he underwent L3-L4 laminectomies to evacuate the spinal epidural abscess. Following the
surgery, Plaintiff reported difficulty breathing and upper extremity weakness. An MRI of the neuro-axis
revealed he had a larger cervicothoracolumbar epidural abscess, resulting in spinal canal stenosis. He underwent
a second surgery to evacuate the abscess at C1-C4. He remained hospitalized in the neurosurgical ICU with
various complications and was ultimately discharged to Mount Sinai on January 23, 2019 for rehabilitation. He
remains paralyzed below the rib cage with upper extremity weakness.
Plaintiff alleges that Dr. Manouel and Dr. Desir departed from accepted standards of medical care in
their assessment and treatment of his symptoms. He further alleges that these departures proximately caused a
delay in diagnosis and treatment of the spinal epidural abscess and allowed his condition to worsen.
“In determining a motion for summary judgment, the court must view the evidence in the light most
favorable to the nonmoving party” (Stukas v Streiter, 83 AD3d 18, 22 [2d Dept 2011]). In evaluating a
summary judgment motion in a medical malpractice case, the Court applies the burden shifting process as
summarized by the Second Department:
“The elements of a medical malpractice cause of action are a deviation or departure from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff’s injuries. When moving for summary judgment, a defendant provider has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. 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. In opposition, the plaintiff must demonstrate the existence of a triable issue of fact as to the elements on which the defendant has met his or her initial burden. General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant’s summary judgment motion. Although summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact” (Barnaman v Bishop Hucles Episcopal Nursing Home, 213 AD3d 896, 898-899 [2d Dept 2023] [internal quotation marks and citations omitted].
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First, in support of his motion, Dr. Manouel submits an expert affirmation from Michael J. Bronson, M.D.
(“Dr. Bronson”), a licensed physician certified in orthopedic surgery, and an expert affirmation from William
Mandell, M.D. (“Dr. Mandell”), a licensed physician certified in internal medicine and infectious diseases.
Based on the record and his relevant expertise, Dr. Bronson opines that Dr. Manouel acted in accordance
with the standard of care when he examined and treated Plaintiff on December 13, 2018. Dr. Bronson notes that
Dr. Manouel reviewed the x-rays of the lumbar spine which had already been ordered by the attending physician.
Dr. Manouel also physically examined the patient and assessed him as “neurovascularly intact,” recording that he
had local point tenderness to palpation, no numbness, and no difficulty walking. The expert opines that the
standard of care in these circumstances requires the orthopedic specialist to “first assess whether the patient has
isolated back pain, meaning pain affecting the muscles or ligaments alone, or radiculopathy, meaning nerve
pressure.” Dr. Bronson further states that “mechanical back pain,” compared to radiculopathy, is less severe and
not a sign of spinal epidural abscess. The expert opines that Dr. Manouel conducted a “complete and thorough
examination” of Plaintiff’s lower extremities, range of motion, and sensory levels. In Dr. Bronson’s opinion, Dr.
Manouel appropriately concluded from Plaintiff’s symptoms that he had mechanical back pain and did not exhibit
“any focal neurological deficits” such as muscle weakness, numbness, or lack of reflexes. As such, the expert
opines that Plaintiff had no signs of a spinal epidural abscess that required “urgent or emergent treatment,” and
the standard of care did not require any additional MRI or CT scan at that time.
In Dr. Bronson’s opinion, trigger point injections of steroids are an appropriate treatment option within
the standard of care for mechanical back pain, and their use is not contraindicated by the patient’s history of
diabetes. Dr. Bronson opines that the trigger point injections were performed in a sterile and appropriate manner.
He further opines that Plaintiff’s plan of care for outpatient follow-up was appropriate and that there was no
reason to admit him to the hospital for further testing or treatment as of December 13.
Further, Dr. Bronson opines that trigger point injections cannot cause or exacerbate a spinal epidural
abscess, because they are injected to the muscle and not the spine. He therefore opines that the injection and
medications involved were not a proximate cause of Plaintiff’s subsequent injuries.
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Dr. Bronson opines briefly that there is “no merit” to any claims against Dr. Manouel related to
examination, failure to treat, or delayed diagnosis or treatment on December 18, because he “did not treat
[Plaintiff] on December 18, 2018, as per the medical records and deposition testimony.”
On the issue of informed consent, Dr. Bronson opines that Dr. Manouel properly discussed the injections
with Plaintiff and his wife. He bases this opinion on the defendant’s testimony that he discussed the injections
with them and the alternatives to this treatment, i.e., being discharged with oral medication only. Dr. Manouel
testified that Plaintiff then agreed to the trigger point injection. The expert notes that LIJ does not require a signed
consent form for this procedure, so there is no detailed documentation of his consent in the record.
