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The defendants in this case have motioned for summary judgment to dismiss the complaints made against them.

Case Background
The plaintiff filed an instant complaint against the defendants on the 22nd of May, 2000. The complaint alleges that the law firm defendant’s representation of him in an underlying medical malpracticeaction constitutes legal malpractice. The plaintiff also alleges that the defendant insurance company breached its contract with him by failing to provide him with adequate representation in the underlying action.

The instant action was brought before this court after the defendant’s motion to dismiss the complaint on the statute of limitation grounds was denied and after discovery proceedings were held in response to the defendant’s demands for greater specificity in the plaintiff’s bill of particulars.

The law firm defendants moved to dismiss the complaint for failure to state a cause of action. A conference was held and it was determined that the motion would be treated as a motion for summary judgment.

Underlying Case
The underlying medical malpractice case that is the basis for the legal malpractice claim was started by a former patient of the plaintiff. The patient had surgery to remove tumors in the endometrial lining of her uterus. After surgery it was recommended that she follow a post-operative treatment that included chemotherapy and radiation. She was also eligible for an experimental protocol that was developed by another doctor.

The patient chose to work with the plaintiff and his alternative protocol involved a diet, a number of vitamins and mineral supplements, and six coffee enemas each day. After a period of treatment it was discovered that there were cancer cells in the spine of the patient. After this discovery the patient returned to the other hospital for radiation and chemotherapy. During this time she started having problems with her hips, back, and eyesight.

The patient sued the plaintiff alleging that he departed from good and accepted medical practice in the area of cancer treatment for endometrial cancer in that he caused her to reject the orthodox treatment of chemotherapy and radiation that would have helped her.
The defendant law firm was chosen by the defendant insurance company to represent the plaintiff in the medical malpractice case. The jury in the case found the plaintiff of this case 51% responsible for the injuries sustained by the patient.

Current Complaint and Court Decision
The plaintiff states that the negligence of the law firm is the proximate cause of the damages that he was ordered to pay. The plaintiff raises eight issues that he claims a departure from good and accepted legal practice. These issues include failing to properly investigate the case, failing to obtain discovery documents, a conflict of interest, as well as other issues.
The court has reviewed the documents and evidence that have been presented by both sides and it is determined that the motion for summary judgment to dismiss the complaint against the legal defendants should be granted. The issue against the insurance company will continue as there are triable issues of fact regarding the coverage and the conflict of interest of the insurance company.
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The plaintiff asserts that while he was a patient at the defendant hospital he was attacked and hit by another patient at the hospital who allegedly is known to possess violent and dangerous propensities. The patient claims that the hospital and its employees were negligent in permitting a known violent patient to be present around other patients.

Case Discussion
A compliance conference was held regarding the case and an issue arose as to whether or not a medical malpractice panel hearing should be conducted. The issue was made formal during the conference and the plaintiff is now moving for an order to dispense with the medical malpractice panel hearing on the grounds that within the cause of action is for negligence rather than medical malpractice.

In opposition to the motion the defendants argue that the crux of the plaintiffs claim is that the defendant hospital failed to diagnose the assailant’s violent and dangerous propensities and failed to take the appropriate steps to treat the dangerous propensities so that the assault on the plaintiff could have been avoided. This information involves a claim of medical malpractice and not simple negligence and because of this should be the subject of a panel hearing. The defendant further argues that at a pre-calendar conference a medical malpractice preference was obtained by the plaintiff which indicates that a medical malpractice panel is warranted.

Court Decision
The contention that the medical malpractice preference was obtained by the plaintiff at the pre-calendar conference is found to be without merit since it is apparent that the issues being raised in this court have not been raised previously.

The issue before the court is whether or not an action that is brought forth by a patient of a hospital against the hospital because of the behavior of another patient in the hospital should be deemed a medical malpractice action so that it falls within the medical malpractice requirement.

In this case the plaintiff alleges a breach of duty by the hospital in the failure of the defendant to adequately restrain, supervise, and exercise care for his safety. The plaintiff alleges a cause of action for common law negligence and not for medical malpractice.

When considering the facts of this particular case the plaintiff is not suing the hospital based on the care provided to the plaintiff by the personnel of the hospital, but rather for what the hospital failed to do in treating the third person. When considered in this way it is seen to impose liability upon the hospital because the plaintiff was harmed by the alleged negligent care given to a non-party.

