Walters v. Brookdale Univ. Hosp. & Med. Ctr.

2025 NY Slip Op 30155(U)

• Court: New York Supreme Court, Kings County
• Decided: January 13, 2025
• Docket: Index No. 5078/2012
• Status: Unpublished

Opinion

Walters v Brookdale Univ. Hosp. & Med. Ctr. 2025 NY Slip Op 30155(U) January 13, 2025 Supreme Court, Kings County Docket Number: Index No. 5078/2012 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 01/15/2025 01:01 P~ INDEX NO. 5078/2012 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/15/2025

At Part 80 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, located at 360 Adams Street, Brooklyn, New York, on the 13 th day of January 2025.

PRESENT Hon. Genine D. Edwards, Justice ----------------------------------------------------------------------x NADINE WALTERS,

Plaintiff, Index No. 5078/2012

-against-

THE BROOKDALE UNIVERSITY HOSPITAL AND MEDICAL CENTER, DR. MUNEER CHAUDHARY, and DR. SANDRA ROBINSON, Defendants. ----------------------------------------------------------------------x

The following e-filed papers read herein: NYSCEF Nos.:

Notice of Motion, Affirmation, and Exhibits ................................................ 3-46 Affirmation in Opposition and Exhibits ...................................................... 50-55 Affirmation in Reply ............................................................................ 57

In this action for medical malpractice, Nadine Walters ("plaintiff') alleged that defendants

deviated from the standard of care by failing to diagnose a tendon laceration during an Emergency

Department ("ED") presentation on July 17, 2011. Dr. Muneer Chaudhary ("Dr. Chaudhary")

observed plaintiff's injury by palpating her wound and determined that she had a superficial

laceration that did not require a magnetic resonance imaging ("MRI") after an x-ray revealed no

foreign object in the wound.

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Defendants moved pursuant to CPLR §3212 seeking an extension of time to file the instant

summary judgment motion and, upon granting of the time extension, dismissing plaintiffs claim.

Plaintiff opposed defendants' motion.

The elements of a medical malpractice claim are a deviation or departure from accepted

practice and evidence that such a departure was the proximate cause of injury or damage. McHale

v. Sweet, 217 A.D.3d 666, 190 N.Y.S.3d 438 (2d Dept. 2023). A defendant's negligence is the

proximate cause when it is a substantial factor in producing the injury. Templeton v. Papathomas,

208 A.D.3d 1268, 175 N.Y.S.3d 544 (2d Dept. 2022).

Summary judgment is warranted where the movant can demonstrate the absence of any

relevant material issue of fact, and therefore is entitled to judgment as a matter of law. Alvarez v.

Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986); see Winegrad v. New York Univ. Med.

Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985). "When moving for summary judgment, a

defendant ... must establish the absence of any departure from good and accepted medical practice

or that. .. plaintiff was not injured thereby." Barnaman v. Bishop Hucles Episcopal Nursing Home,

213 A.D.3d 896, 184 N.Y.S.3d 800 (2d Dept. 2023). To sustain this burden, a defendant "must

address and rebut any specific allegations of malpractice set forth in plaintiff's bill of particulars."

D.S. v. Poliseno, 189 A.D.3d 1102, 133 N.Y.S.3d 831 (2d Dept. 2020).

In opposition, the plaintiff must "raise a triable issue of fact regarding the element or

elements on which defendant has made its prima facie showing." G. MC. v. 0 'Sullivan, 197 A.D.3d

1230, 153 N.Y.S.3d 565 (2d Dept. 2021). To do so, plaintiff must submit the affidavit of a physician

attesting to a departure from good and accepted practice, and stating the physician's opinion that

the alleged departure was a competent producing cause of plaintiff's injuries. Larey v. Kamler, 185

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A.D.3d 564, 127 N.Y.S.3d 122 (2d Dept. 2020); Simmons v. Rubano, 78 Misc.3d 1230(A), 186

N.Y.S.3d 923 (Sup. Ct., Kings County 2023).

ANALYSIS

Here, defendants failed to establish prima facie entitlement to judgment as a matter of law.

While defendants' counsel described the procedural history of the instant action in detail

warranting a time extension for the instant motion, defendants' counsel failed to provide a

statement of facts, in violation of 22 NYCRR 202.8. Defendants instead rely on the submission of,

inter alia, the affirmation of Robert H. Meyer M.D. ("Dr. Meyer") to summarize the pertinent

medical care and timeline. Dr. Meyer references an expert report by David Nidorf, M.D. ("Dr.

Nidorf'), and defendants annexed that report as an exhibit to the instant motion. Dr. Meyer and

Dr. Nidorf disagree on whether performing an MRI is the appropriate standard of care required to

properly diagnose plaintiff's injury. "Summary judgment is not appropriate in a medical

malpractice action where the parties adduce conflicting medical expert opinions. Cerrone v. North

Shore-Long Is. Jewish Health Sys., Inc., 197 A.D.3d 449, 152 N.Y.S.3d 147 (2d Dept. 2021); see

also Gupta v. Lescale, 224 AD3d 668,204 N.Y.S.3d 554 (2d Dept. 2024).

Moreover, Dr. Chaudhary testified that an MRI would be the gold standard for determining

the seriousness of the laceration and that an x-ray, limited in scope, would not reveal a tom tendon

injury. Dr. Chaudhary's reason for not performing the MRI was that he determined that plaintiff

did not need one and that the section of the hospital that performs MRis was closed at the time of

plaintiff's diagnosis. Dr. Chaudhary further testified that a tom tendon in the foot would cause a

loss of sensation, an inability to move the foot, and a pain that could be moderate or severe. Dr.

Chaudhary admitted that plaintiff represented that she could not move her toe, and that on a scale

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from 1-10 plaintiff reported a pain level of 5-6 at the beginning of her ED visit and a pain level of

3-4 at the end. Three days after her ED visit, plaintiff went to a surgery clinic and represented that

she could not move her toe. As such, questions of fact remain, precluding summary judgment.

Accordingly, it is

ORDERED that defendants' motion for summary judgment is denied, and it is further

ORDERED that plaintiff's counsel is directed to electronically serve a copy of this

decision/order with notice of entry upon all counsel and to electronically file an affidavit of service

with the Kings County Clerk, and it is further

ORDERED that the parties shall appear for an Alternative Dispute Resolution conference

on March 10, 2025, at 12PM.

This constitutes the Decision and Order of this Court.

For Clerks use only MG MD Motion Segs.#: 10 Hon. Genine D. Edwards Arlministr~~iui::::, . h trlne

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