The movant’s infectious disease expert, Dr. Mandell, also opines that “back pain is an extremely common
symptom among patients to an emergency department” and that ordering a blood test, CT scan, and/or MRI is not
indicated unless other symptoms are present such as fever, chills, body aches, or loss of appetite. Dr. Mandell
opines that Dr. Manouel examined and treated Plaintiff in accordance with the standard of care because Plaintiff
did not present with any of these additional symptoms or with neurological deficits.
Dr. Mandell further opines that a spinal epidural abscess cannot be caused or exacerbated by the steroid
injection administered by Dr. Manouel. The expert opines that the injection was to the muscle area, not into the
spine or epidural space of the spine, and it was not deep enough to cause a spinal epidural abscess, nor worsen or
mask the symptoms of an existing infection.
Dr. Mandell also notes that Dr. Manouel “neither saw nor treated the patient again after December 13,
2018” and therefore opines that Plaintiff’s claims regarding December 18 treatment should be dismissed as to Dr.
Manouel.
Based on the submissions, Dr. Manouel has established prima facie entitlement to summary judgment on
the issue of liability in his treatment of Plaintiff. The expert opinions set forth that on Dr. Manouel’s orthopedic
examination of Plaintiff, his assessment that he had mechanical back pain, and his administration of trigger point
injections were reasonable and within good and accepted medical practice. The experts also establish prima facie
that the trigger point injections of depomedrol and lidocaine given by Dr. Manouel did not cause or exacerbate
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Plaintiff’s spinal epidural abscess. The burden therefore shifts to Plaintiff to raise an issue of fact.
Dr. Manouel takes the position that his only involvement in Plaintiff’s treatment was on December 13. In
Plaintiff’s amended bill of particulars (served prior to this motion and addressed by the movants), Plaintiff alleges
that Dr. Manouel was also present at LIJ when he was readmitted on December 18, that the doctor was informed
of Plaintiff’s updated condition and symptoms, and that he failed to timely order appropriate tests including a full
MRI of the spine. The basis for this allegation is the deposition transcript of Ms. Santana, who testified that she
saw Dr. Manouel at the hospital on December 18 and “told him about everything.” However, the conflict in
testimony over whether that conversation occurred is not material, because it is undisputed that Dr. Manouel did
not examine, consult, treat, or make any medical recommendations to Plaintiff. There is nothing in the hospital
record indicating that Dr. Manouel had any role in Plaintiff’s treatment on that date. Therefore, Dr. Manouel has
established prima facie entitlement to summary judgment on any claims against him related to medical treatment
on December 18.
Notwithstanding the above, Dr. Manouel fails to meet his prima facie burden on the informed consent
cause of action. The orthopedic expert’s opinion on consent is based solely on Dr. Manouel’s testimony that he
discussed “what the procedure is, and what the nature of this injection is and why I’m doing it” with Plaintiff and
his wife, and that Plaintiff agreed to the trigger point injections. Plaintiff’s wife recalls this conversation only to
the extent that the doctor told them what medications he was administering and that they would relieve his pain
after she asked for more information, but she testified that he did not explain potential risks or alternatives. This
differing testimony presents an issue of fact in the record that precludes a finding of summary judgment as a
matter of law (see Palmiero v Luchs, 202 AD3d 989 [2d Dept 2022] [“the plaintiff’s deposition testimony
indicates that neither doctor ever explained the risks and benefits of, or alternatives to the injections”]. Such
conflicts in testimony must be resolved by a jury (id., citing Lavi v NYU Hosps. Ctr., 133 AD3d 830, 831 [2d
Dept 2015]). The fact the hospital does not require written consent for trigger point injections does not support a
holding that this procedure does not fall under the scope of Public Health Law § 2805-d as a matter of law.
In opposition to Dr. Manouel’s motion, Plaintiff submits an expert affirmation from a licensed physician
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[name of expert redacted], certified in orthopedic surgery. A signed, unredacted copy of the affirmation has been
provided to the Court for in camera inspection.
As an initial matter, the Court finds Plaintiff’s expert has established sufficient qualifications to opine on
the alleged malpractice at issue. An expert opinion need not be provided by a specialist, but the expert must
demonstrate that they are “possessed of the requisite skill, training, education, knowledge or experience from
which it can be assumed that the opinion rendered is reliable” (DiLorenzo v Zaso, 148 AD3d 1111, 1112-1113
[2d Dept 2017]; see also Cerrone v North Shore-Long Is. Jewish Health Sys, Inc., 197 AD3d 449 [2d Dept 2021]).
