ERIC P. MILGRIM, as the Public Administrator of the Estate of Dr. A.S. MISHRICK AND DR. JOHN STAMATOS,

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1 SHORT FORM ORDER?C-, SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. DANIEL PALMIERI Acting Justice Supreme Court x GAY SOLONCHAK and STEPHAN SOLONCHAK, TRIAL TERM PART: 47 -against- Plaintiff, ERIC P. MILGRIM, as the Public Administrator of the Estate of Dr. A.S. MISHRICK AND DR. JOHN STAMATOS, INDEX NO. :019579/02 MOTION DA TE:3-13- SUBMIT DATE:7-21- SEQ. NUMBER & 004 Defendants x The following papers have been read on this motion: Notice of Motion, dated Affirmation in Opposition, dated Reply Affirmation, dated Notice of Motion, dated Affirmation (in reply), dated This motion by the defendant John Stamatos, M.D. for an order pursuant to CPLR 3212 granting him summary judgment dismissing the complaint against him is granted. This motion by defendant Eric P. Milgrim, as Public Administrator for the Estate of Dr. A. S. Mishrick, for an order pursuant to CPLR 3212 granting him summar judgment dismissing the complaint against him is denied.

2 In this medical malpractice action, the plaintiffs seek to recover damages for the allegedly negligent implantation of a spinal cord stimulator into plaintiff Gay Solonchak' stomach and back. The device ultimately extruded through Ms. Solonchak' s skin and had to be removed. The plaintiffs allege that this was the result of the defendants ' negligence. The defendant doctors are anesthesiologist Dr. Stamatos and general surgeon Dr. Mishrick, who together implanted the stimulator, and managed Ms. Solonchak' post-operative care. They seek summary judgment dismissing the complaint against them. On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Sheppard-Mobley King, 10 AD3d (2d Dept. 2004), aff' d. as mod., 4 NY3d 627 (2005), citing Alvarez Prospect Hosp. 68 NY2d 320, 324 (1986); Winegrad New York Univ. Med. Ctr. 64 NY2d 851, 853 (1985). " Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Sheppard-Mobley King, supra at p. 74, citing Alvarez Prospect Hosp., supra; Winegrad New York Univ. Med. Ctr., supra. If the movant meets his burden, the burden 1 The former first named defendant, North Shore University Hospital at Syosset, was granted summar judgment by Justice Roberto (Order dated April 25, 2005), who directed that its name be deleted from the caption. Dr. Mishrick subsequently died, and after a long delay, the Public Administrator was appointed as the estate representative. 2 The Cour notes that it has yet to receive a formal notice of appearance from the attorney representing Eric P. Milgrim, the Public Administrator. However, a member of the firm of Furey, Kerley, Walsh, Matera & Cinqueman, PC, has affirmed that the firm is counsel of record papers submitted by the for the Public Administrator. Accordingly, the Court has considered all firm.

3 , " shifts to the opposing part to establish the existence of a material issue of fact. Alvarez Prospect Hosp., supra, at p The evidence presented by the opponents of summary judgment must be given the benefit of every reasonable inference. Community Housing Management Corp. See, Demishick 34 AD3d 518, 521 (2d Dept. 2006), citing Secof Greens Condominium 158 AD2d 591 (2d Dept. 1990). To establish a prima facie case of liabilty in a medical malpractice action, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach of the standard was the proximate cause of injury (quotations omitted). Sampson Contilo, 55 AD3d 588 (2d Dept. 2008), quoting Nichols Stamer 49 AD3d 832 (2d Dept. 2008) and Berger Becker 272 AD2d (2d Dept. 2000). A moving defendant doctor and/or hospital has "the initial burden of establishing the absence of any deparure from good and accepted medical malpractice or that the plaintiff was not injured thereby (quotations omitted). Chance Felder 33 AD3d 645 (2d Dept. 2006), quoting Wiliams Sahay, 12 AD3d 366, 368 (2d Dept. 2004), and citing Alvarez Prospect Hosp., supra; Johnson c., Queens-Long Island Medical Group, P. 23 AD3d (2d Dept. 2005); Taylor Nyack Hospital 18 AD3d 537 (2d Dept. 2005); see also, Flanagan Catskil Regional Medical Center - AD3d _ 2009 WL (2 Dept. 2009); Thompson Orner, 36 AD3d 791 (2d Dept. 2007). If the moving defendant meets his burden in a medical malpractice action a plaintiff must submit a physician s affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor s opinion that the the injury. defendant's omissions or departres were a competent producing cause of