After careful consideration the court finds that this is a matter of general negligence and for that reason it should not be sent to a malpractice panel. The motion made by the plaintiff is granted and the case will be listed as a general negligence issue.
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Malpractice 88
The plaintiff alleges that she was injured due to the negligence and malpracticecommitted by the defendant who is a licensed podiatrist. The action against the defendant was started by service of a summons and complaint. The plaintiff asserts at this point that all of the pretrial proceedings have been completed and now moves for trial. The plaintiff states that she is entitled to special preference under CPLR 3403.

The defendant argues that the plaintiff’s action is for podiatric malpractice, which is separate from the practice of medicine and because of this is not entitled to special preference under CPLR 3403. The defendant further argues that the motion is premature because the plaintiff has not filed a note of issue and statement of readiness.

Court Discussion
The issues before the court relate to the motion by the plaintiff and whether or not podiatry is encompassed by the language “medical malpractice” as discussed in CPLR 3403. If podiatry is considered under medical malpractice, should the case be given preference on the court calendar? Finally, the question is whether the plaintiff has shown destitution to warrant this relief is granted.

The defendant argues for a narrow construction of the fifth paragraph of the law which finds that podiatry is a separate and distinct from the practice of medicine. The defendant would have the court come to the conclusion that the medical preference that is referred to in this particular law does not apply in this particular case.

It is true that podiatry has been held as a separate and distinct field from the practice of medicine. However, there are some cases where it cannot be disputed that podiatry is treated as a medical malpractice action. In fact, podiatry is considered a branch of healing and there is a panel hearing required before a trial can be conducted, the same as any type of medical malpractice case.

In order to come to the conclusion that podiatry is separate from other medical practices would mean that there would never be a podiatric malpractice case that would come to trial.
The other argument made by the defendant is that the plaintiff has not filed a note of issue precluding such relief.

Court Decision
The court has reviewed all of the issues that have been presented in this instant action and has concluded that the plaintiff’s motion is granted to the extent that the action will be given special preference based upon paragraph five of the law in question. However, the motion is denied otherwise and the action will be sent for a panel hearing in its regular order after a filing of a note of issue and a statement of readiness by the plaintiff.
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The defendants in this case have motioned for summary judgment to dismiss the complaints made against them.

Case Background
The plaintiff filed an instant complaint against the defendants on the 22nd of May, 2000. The complaint alleges that the law firm defendant’s representation of him in an underlying medical malpracticeaction constitutes legal malpractice. The plaintiff also alleges that the defendant insurance company breached its contract with him by failing to provide him with adequate representation in the underlying action.

The instant action was brought before this court after the defendant’s motion to dismiss the complaint on the statute of limitation grounds was denied and after discovery proceedings were held in response to the defendant’s demands for greater specificity in the plaintiff’s bill of particulars.

The law firm defendants moved to dismiss the complaint for failure to state a cause of action. A conference was held and it was determined that the motion would be treated as a motion for summary judgment.

Underlying Case
The underlying medical malpractice case that is the basis for the legal malpractice claim was started by a former patient of the plaintiff. The patient had surgery to remove tumors in the endometrial lining of her uterus. After surgery it was recommended that she follow a post-operative treatment that included chemotherapy and radiation. She was also eligible for an experimental protocol that was developed by another doctor.

The patient chose to work with the plaintiff and his alternative protocol involved a diet, a number of vitamins and mineral supplements, and six coffee enemas each day. After a period of treatment it was discovered that there were cancer cells in the spine of the patient. After this discovery the patient returned to the other hospital for radiation and chemotherapy. During this time she started having problems with her hips, back, and eyesight.

The patient sued the plaintiff alleging that he departed from good and accepted medical practice in the area of cancer treatment for endometrial cancer in that he caused her to reject the orthodox treatment of chemotherapy and radiation that would have helped her.

The defendant law firm was chosen by the defendant insurance company to represent the plaintiff in the medical malpractice case. The jury in the case found the plaintiff of this case 51% responsible for the injuries sustained by the patient.

Current Complaint and Court Decision
The plaintiff states that the negligence of the law firm is the proximate cause of the damages that he was ordered to pay. The plaintiff raises eight issues that he claims a departure from good and accepted legal practice. These issues include failing to properly investigate the case, failing to obtain discovery documents, a conflict of interest, as well as other issues.