The orthopedic surgeon sets forth that they have background and experience in the standard of care for
administering steroid trigger point injections and the risk factors of such injections. Contrary to the movant’s
argument in reply, the fact Plaintiff’s expert is not an infectious disease specialist does negate their ability to opine
on the appropriateness and risk factors of such injections in the context of an immuno-compromised patient or
suspected spinal abscess, nor their opinion on whether Dr. Manouel complied with the standard of care.
Plaintiff’s expert opines that on December 13, Dr. Manouel departed from the standard of care by
administering the steroid trigger point injection to a diabetic, immuno-compromised patient who had not had an
MRI, blood test, or infectious disease workup. The expert counters the opinions of Dr. Bronson and Dr. Mandell
that an infectious or inflammatory cause of Plaintiff’s back pain was appropriately ruled out by the movant’s
physical examination. In the opinion of Plaintiff’s expert, this examination did not rule out the possibility of
infection, and Dr. Manouel merely treated the symptom of pain without diagnosing its true cause. The expert also
opines that the proper course of action in accordance with the standard of care “would have been at most
administering a local anesthetic into the area to see if that would have any benefit to reduce the pain” without the
steroid.
Plaintiff’s expert further opines, based on Ms. Santana’s testimony that she spoke with Dr. Manouel at
LIJ while her husband was being treated by the emergency department on December 18, that the standard of care
required him “to become fully involved in his patient’s ongoing care and treatment and not simply walk away.”
The expert specifically opines that Dr. Manouel should have ordered a “timely and immediate MRI of the entire
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spine” due to Plaintiff’s progressing symptoms including urinary incontinence. The expert opines this delay in
obtaining a full MRI of the spine (only a lumbar spine MRI was ordered prior to his transfer to North Shore
University Hospital) was a proximate cause of a 24-hour delay from his presentation at LIJ to his first surgery at
North Shore University Hospital, then another 12-hour delay until the surgery on his cervical spine.
On the issue of causation, Plaintiff’s expert opines that the use of a steroid injection “masks infectious
symptoms and fuels the environment where an infection or abscess will flourish.” The expert opines that Dr.
Manouel’s departures from the standard of care, i.e., the trigger point injections masking Plaintiff’s symptoms
and the misdiagnosis and treatment of a sprain without ordering or reviewing any further tests, resulted in a delay
in proper diagnosis. The expert opines that this was a proximate cause of Plaintiff not receiving the necessary
surgeries to evacuate the spinal epidural abscess until December 19, and that delay allowed his condition to
significantly worsen, ultimately causing a permanent ischemic spinal cord injury and loss of use of his legs.
Plaintiff’s expert also addresses the informed consent cause of action, opining that Dr. Manouel departed
from the standard of care by insufficiently informing Plaintiff of the risks and by not offering the alternative of
injecting only lidocaine or waiting for an MRI workup or blood work to rule out an existing infection.
Plaintiff’s expert has raised clear issues of fact to defeat Dr. Manouel’s motion for summary judgment, as
it pertains to his examination and treatment of Plaintiff on December 13. Plaintiff also raises an issue of fact on
proximate causation, as the experts are in conflict as to whether the trigger point steroid injection masked his
symptoms and allowed the infection to worsen over the following days. Finally, even if the movant had met their
prima facie burden on the issue of informed consent, Plaintiff’s expert raises an issue of fact as to whether consent
was obtained with sufficient understanding of risks and alternatives to the trigger point injections. For these
reasons, Dr. Manouel’s motion for summary judgment on these claims must be denied.
Notwithstanding the above, Plaintiff fails to raise an issue of fact as to the claims that Dr. Manouel failed
to intervene in Plaintiff’s treatment and order a full spine MRI on December 18. Even accepting Ms. Santana’s
testimony that she spoke to Dr. Manouel on December 18, there is no dispute that the patient was already admitted
to the LIJ emergency department at that time. His attending physician was Khyzar Chaudhry, M.D., who had
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access to his prior records and ordered the MRI of his lumbar spine. There is no evidence based on the submissions
that Dr. Manouel or any other orthopedic specialist was called to consult on that date, nor that he provided even
informal advice to the patient or his spouse. There is also no evidence Dr. Manouel had the authority or assumed
a duty to direct treatment or order MRI imaging studies. Ms. Santana admitted elsewhere in her testimony that
Dr. Manouel only “treated” Plaintiff on December 13. “Liability for medical malpractice may not be imposed in
the absence of a physical-patient relationship. A physician-patient relationship is created when professional
services are rendered and accepted for purposes of medical or surgical treatment,” or at minimum may be implied
“when a physician gives advice to a patient” (Thomas v Hermoso, 110 AD3d 984 [2d Dept 2013]). Here, there is
no genuine issue of fact as to the lack of a physician-patient relationship between Dr. Manouel and Plaintiff on
December 18, and therefore Dr. Manouel is granted summary judgment as to those claims only.