4 Domaradzki Glen Cove Ob/Gyn Assocs., 242 AD2d 282 (2d Dept. 1997), citing Cer/eenik by Cerkvenikv County of Westchester 200 AD2d 703 (2d Dept. 1994); Caggiano Ross, 130 AD2d 538 (Dept. 1987); Amsler Verrili 119 AD2d 786 (2d Dept. 1986); see also, Flanagan Catskil Regional Medical Center, supra; Mosezhnik Berenstein 33 AD3d 895 (2d Dept. 2006). However " (gjeneral allegations that are conc1usory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment (quotations omitted). Flanagan Catskil Regional Medical Center, supra quoting Rebozo Wilen 41 AD3d 457, 458 (2d Dept. 2007), and citing Alvarez Prospect Hosp., supra at p ; Sheenan- Conrades Winifed Masterson Burke Rehabilitation Hosp. 51 AD3d 769, 770 Dept. 2008); Thompson Orner, supra at p. 792; DiMitri Monsouri, 302 AD2d 420 (2d Dept. 2003). While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field... the witness nonetheless should be possessed of the requisite skil, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable (quotations omitted). Postlethwaite United Health Servs. Hosps. 5 AD3d 892, 895 (2004), quoting Matter of Enu Sobol 171 AD2d 302, 304 (3d Dept. 1991), and citing Fuller Preis 35 NY2d (1974); Payant Imobersteg, 256 AD2d 702, (3d Dept. 1998); Matott Ward, 48 NY2d 455, 459 (1979). "Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliabilty of

5 the opinion rendered. Mustello Berg, 44 AD3d 1018, 1019 (2d Dept. 2007), citing Romano Stanley, 90 NY2d (1997); Behar Coren 21 AD3d (2d Dept. 2005), Iv den. 6 NY3d 705 (2006); Nangano Mount Sinai Hosp. 305 AD2d 473 (2d Dept. 2003); Bodensiek Schwartz 292 AD2d 411 (2d Dept. 2002); Julien Physician s Hosp. 231 AD2d 678 (2d Dept. 1996). In addition, an expert must set forth both the medically accepted procedures and/or standards and detail that they were complied with or how they were departed from. Geffner North Shore University Hospital 57 AD3d 839 (2d Dept. 2008), citing Mustello Berg, supra; Behar Cohen supra; LaMarque North Shore Univ. Hosp., supra. In support of his motion, Dr. Stamatos has submitted the affidavit of Dr. Baron Hoexter, a Board Certified Surgeon licensed to practice medicine in New York State. He attests to having "years of experience in the implantation of medical devices and the management of surgical wounds. " Having reviewed the Bil of Particulars, Ms. Solonchak' s medical records and the transcripts of the examinations before trial, he opines that "there is nothing in the records or (Dr. Stamatos J testimony to indicate that the surgery he performed or his postoperative management was improper. Dr. Hoexter notes that Mrs. Solonchak had experienced three years of chronic back pain and had exhausted all avenues of medical management without success before she presented to Dr. Stamatos. Dr. Hoexter states that Dr. Stamatos accordingly discussed the implantation of a spinal cord stimulator which had been successfully used by him to control severe chronic back pain. He explains that the procedure involves the

6 , " implantation of a generator which looks like a cardiac pacemaker underneath the subcutaneous fat in the patient' s abdomen, to which leads are attached and then tunneled through the skin along the waistlne and attached to an electrode placed in the epidural space. The stimulator is controlled by the patient via a hand-held device. It emits a precisely controlled mild electrical impulse to the spinal cord blocking the pain signal which travels to the brain. In view of her history, Ms. Solonchak was an appropriate candidate for the device. The expert also concludes that Dr. Stamatos properly advised Ms. Solonchak of all the risks attendant to the procedure. In fact, at her examination before trial, Ms. Solonchak acknowledged that she knew that the device may not work that she could develop an infection and that death could even result. Dr. Hoexter opines that "since the risk of extrusion is so remote, there was no need to disclose it." Dr. Hoexter states that Ms. Solonchak' s medical records indicate that the surgery performed on June , went without complication and that Ms. Solonchak was discharged in good condition. He contends that while she developed " a hematoma (a collection of blood) in the abdominal pocket where Dr. Mishrick placed the generator (tjhis is a well known complication following surgery which did not imply improper surgical technique. " Dr. Hoexter opines that Ms. Solonchak was appropriately hospitalized by Dr. Stamatos the next day for observation and discharged the following day with minimal drainage from her abdominal wound. He states that while Ms. Solonchak " stil had a significant hematoma and swellng in the abdomen" when she was seen by Dr. Stamatos six days later (tjhis was to be expected" and Dr. Stamatos appropriately referred her to Dr. Mishrick for the management of (thatj surgical