The court has reviewed the documents and evidence that have been presented by both sides and it is determined that the motion for summary judgment to dismiss the complaint against the legal defendants should be granted. The issue against the insurance company will continue as there are triable issues of fact regarding the coverage and the conflict of interest of the insurance company.
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The plaintiff is appealing an order made by the Supreme Court of Suffolk County that granted the defendant’s motion to leave to reargue their motion for summary judgment. Upon re-argument, the court vacated the previous amended complaint and granted the defendant’s motion for summary judgment.

Case Background
The plaintiff noticed a lump in her left armpit and was referred for a CT scan and mammography. The CT scan was done at the hospital and the defendant is the radiologist that read the scan. The defendant read the scan as negative and reported his findings to the plaintiff’s referring physician. The mammogram was also interpreted as negative a few weeks later by a non-party radiologist.

A year later, in the summer of 2001, the plaintiff was diagnosed with stage four breast cancer. In December of 2001, the plaintiff and her husband started this action to recover damages for medical malpractice.

In the pleadings it was alleged that the radiologist defendant departed from good and accepted standards by failing to diagnose the plaintiff’s breast cancer and that the hospital was liable for the medical malpractice.

The plaintiff passed away in 2004 and her husband was appointed as administrator of the estate and was substituted as the complainant in the case.

After discovery the defendants moved for summary judgment to dismiss the complaint against them. To support their case they offered expert testimony attesting that the defendant did not depart from the applicable standard of care because his reading of the CT scan was correct.

The plaintiff offered evidence from their own expert that stated that the defendant departed from the good and accepted standards of radiological practice and these departures resulted in her diagnosis being delayed.

The Supreme Court denied the motion for summary judgment by the defendant’s, but allowed the defendants to re-argue. Upon re-argument, the motion for summary judgment was granted in favor of the defendants and the complaint was dismissed.

Case Discussion
The issue before the court is whether in a medical malpractice case where the defendant physician moves for summary judgment and only makes a prima facie showing that he/she did not depart from good and accepted medical practice the plaintiff has to make a triable issue of fact in regard to this element of the medical malpractice cause of action, but to the causation as well. The court is clarifying that this requirement does not exist.

Court Decision
The court has reviewed the facts of the case and it is determined that the Supreme Court was correct in the decision to grant the motion for summary judgment in favor of the defendant. The defendant showed prima facie that he/she did not stray from the accepted standard of care. The plaintiff has failed to raise a triable issue of fact in this case. For this reason, the motion for summary judgment is affirmed and the appeal is denied.
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This is a medical malpractice action. The plaintiffs are seeking damages, personal and derivative, for injuries that were allegedly sustained by the recipient plaintiff as a result of the care and treatment he received from March 30th, 2007 through May 17th, 2007. The recipient plaintiff underwent a kidney transplant in March of 2007.

The plaintiffs allege that the defendants departed from accepted medical standards in the recipient plaintiffs care and treatment. The plaintiffs further alleges that the defendant physicians that were caring for the pediatric patient who was the donor departed from accepted medical standards when they failed to diagnose cancer in the donor while he was a patient at a non-party hospital. The plaintiffs further allege that the New York Organ Donor Network was negligent in failing to properly evaluate the suitability of the donor’s organs for transplantation.

Case background
The records in the case indicated that the recipient plaintiff received a kidney transplant from the donor who had died of bacterial meningitis. The transplant was performed by one of the defendant surgeons. The donor had been treated intermittently at the non-party hospital and during his final admission to the hospital a lumbar puncture revealed no bacteria in the spinal fluid, despite symptoms that appeared to be bacterial meningitis. When the patient died, the parents requested that his organs be donated. One of the doctors accepted the left kidney of the donor for the recipient patient. Misdiagnosis was in play.

The surgery was performed and considered to be a success. Before the transplant the recipient plaintiff had been in the final stages of kidney failure and attended dialysis three times a week.

In May, an autopsy of the donor’s brain was performed and it revealed that he had died of cancer. The recipient plaintiff was notified that he had been exposed to cancer through the donated kidney and his doctor recommended that he have the kidney removed.

The recipient had the kidney removed and PET scans were performed and he showed no signs of cancer. The recipient plaintiff is currently still waiting for an organ donor.