Plaintiff does not oppose the branch of Dr. Manouel’s motion seeking to dismiss any claims of negligent
hiring, training, or supervision asserted in the bill of particulars. Accordingly, the motion is granted to the extent
of dismissing the December 18 claims and the claims of negligent hiring, training, and supervision against Dr.
Manouel and Able Orthopedics & Sports Medicine, P.C., only, and the motion is otherwise denied.
The additional issues discussed by Plaintiff, concerning whether Dr. Manouel was properly authorized by
the ER attending physician to act as an orthopedic consult on December 13, are not relevant to any claims
addressed in Dr. Manouel’s moving papers and are not part of the Court’s consideration in this motion.
Turning to the motion of Dr. Desir, the movant submits an expert affirmation from Brian Feingold, M.d.
(“Dr. Feingold”), a licensed physician certified in internal medicine.
Based on the medical records and testimony, Dr. Feingold opines that Plaintiff’s primary care physician
Dr. Desir acted in accordance with the standard of care on the dates at issue. Dr. Feingold notes that Dr. Desir
had recently seen Plaintiff for an annual exam on November 23, 2018, at which time he had a viral infection. On
December 15, Plaintiff visited Dr. Desir following his emergency room visit two days prior, as noted in the
doctor’s records. Dr. Desir noted that he had pulsating lower back pain, subjectively rated 8/10, and that he had
been given opioid, muscle relaxant, and “steroid shot” at the ER. She observed upon examination that he had
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significant muscle spasm, decreased quadriceps strength, limited range of motion, and was slouching and walking
with a limp. She prescribed Tramadol and gave him an orthopedic referral. Dr. Feingold opines that this course
of treatment based on his presentation was in accordance with the standard of care. Dr. Feingold states that a
spinal epidural abscess is “generally uncommon,” usually associated with bacteria from “self-injected drug use,
dental abscesses, infected catheters, or endocarditis,” and the symptoms include “fever, spine tenderness, sweats,
and chills” in addition to back pain. He notes that symptoms can also include “bladder or bowel incontinence
[and] numbness in extremities” as the abscess progresses. Because Plaintiff had none of these additional
symptoms on December 15, Dr. Feingold opines that “there were no overt red flags for an ongoing infection at
this visit” and that it was reasonable for Dr. Desir to attribute his back pain to a mechanical source, such as muscle
sprain or slipped disc, rather than an abscess. Dr. Feingold further opines that ordering additional MRI or CT
studies, blood work, or referring the patient back to the hospital for urgent or emergency treatment was not
indicated on December 15, and therefore he opines that Dr. Desir did not depart from the standard of care by
referring him to follow up with an orthopedist rather than return to the hospital.
Dr. Feingold also opines that Dr. Desir did not depart from the standard of care with respect to the
December 17 phone call with Ms. Santana. In the expert’s opinion, it was still a reasonable medical assumption
that Plaintiff’s chief complaint of “uncontrollable shaking” was due to a reaction or withdrawal from his
medication, and she therefore gave appropriate medical advice to cut back on said medications and follow up if
his symptoms worsened.
Further, Dr. Feingold opines that Dr. Desir’s alleged departure from the standard of care on the evening
of December 17 did not proximately cause or contribute to Plaintiff’s injuries. The expert notes that Ms. Santana
took her spouse to the emergency department of LIJ the following morning when his condition did not improve
overnight. Even if Dr. Desir had advised them to go directly to the hospital at 8:00 p.m. the previous night, as
Plaintiff asserts was the standard of care, the expert opines that the difference of approximately 12 hours between
that phone call and his arrival at the emergency room would not have changed his course of treatment, diagnosis,
or outcome.
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Based on the submissions, Dr. Desir has established prima facie entitlement to summary judgment on the
basis that there were no departures from the standard of care in her treatment or recommendations on December
15 and December 17. The expert does not address proximate causation with respect to the December 15 claims,
but he does establish prima facie that Dr. Desir’s actions on December 17 did not proximately cause or contribute
to the worsening of Plaintiff’s spinal epidural abscess.
In opposition, Plaintiff submits an expert affirmation from a licensed physician certified in internal
medicine, [name of expert redacted]. The Court was presented with the signed, unredacted affirmation for in
camera inspection.