7 complication. " Dr. Hoexter notes that in the ensuing weeks, Ms. Solonchak was seen by both doctors and when Dr. Stamatos observed slight drainage from the incision in Ms. Solonchak' s back in late June, he properly placed her on an antibiotic as a prophylactic measure to prevent infection. When she next saw Dr. Stamatos on July 25, 2000, Ms. Solonchak told him that she had developed a large blood clot at the hematoma site which Dr. Mishrick had evacuated, and she reported feeling better thereafter and was experiencing pain relief from the stimulator. Importantly, Dr. Hoexter states that Dr. Stamatos "properly left the management of (Ms. Solonchak' sj abdominal wound to Dr. Mishrick." Dr. Hoexter notes that when Dr. Stamatos again saw Ms. Solonchak on August 8, her wounds were almost completely healed and she was experiencing pain relief. Similarly, Dr. Hoexter observes that when Dr. Stamatos saw Ms. Solonchak on August 22, 2000, her back wound was completely healed, her abdominal wound was almost healed and she continued to experience pain relief. Dr. Hoexter notes that Dr. Mishrick continued to treat Ms. Solonchak for her abdominal wound, and so Dr. Stamatos s care and treatment was "entirely appropriate. Dr. Hoexter notes that at her September 5, 2000 visit to Dr. Stamatos, Ms. Solonchak reported a significant reduction in back pain which in fact enabled her to increase her activity. Dr. Hoexter opines that while her abdominal wound continued to ooze, Dr. Stamatos properly continued to refer her to Dr. Mishrick for its treatment. Dr. Hoexter notes that when she saw Dr. Stamatos on September , both Ms. Solonchak' abdominal and back incisions were continuing to heal and her pain was being managed.

8 Ms. Solonchak' s medical records reveal that Ms. Solonchak presented to Dr. Mishrick on October 6, 2000, complaining that her abdominal skin over the generator appeared thinner. Two days later, when she was changing her abdominal bandage, she found that her spinal cord stimulator had eroded through her skin. As directed by Dr. Stamatos, she went to the emergency room that day and Drs. Stamatos and Mishrick removed the generator the following day. The culture from her abdominal wound was negative, indicating that there was no infection. Dr. Hoexter notes that when Ms. olonchak next saw Dr. Stamatos, they discussed removing the leads and electrodes but in light of the pain relief she had experienced, she opted to keep them hoping that the generator could eventually be re-implanted, which, Dr. Hoexter opines, was appropriate. Dr. Hoexter notes that unfortnately, both the leads and electrodes also started to erode through the skin shortly thereafter, the leads on October 27, 2000 and the electrode on January , and that they were all appropriately removed by Dr. Stamatos. Dr. Hoexter notes that cultures taken from the back incision were also negative for infection. Dr. Hoexter notes that Ms. Solonchak continued to see Dr. Stamatos for pain management through December, She tested negative for allergies to the device and while she would have allowed Dr. Stamatos to re-implant the devices, she would not do so with Dr. Mishrick assisting, which Dr. Stamatos insisted upon. Dr. Hoexter summarizes the cause of the patient's problem as follows: " (IJt is well known that certain patients wil reject surgically implanted foreign bodies, of all types. There can be various reasons for that, including infection and allergies, both of which

9 were ruled out here. This patient simply had an unfortunate, idiosyncratic reaction to the spinal cord stimulator which caused her body to reject all of its component parts over time. Both doctors testified that (sicj had never seen a similar case. " As for the hematoma, Dr. Hoexter states that that is "a well known and accepted complication of surgical wounds" and that while Dr. Stamatos was overseeing it, Dr. Mishrick was treating it. He opines that the hematoma did not suggest that Ms. Solonchak' s body was going to reject the stimulator; from Dr. Stamatos sperspective, the wound which was being treated by Dr. Mishrick and was slowly healing, and Ms. Solonchak was getting excellent pain relief. There was therefore no reason for Dr. Stamatos to electively remove the spinal cord stimulator. Accordingly, Dr. Hoexter concludes that Dr. Stamatos' care and treatment of Ms. Solonchak was in accordance with good and accepted medical practice. " Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient." Chulle DiStefano 242 AD2d 657, 658 (2d Dept. 1997), Iv dism 91 NY2d 921 (1998), citing Markley Albany Med. Ctr. 163 AD2d (3d Dept. 1990); see also, Wasserman Staten Island Radiological Associates 2 AD3d 713 (2d Dept. 2003). Dr. Hoexter s has shown that Dr. Stamatos' deferral to Dr. Mishrick for wound treatment was appropriate and was acceptable under the circumstances. See, Wasserman Staten Island Radiological Associates, supra citing Chulla DiStefano, supra; Markley Albany Med. Ctr. Hosp., supra. Dr. Hoexter has also established that Dr. Stamatos' care and treatment