Court Discussion and Decision
This instant action was brought before the court under tragic circumstances. It is noted that the parents of the donor willingly waived the HTPAA restrictions to provide their son’s medical records in order to help save the recipient’s life.

The court finds that all parties involved in this case acted responsibly when it came to notifying the plaintiff as soon as it was known that the donor had cancer.

The court does not find that the defendants deviated from proper and standard medical care. It was not possible to foresee that the donor could have had cancer. For this reason, the court is dismissing the complaint.
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The Long Island plaintiff is appealing an order that was made in the Supreme Court of Orange County that granted the defendants’ motion for summary judgment to dismiss the complaint.

Case Background
The plaintiff alleges that the defendant committed dental malpractice by cutting out tooth number 21 from her mouth and performing negligent bridge work. She further alleges that when she complained about pain, the defendant realized that he had committed malpractice and rather than disclose it he tried to conceal it by stating that the tooth just needed to be bonded and he performed the bonding. This occurred in November of 2003.

In January of 2004, the first defendant referred the plaintiff to another dentist who is the second defendant in this case. The plaintiff alleges that the second defendant recognized that the first defendant had committed malpractice, but did not disclose it and told her to go back to the first defendant and talk to him.

The plaintiff started this action five years later in 2009 against both of the defendants. She alleged fraud against each of the defendants and the issue was joined. The defendants moved for summary judgment to dismiss the complaint as being time barred and that the alleged fraud did not result in any damages. The Manhattan defendants further argued that the alleged fraud was the same as the alleged malpractice case.

In opposition to the motion for summary judgment the plaintiff offered her affidavit that states that as a result of the concealment she did not learn about the damage to her tooth until she went to another dentist in February of 2008.

The Supreme Court granted the motion for summary judgment and dismissed the complaint against the defendants. It is this judgment that is being appealed.

Court Discussion and Decision
When a doctor tries to conceal their own malpractice by making a material and knowing misrepresentation to the patient, the patient may seek separate causes of action to recover damages for both malpractice and fraud as long as the damages that were caused by the fraud are distinct from the damages sustained as a result of malpractice.

In this case, the plaintiff did not allege that she suffered from an injury as a result of the fraud that was separate from the injury that she received as a result of the medical malpractice. For this reason, the Supreme Court was correct in dismissing the cause of action alleging fraud against the first defendant.

All of the allegations against the second defendant are found to be without merit.

However, in regard to the malpractice allegation against the first defendant, the plaintiff has raised triable issues of fact in regard to the fact that she was unable to note the damage to her tooth until she saw another dentist at a later point in time. This would lift the statute of limitations on the case and therefore the motion for summary judgment should not have been granted.
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The defendants have moved for an order to amend the caption that recently appointed the plaintiff as the administrator of the estate and upon the amendment to have the complaint against them dismissed.

Case Facts
The Westchester plaintiff both individually and as the administrator of the estate of the deceased, started this action against the defendants to recover damages for medical malpractice and wrongful death. The plaintiff alleges that the care given to his mother was negligent up until the time that she passed away.

The plaintiff alleges that the defendant hospital failed to diagnose the decedent with lung cancer, and this lack of diagnosis resulted in her death on the third of September, 2008.
The plaintiff started this action in December of 2009. At the time the plaintiff brought forth the action he had not been issued the letters of administration naming him as executor and granting him the right to bring suit on behalf of the estate. For this reason, he nominated himself as the proposed administrator as he was the next of kin and the only child of the decedent.

Case Discussion
The Suffolk defendants have moved to have the complaints against them dismissed on the ground that it is barred by the statute of limitations and/or that the complaint fails to state a cause of action. To support the motion the defendants argue that the plaintiff failed to serve a timely notice of claim. They further state that the alleged failure of diagnosing the decedent’s lung cancer occurred more than 90 days before the plaintiff’s notice of claim and for this reason the notice of claim is untimely.

The defendants further argue that the plaintiff lacks the capacity to commence with a wrongful death claim because he was not designated as the legal representative for the decedent’s estate at the time the action was started.

In opposition of this, the plaintiff states that he has now received the letters of administration for the estate and that none of the defendants were prejudiced by him starting the action before he was named as the estate’s administrator. The plaintiff further argues that he is the only heir of the decedent and therefore was the only person that could have started the claim.

