Motion-Secondary: Yona Unger v. Westchester County Health Care Corporation WESTCHESTER MEDICAL CENTER

On December 23, 2016 a Motion-Secondary was filed involving a dispute between Yona Unger, and Westchester County Health Care Corporation Westchester Medical Center, for Special Proceedings - Other (Leave to serve late notic) in the District Court of Westchester County.

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FILED: WESTCHESTER COUNTY CLERK 06/30/2017 02:37 PM INDEX NO. 69528/2016
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 06/30/2017

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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Matter of the Application of YONA UNGER, Index No.: 69528/2016

Petitioner, AFFIRMATION IN
SUPPORT OF MOTION
-against- TO RENEW AND REARGUE

WESTCHESTER COUNTY HEALTH CARE
CORPORATION, WESTCHESTER MEDICAL
CENTER,

Respondent,

For leave to serve a late notice of claim pursuant to
General Municipal Law § 50-e.
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ALFRED P. VIGORITO, ESQ., an attorney duly admitted to practice law before the

courts of the State of New York, hereby affirms the following to be true pursuant to penalties of

perjury:

1. I am a partner with the law firm VIGORITO, BARKER, PORTER &

PATTERSON, LLP, attorneys for defendants, WESTCHESTER COUNTY HEALTH CARE

CORPORATION and WESTCHESTER MEDICAL CENTER (hereinafter collectively

“WMC”) in the above-captioned matter. As such, I am fully familiar with the facts and

circumstances herein.

2. This affirmation is submitted in support of WMC’s motion for an Order pursuant

to CPLR §§ 2221(d) and (e) granting renewal and reargument of the Court’s June 2, 2017 Decision

and Order, and upon renewal and reargument, vacating said Decision and Order and denying

petitioner’s motion to file a late notice of claim, together with such other, further and different

relief as this Court deems just and proper.

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FACTUAL AND PROCEDURAL HISTORY

3. Petitioner herein alleges that while in Canada, on November 23, 2014, he was

injured when he fell while doing chin ups. Petitioner was sixteen years old at the time. He

presented the following day, on November 24, 2014, to the emergency room at New York

Presbyterian Hospital/Columbia University Medical Center (hereinafter “NYP”) and was

discharged that same day with a diagnosis of a muscle strain. The following day, on November

25, 2014, he was taken to the emergency room at WMC where he was admitted and remained until

December 5, 2014.

4. At WMC, petitioner was diagnosed with a retroperitoneal hematoma and treated

conservatively, with close monitoring, physical therapy and pain management. Thereafter he was

discharged to Helen Hayes Rehabilitation Hospital for acute rehabilitation.

5. On April 22, 2015, petitioner’s mother, on petitioner’s behalf, commenced an

action against NYP and petitioner’s treating physicians, John Babineu, M.D., and Tamar Lubell,

M.D., in New York County, under index number 805162/2015, alleging medical malpractice, lack

of informed consent and loss of services relating to the November 24, 2014 treatment of petitioner.

A copy of the Summons and Complaint is annexed hereto as Exhibit A.

6. Over a year and a half later, on December 23, 2016, petitioner initiated the Petition

to File a Late Notice of Claim against WMC. A copy of the Petition to File a Late Notice of Claim

is annexed hereto as Exhibit B.

7. As part of the petition, petitioner included the expert affirmation of Morton Finkel,

M.D., which opined that while at WMC “the retroperitoneal hemorrhage should have been

removed or evacuated.” A copy of the expert affirmation of Dr. Finkel is annexed hereto as Exhibit

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8. On or about February 2, 2017, WMC opposed the Petition to File a Late Notice of

Claim alleging lack of notice, failure to provide a nexus between infancy and the delay, lack of

reasonable excuse and prejudice. A copy of the Opposition to the Petition to File a Late Notice of

Claim is annexed hereto as Exhibit D.

9. On or about February 16, 2017, petitioner submitted his Reply. A copy of the Reply

is annexed hereto as Exhibit E.

10. On June 1, 2017, the NYP defendants’ moved for summary judgment. In support

of the motion, the NYP defendants provided expert affirmations from Gregory Mazarin M.D., and

Victor Khabie, M.D., which, in part, opined that the treatment at WMC was appropriate and within

the standard of care and that surgery was inappropriate and not indicated. A copy of the expert

affirmations of Dr. Mazarin and Dr. Khabie (including relevant medical articles) in support of

NYP’s motion for summary judgment are annexed hereto as Exhibit F and G, respectively.

11. A complete copy of the WMC medical records are annexed hereto as Exhibit H.

12. On May 18, 2017, petitioner filed a Summons and Complaint in New York County

under index number 805198/2017, against Corrado Paolo Marini, M.D, Dimitriy V. Karev, M.D.,

Micah Burns, M.D., and Westchester Medical Center Advanced Physician Services, P.C., the

treating physicians during the November 25, 2014 admission and their professional corporation.