10 of Ms. Solonchak was otherwise in accordance with prevailng medical standards. The Cour thus finds that Dr. Stamatos has established his entitlement to summary judgment thereby shifting the burden to the plaintiffs to establish the existence of a material issue of fact. The Court reaches a different conclusion with regard to Dr. Mishrick. He relies solely on Dr. Stamatos s expert, Dr. Hoexter, in seeking summar judgment. While that does not necessarily require denial of his application, Dr. Hoexter did not pass upon Dr. Mishrick' s management of Ms. Solonchak' s wound care. In fact, he repeatedly concurs with Dr. Stamatos s deferral to Dr. Mishrick for that care. There being no additional evidence regarding the nature and appropriateness of the treatment Dr. Mishrick rendered to the plaintiff, Dr. Mishrick has not established his primafacie entitlement to summary judgment dismissing the complaint against him, and his motion must therefore be denied without regard to the strength of the opposing papers. Winegrad v. New York Univ. Med. Ctr. 64 NY2d 851 supra. In opposition to the motion made by Dr. Stamatos, the plaintiffs have submitted the affirmation of an ", a physician duly licensed to practice in the State of New, and had York" pursuant to CPLR He affirms that he consulted with Ms. Solonchak reviewed Dr. Hoexter' s affidavit and the motion papers. He states that " (bjased on the information provided to me, it seems that the ultimate explantation/removal of the surgical stimulating device was probably due in part to the post operative hematoma that developed in the abdomen which may have become infected and subsequently caused the

11 skin to break down and requiring removal. The postoperative hematoma led to this occurrence. " (Emphasis supplied.) The expert contends that while these are all known complications of the implantation of medical devices and spinal cord stimulators, a large hematoma that occurs immediately after surgery and that subsequently requires hospitalization and continues to drain would imply inadequate intraoperative hemostasis. He believes "that if the hematoma had not developed, the subsequent cascade of events that ultimately led to the removal of the implant would not have happened. " Based upon a reasonable degree of medical certainty, he concludes that "the failure ofdrs. Mishrick and Stamatos to achieve adequate intraoperative hemostasis was the cause of the post-surgical hematoma, which led to the stimulator breaking through Ms. Solonchak' abdomen. " The plaintiffs' expert has failed to establish his specialty or his qualifications to evaluate on Dr. Stamatos' care and treatment of Ms. Solonchak. In addition, his conclusions are both speculative and inconclusive. He has not set forth the medically appropriate standards of care, nor has he identified how Dr. Stamatos s care of Ms. Solonchak-based upon the facts in the record-deviated from them. Furthermore, he fails to differentiate between the roles played by the two defendant doctors. The plaintiffs have accordingly failed to establish the existence of a material issue of fact regarding the care and treatment provided by Dr. Stamatos. In sum, Dr. Stamatos is entitled to summary judgment and the complaint is dismissed as to this defendant. Milgrim, as Public Administrator, has failed to make out a

12 prima facie case for dismissal of the action as it is asserted against him, and his motion is therefore denied. The action is severed and continued against Milgrim. This shall constitute the Decision and Order of this Court. DATED: August ENTER TO: Koval, Rejtig & Dean, PLLC Attorneys for Plaintiffs 114 Old Country Road, Ste. 114 Mineola, NY McHenry, Horan & Lapping, P. By: Judith Pilatsky Attorneys for defendant John Stamatos, M.D., s/h/a John Stamatos 6800 Jericho Turnpike, Ste. 202E Syosset, NY HON. DANIEL PALMIERI Acting Supreme Court Justice ENTERED SEP NAS&Au "ourffv CO CLERK' OfE Furey, Kerley, Walsh, Matera & Cinquemani, P. Attorneys for Defendant Eric P. Milgrim, as Public Administrator for the Estate of Dr. A.S. Mishrick 2174 Jackson Avenue Seaford, NY 11783