Court Decision
Based on the information that has been provided to the court the complaint against the defendant hospital corporation is dismissed entirely. The wrongful death claim against one of the doctor defendants is dismissed as well. Additionally, the medical malpractice claim against this particular doctor is dismissed as time barred.

The wrongful death claim made against the other hospital defendant is dismissed in its entirety as well as any of the medical malpractice claims that occurred before the third of March, 2006. These complaints are deemed to be time barred.
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This is an action to recover legal fees. The plaintiff has moved to dismiss the counter claims made in the verified amended answer of the defendant. The defendant has filed a separate motion for leave to serve a second amended answer and to renew his prior motion to dismiss the complaint.

There are several counterclaims made by the defendant in his proposed answer including a counter claim for fraud, legal malpractice, and breach of fiduciary duty. He also added two additional counter claims in his amended answer, breach of the plain language requirement and breach of judiciary law section 427.

Case Facts
The defendant contends that he has resided in the state of Florida since 2000 and his son lives with his mother in New York. From April of 2002 through February of 2006 a partner of the plaintiff performed legal services for the defendant pursuant to a representation agreement in connection with matters that related to the defendants son and mother.

When the representation period ended the Queens defendant refused to pay the balance of the plaintiff’s legal fees. The defendant submitted a fee dispute to the fee dispute resolution program. A hearing was held and it was determined that the plaintiff was entitled to a portion of the claimed legal fees. As the defendant had already made payments to the plaintiff the plaintiff was ordered to pay the defendant $4,943.09 as an arbitration award.

The plaintiff was unsatisfied with the arbitration award and started this instant action for a trial de novo. The defendant moved to dismiss the complaint on the grounds of arbitration and award, collateral estoppel and res judicata pursuant to CPLR section 3211. The defendant’s motion was denied in its entirety and the plaintiff was found to be within his rights to pursue a trail de novo.

The defendant has now moved to amend his answers again and also to renew his previous motion to have the complaints against him dismissed.

Court Decision
The court has reviewed all of the documents as presented in the case and will grant the defendant’s motion to leave to serve the plaintiff with the second amended answer in regard to his first, second and third counterclaims. The fourth and fifth counterclaims are denied.
The plaintiff’s motion to dismiss the defendant’s counterclaims in the amended complaint in regard to the second and third counterclaims that are made within the amended answer is granted.

The defendant is ordered to serve a copy of this order with a notice of entry to all of the parties involve within twenty days of the orders being entered.
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Defendants New York City Health and Hospitals Corporation (HHC) and Dr. PN (collectively defendants) move for summary judgment, dismissing plaintiff’s complaint insofar as asserted against them.

In this medical malpractice action, plaintiff alleges that defendants deviated from accepted standards of medical care while he was being treated in the hospital for severe injuries he sustained in an automobile accident. The Manhattan plaintiff alleges, among other things, that defends its improperly and negligently positioned and restrained his wrists, failed to monitor the effects of the restraints, negligently failed to perform physical therapy on him, and negligently caused his arms to become paralyzed and non-functional.

On December 29, 2004, plaintiff, then age 62, was driving his vehicle when it struck trees, a fence and landed in a courtyard, ejecting him from the driver’s side window. Plaintiff sustained various injuries, including a hemorrhage of the head, a crushed left leg from his foot to hip, and multiple lacerations and abrasions. EMS brought plaintiff to Kings County Hospital emergency room, where plaintiff was described as alert, combative, and intoxicated. Plaintiff was intubated and x-rays and abdominal/pelvic ct-scans were performed. Plaintiff sustained fractures of the pelvis, left femur, and left tibia/fibula, and had internal bleeding.

According to Dr. PN, plaintiff required significant treatment to save his life. He was unstable in the emergency room and Dr. PN did not know if he was going to survive. A CAT scan was taken to look at plaintiff’s head injury and to identify his severe pelvic fracture, but he become progressively more unstable and hemorrhaging. He underwent multiple massive transfusions, and was then transferred to the intensive care unit, where he was still unstable. Dr. PN testified that over the next 24 to 48 hours, she and other medical personnel were able to stabilize plaintiff, but he remained in extremely critical condition.