A copy of the Summons and Complaint is annexed hereto as Exhibit I.

13. On June 2, 2017, the court issued an order granting the Petition to File a Late Notice

of Claim. A copy of the Decision and Order is annexed hereto as Exhibit J.

14. On June 8, 2017, petitioner filed a Summons and Complaint in Westchester County

under index number 58807/2017 against WMC alleging medical malpractice and lack of informed

consent. A copy of the Summons and Complaint is annexed hereto as Exhibit K.

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ARGUMENT

POINT I

RENEWAL AND REARGUEMENT IS WARRANTED IN
LIGHT OF NEW EVIDENCE ESTABLISHING THAT
THERE WAS NO NOTICE OF MALPRACTICE SET FORTH
IN THE WMC MEDICAL RECORDS.

Renewal and reargument are warranted in this case based on new evidence establishing

that there was no notice of medical malpractice set forth in the WMC records, and indeed,

petitioner was properly managed with conservative treatment at WMC, which was within the

standard of care. In addition, rearguement is warranted in light of the Court’s misapprehension of

the law and facts regarding the requisite evidence necessary to establish entitlement to file a late

notice of claim.

A motion for leave to renew “shall be based upon new facts not offered on the prior motion

that would change the prior determination or shall demonstrate there has been a change in the law

that would change the prior determination.” CPLR 2221(e). The requirements for a motion to

renew are flexible, and the Court has discretion to grant renewal even if facts were known to a

party at the time of the original motion. See Tishman Const. Corp. of New York v. City of New

York, 280 A.D.2d 374 (1st Dept. 2001); see also Brooklyn Wielding Corp. v. Chin, 236 A.D.2d

392 (2d Dept. 1997).

In addition, renewal is permissible when the moving party offers an excuse explaining why

the new facts were not initially submitted. See Segall v. Heyer, 161 A.D.2d 471 (1st Dept. 1990)

(“Plaintiff offered a valid excuse, explaining that she mistakenly believed expert testimony was

not required to withstand a motion for summary judgment in a negligence action. . . [T]he court

did not abuse its discretion in granting the motion to renew.”) Renewal is likewise appropriate

where the motion is submitted in direct response to the Court’s holding and concerns observed in

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the prior order. See Whelan v. GTE Sylvania, Inc., 182 A.D.2d 446 (1st Dept. 1992) (renewal

and/or reargument should have been granted; abuse of discretion for court to reject offer of a non-

employee expert affidavit in direct response to court’s concerns).

Pursuant to CPLR §2221(d)(2) a motion for leave to reargue shall be “based upon matters

of fact or law allegedly overlooked or misapprehended by the court in determining the prior

motion, but shall not include any matters of fact not offered on the prior motion.” Moreover,

“[m]otions for reargument are addressed to the sound discretion of the court which decided the

prior motion and may be granted upon a showing that the court overlooked or misapprehended the

facts or law or mistakenly arrived at its earlier decision.” Viola v City of New York, 13 A.D.3d 439,

440 (2d Dept. 2004).

Respondent was reasonably justified in not raising the new evidence of the expert

affirmations of Drs. Mazarin and Khabie in the original opposition papers because they were not

available at that time and because respondent reasonably believed that the medical records, on

their face, did not put respondent on notice of medical malpractice, namely the allegation that

petitioner’s femoral neuropathy was caused by the failure to perform surgery to evacuate the

retroperitoneal hematoma.

In the instant case, in granting the motion to file a Late Notice of Claim, the Court held:

In support of the petition petitioner submitted an affirmation of a
medical expert who, after reviewing the medical records, opines that
the retroperitoneal hemorrhage compressed petitioner’s femoral
nerve causing neuropathy and lumbosacral radiculopathy, and that
“nothing was done to treat or evacuate this retroperitoneal
hemorrhage while he was at Westchester Medical Center.”
(emphasis added).

***

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Here, petitioner demonstrated that respondent had actual knowledge
of the facts constituting the claim. The medical records in
respondent’s possession demonstrate that respondent was aware of
the large retroperitoneal hemorrhage in petitioner’s pelvis.
Petitioner’s expert opines that respondent failed to diagnose or treat
the pressure on petitioner’s femoral nerve caused by the
retroperitoneal hemorrhage. In opposition to the petition respondent
makes no claim that it considered whether the retroperitoneal
hemorrhage was exerting pressure on petitioner’s femoral nerve and
causing the petitioner’s difficulty walking. Accordingly,
respondent’s records provide notice of the facts constituting
petitioner’s claim that respondent’s failure to properly treat the
retroperitoneal hemorrhage caused damage to petitioner’s femoral
nerve. (Rojas v. New York City Health and Hosps. Corp., 127
A.D.3d 870 [2d Dept. 2015]). (emphasis added).