Plaintiff’s expert opines that during the December 15 office visit, Plaintiff was “appreciably worse than
his presentation two days earlier at the emergency room,” exhibiting deep pain, spasms, limited range of motion,
a limp, and bent/slouching posture, which the expert opines are “all pain avoidance mechanisms.” The expert
notes that Dr. Desir did not document any reflex testing or more detailed findings as to his range of motion. The
expert also notes that Dr. Desir knew Plaintiff to be a diabetic and immuno-compromised patient, with elevated
blood glucose levels upon examination, and that she knew he had recently received a steroid trigger point injection
but still had worsening symptoms. According to Plaintiff’s expert, the standard of care in these circumstances
was to refer Plaintiff back to the hospital for an immediate MRI, and Dr. Desir departed from the standard of care
by failing to address his “ongoing and progressive findings” and rule out a more serious spinal issue.
The expert also opines that it was a departure from the standard of care for Dr. Desir not to ask further
questions or attempt to speak with Plaintiff directly during the December 17 phone call with his wife. The expert
opines that Dr. Desir failed to properly recognize the severity of his symptoms that evening and failed to direct
him to go back to the hospital immediately for an MRI. Dr. Desir’s notes on this phone call are limited, but Ms.
Santana testified that by that evening Plaintiff was not only shaking but was also unable to stand or walk after a
fall and he had “urinated on himself.” Plaintiff’s expert points out that even the movant’s expert stated bladder
incontinence was a symptom of a spinal epidural abscess. Therefore, the expert opines that Dr. Desir departed
from the standard of care by failing to appreciate this symptom and refer him immediately to a hospital for more
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aggressive diagnostic tests and treatment.
On the issue of proximate causation, Plaintiff’s expert opines that the alleged failure to refer Plaintiff back
to the hospital for a prompt MRI on December 15 resulted in his delayed diagnosis and treatment. Additionally,
Plaintiff’s expert counters Dr. Feingold’s statement that Dr. Desir’s alleged departures on December 17 did not
proximately cause his injuries, because Plaintiff ultimately did return to the LIJ emergency room the following
morning. Plaintiff’s expert opines that “in a situation where there is potential for ischemic compromise of the
cord . . . time is of the essence.” The expert opines that the delay of 12-15 hours between the phone call with Dr.
Desir and his arrival at LIJ was significant. In that time, the expert notes, he could have begun antibiotics, received
appropriate radiological studies, and been transferred more quickly to North Shore University Hospital for
surgery. Thus, Plaintiff’s expert opines this delay contributed to a worse outcome and more permanent injuries.
The submissions from Plaintiff’s expert have sufficiently raised issues of fact to defeat Dr. Desir’s
summary judgment motion. Where experts express conflicting opinions as to the standard of care and proximate
causation, only the jury may make a determination on these issues of fact and credibility.
Notwithstanding the above, Plaintiff’s expert does not address the issue of informed consent with respect
to Dr. Desir, and this cause of action is not applicable to the underlying facts. Based on the record and the parties’
submissions, Dr. Desir did not perform any treatment or procedure on the dates in question that involved
“affirmative violation of the plaintiff’s physical integrity” (Samer v Desai, 179 AD3d 860, 864 [2d Dept 2020]).
Plaintiff also does not oppose the branch of the motion seeking to dismiss any claims of negligent
hiring/training/supervision as asserted in the bill of particulars. Accordingly, the motion is granted to the extent
of dismissing the informed consent cause of action and the claims of negligent hiring, training, or supervision
against Dr. Desir and Mergie Desir, M.D., P.L.L.C., only, and the motion is otherwise denied.
It is hereby:
ORDERED that Defendants Dr. Manouel and Able Orthopedics & Sports Medicine, P.C.’s motion
(Seq. No. 4) for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing all
claims and causes of action against them, is GRANTED TO THE EXTENT of dismissing the claims arising
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from alleged treatment or care on December 18, and dismissing any claims for negligent hiring, training, and
supervision, and the motion is otherwise DENIED; and it is further
ORDERED that Defendants Dr. Desir and Mergie Desir, M.D., P.L.L.C.’s motion (Seq. No. 5) for an
Order, pursuant to CPLR 3212, granting summary judgment in their favor, dismissing all claims against them,
and removing them from the caption of this action, is GRANTED TO THE EXTENT of dismissing the cause
of action for lack of informed consent against them, and dismissing any claims of negligent hiring, training, and
supervision against them, and the motion is otherwise DENIED.
This constitutes the decision and order of this Court.
ENTER.
_______________________________ Hon. Consuelo Mallafre Melendez J.S.C.
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