Dr. PN made the first order for wrist restraints on December 30, 2004, at 5:30 A.M. Orders for wrist restraints were written daily, from December 30, 2004 until February 6, 2005, while plaintiff was still in the intensive care unit. With respect to the need to restrain plaintiff in the critical care unit, Dr. PN testified that it was to protect himself as plaintiff was very dependent on a ventilator, required an endotracheal tube for his ventilator and multiple IV lines for his support, that he repeatedly reached and tried to pull out his lines.

Defendants also state that the flow sheets document that the nursing staff at the hospital checked wrist restraints for skin integrity, circulation and range of motion on regular intervals while plaintiff was restrained.

On February 11, 2005, physical therapy in Staten Island documented 15 to 20 degree extension/flexion in the left elbow and 15 to 30 degree flexion/extension in the right elbow. On February 14, 2005, plaintiff was evaluated for physical therapy. Bedside therapy was recommended three to four times per week to prevent further contractures and muscle weakness bilaterally in the upper and lower extremities and began at that time.

On April 5, 2005, one week prior to discharge, therapy documented a 15 degree lag in extension/20 degrees flexion of the left elbow and a 10 degree lag in extension/forty degree flexion in the right elbow. Despite two months of intensive therapy, after the wrist restraints were removed, plaintiff’s upper extremity contractures persisted.

On July 12, 2005, bilateral elbow x-rays performed at the Kings County Hospital outpatient clinic revealed a diagnosis of heterotopic ossification.

On August 19, 2005, surgery for the right elbow contracture release and excision of heterotopic calcification was performed at Kings County Hospital. On October 28, 2005, surgery for left elbow contracture release and excision of heterotopic calcification was performed.

Plaintiff commenced the instant action for medical malpractice and lack of informed consent in July, 2006.

In support of their motion, defendants argue that they are entitled to summary judgment dismissing the complaint based upon the affidavits of their expert physicians, which demonstrate that there was no departure from accepted standards of practice and that defendants did not cause plaintiff’s injuries.

A doctor (Dr. A) witness for the defendant testified that wrist restraints are routinely used for intensive unit patients who are often at increased risk of injuring themselves by pulling out therapies such as IV lines, endotracheal tubes, central lines and chest tubes. He also stated that wrist restraints allow for some range of motion and enable a degree of flexion and extension of the wrists and elbows and pronation and supination of the arms, as evidenced by the fact that on January 30, 2005 plaintiff was seen holding the dislodged chest tube tubing with his restrained left hand. The doctor said that there was no evidence that plaintiff’s wrist restraints ever caused circulatory impairment, were improperly positioned, or that plaintiff developed any pressure sores in the wrist area; and that the wrists restraints were a necessary and vital part of plaintiff’s management.

Like Dr. A, Dr. B testified that there is sufficient documentation that the nursing staff continuously monitored the wrist restraints according to hospital protocol; that there was no evidence that plaintiff’s wrist restraints ever caused circulatory impairment, were improperly positioned, or that plaintiff developed any pressure sores in the wrist area; and that the wrists restraints were a necessary and vital part of plaintiff’s management.

Dr. B further stated that despite intense physical therapy received after the removal of wrist restraints, the elbow contractures persisted.

Dr. B explained as well that heterotopic ossification is a medical condition which involves the gradual formation of bone in the soft tissue around major joints; that the normal soft tissue of the joint turns into bone; that it is a rare condition which is most frequently seen with musculoskeletal trauma, spinal cord injury, or central nervous system injury; that there is no medical evidence which suggests that heterotopic ossification has any relation to immobilization or restraint; and that physical therapy is not usually an effective treatment of heterotopic ossification and was not effective on plaintiff.

Further, Dr. B noted that plaintiff was diagnosed with a C1-C2 subluxation at the time of admission but no surgery could be performed because of plaintiff’s general medical condition, and that stabilization surgery was performed on March 28, 2005. He stated that the relationship between spinal injury and heterotopic ossification is well established, and that as a result of plaintiff’s spinal cord injury, he was diagnosed with spastic quadraparesis in the hospital ambulatory care clinic on June 16, 2006.

As such, Dr. B opined, with a reasonable degree of medical certainty, that plaintiff developed heterotopic ossification (HO) as a result of musculoskeletal trauma and spinal cord injury sustained during the automobile accident; that heterotopic ossification was not and could not be caused by wrists restraints.

On the other hand, the expert presented by plaintiff opined that it is widely accepted that gentle and active passive range of motion substantially limits the risk of HO and that the failure to position and move plaintiff’s arms for several hours during the day was a substantial factor in the development of his HO, to the degree and nature that it could cause such severe upper extremity dysfunction.

The expert also stated that even with HO, plaintiff’s severe bilateral elbow contractures were avoidable had his arms not been improperly restrained. He asserts that contractures occur when tendons/muscles harden and become `fixed’ or less elastic as a result of disuse; that in plaintiff’s case, the contractures were a separate and distinct injury from HO; and that the failure to reposition plaintiff’s arms for several hours a day on the days he was restrained was a substantial factor in causing his contractures and loss of range of motion in both arms.
According to the Court, the requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted standards of medical practice, and (2) evidence that such a departure was a proximate cause of the plaintiffs injury. On a motion for summary judgment in a medical malpractice action, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice, or that the plaintiff was not injured thereby. Defendant must make this showing through medical records and competent expert affidavits. Once the defendant has made a prima facie showing, the burden shifts to the plaintiff to rise a triable issue of fact.

In this case, the Court held that defendants have made a prima facie showing entitling them to summary judgment with respect to their claim that the wrist restraints used on plaintiff did not cause plaintiff to contract heterotopic ossification. In this regard, both of defendants’ experts testified, and the record reveals, that the use of the wrist restraints on plaintiff was necessary because he was frequently described as restless and was considered at risk for self-injury. In addition, noting that heterotopic ossification is a rare condition which is most frequently seen with musculoskeletal trauma, spinal cord injury or central nervous system injury; that plaintiff had sustained spinal cord injury as a result of his accident; and that the relationship between spinal cord injury and heterotopic ossification was well established, Dr. B opined that plaintiff developed heterotopic ossification as a result of musculosekletal trauma and spinal cord injury sustained during the automobile accident, and that it was not and could not be caused by wrist restraints.

Defendants, however, have failed to make a prima facie showing that the wrist restraints did not cause plaintiff’s elbow contractures. In this regard, Dr. B opined that plaintiff’s elbow contractures were not caused by stiffness/tightness associated with atrophy from lack of use, asserting that there was no evidence that the restraints caused circularory impairment, were improperly positioned, or that plaintiff developed pressure sores in the upper extremities.
Thus, defendants’ own papers raise an issue of fact as to whether the proper protocols with respect to wrist restraints were consistently followed, and if not, whether the failure to do so was a proximate cause of plaintiff’s contractures.

In any event, plaintiff has raised a question of fact as to whether his heterotopic ossification and contractures resulted from defendants’ negligent use of wrist restraints on him, which precludes the court from granting defendants’ motion for summary judgment. With respect to plaintiff’s heterotopic ossification, plaintiff’s expert asserted that during some of the days plaintiff was restrained, he was not properly monitored according to hospital protocol. Plaintiff’s expert also opined that they were avoidable had plaintiff’s arms not been improperly restrained.

As such, defendants’ argument that plaintiff did not rebut their showing that there was sufficient documentation that plaintiff was continuously monitored, and that there is no evidence which suggests that heterotopic ossification has any relation to immobilization or restraint, is without merit.
Further, while defendants argue that plaintiff’s expert did not rebut their expert’s contention that heterotopic ossification is a rare condition and most frequently seen with, among other things, spinal cord injury, plaintiff’s expert raised an issue of fact as to whether the failure to properly monitor the wrist restraints caused plaintiff’s elbow contractures and heterotopic ossification. In addition, contrary to defendants’ claims, plaintiff’s expert specified how the restraint protocol was not followed.
That branch of defendants’ motion for summary judgment as to plaintiff’s cause of action for lack of informed consent was granted by the Court. Defendants have made a prima facie showing, through their expert affirmations, that a reasonably prudent person would have undergone all of the procedures plaintiff underwent if informed of the risks and benefits of the procedures. Plaintiff has failed to address this cause of action in his opposition.
Finally, in light of the factual issues raised, the court declined to search the record and grant plaintiff partial summary judgment.

In sum, that branch of defendants’ motion for summary judgment as to plaintiff’s cause of action for lack of informed consent is granted, and the remainder of defendants’ motion is denied.
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