As set forth in the original moving papers, in determining whether to extend the time to

serve a notice of claim, the Court will consider several factors set forth in General Municipal Law

§50-e (5), including whether there was (1) a nexus between petitioner’s infancy and the delay in

service; (2) a reasonable excuse for the delay; (3) actual knowledge on the part of the public

corporation of the essential facts constituting the claim within the 90-day statutory period or within

a reasonable time thereafter; and (4) substantial prejudice to the public corporation due to the delay.

See Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 N.Y.3d 455 (2016).

With respect to the notice element, the Court of Appeals has held that the medical records

must “evince that the medical staff, by its acts or omissions, inflicted an[] injury on plaintiff . . .”

in order for the medical provider to have actual knowledge of the essential facts. Williams v.

Nassau County Medical Center, 6 N.Y.3d 531, 537 (2006).

As clarified in Wally G. v New York City Health & Hosps. Corp., 27 N.Y.3d 672, 677

(2016), the medical records must do more than “suggest” that an injury occurred as a result of

malpractice. In that case, the Court rejected the plaintiff’s expert affirmations suggesting that a

different course of treatment could have produced a different result. Id. at 676-77. In so holding,

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the Court rebuked the reasoning that “so long as medical experts reasonably disagree as to whether,

based on their respective interpretations of the medical records, the medical staff deviated from

the standard of care, a factual question is present and an application for service of late notice must

be granted as a matter of law.” Id. Instead, the Court reiterated its holding in Williams, supra, and

noted that “a medical provider’s mere possession or creation of medical records does not ipso facto

establish that it had ‘actual knowledge of a potential injury where the records do not evince that

the medical staff, by its acts or omissions, inflicted any injury on plaintiff…’” Id. at 677.

Here, while at WMC, petitioner’s retroperitoneal hematoma was treated conservatively. It

is clearly incorrect for petitioner to assert that WMC failed to treat the retroperitoneal hematoma

at all, where the medical records establish that petitioner remained at WMC for ten days during

which time he underwent numerous tests, was closely monitored, received pain management and

physical therapy. See Exhibit H. As is set forth in the expert affirmations of Dr. Mazarin and Dr.

Khabie, this conservative treatment was proper. See Exhibits F and G.

In order to satisfy the standard set forth in Wally G., supra, petitioner must demonstrate

that WMC inflicted petitioner’s femoral neuropathy by its acts or omissions, in this case by failing

to perform surgery to evacuate the retroperitoneal hematoma. While petitioner’s expert’s

affirmation makes this incorrect assertion, this is not supported by the facts set forth in the medical

records. Thus, it fails to satisfy the standard set forth in Wally G. Here, there is nothing in the

medical records that suggests that surgery was indicated. To the contrary, Dr. Marini, the Chief

of Trauma and Critical Care Surgery, noted that petitioner did not need acute surgical intervention.

See Exhibit H.

Indeed, Dr. Khabie, a board certified orthopedic surgeon, opined that “the standard

treatment for retroperitoneal hematoma from the iliopsoas muscle is observation and supportive

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care. Surgery is rarely indicated. Surgery was never done at WMC because it was not indicated.”

Dr. Khabie went on to note that “[p]laintiff was admitted to the Trauma ICU and treated

conservatively, which means invasive measures such as surgery or other invasive procedures were

avoided. The specific treatment plan was for plaintiff to walk as much as he could and to keep the

pain under control with medication.”

Additionally, Dr. Khabie opined that the standard of care for treatment of a retroperitoneal

hematoma, based on his experience and review of medical literature, is

conservative management if an individual with a retroperitoneal
hematoma is hemodynamically stable and a transfusion is not
needed. Further, surgery is not typically done to evacuate an
iliopsoas hematoma. One ensures that a patient is hemodynamically
stable by checking the vital signs and IV fluid is given. If the
hemoglobin and hematocrit drop to such a point that a transfusion is
needed and there seems to be ongoing bleeding, then one may want
to do an embolization or perform surgery to identify site(s) of
continued bleeding and try to stop it. However, in this case, a
transfusion was not needed and while at Westchester Medical
Center, the plaintiff was hemodynamically stable. Both
embolization and open surgery are only options if there is persistent
hemodynamic instability, which is not the case here. Neither open
surgery nor embolization was done because neither was indicated
nor appropriate for this patient.

Dr. Khabie further explained:

The bleeding from an iliopsoas muscle retroperitoneal hematoma is
diffuse. Essentially, it is an oozing type of bleeding. It is not coming
from one site. Rather, the muscle tears and bleeds from many sites,
not just one. It is difficult to stop and difficult to control, including
with embolization. The bleeding typically tamponades meaning that
blood flow stops on its own and the bleeding is confined to that
space. If one does open surgery on a patient with a retroperitoneal
hematoma because the patient is hemodynamically unstable, the
bleeding is no longer confined and, paradoxically, more bleeding
from the iliopsoas muscle can ensue. Thus, if surgery can be
avoided, it should be.

***

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I did a literature search about the management of retroperitoneal
hematomas. There are few articles as the condition is rare. The
consensus is that if a patient is bleeding into the iliopsoas muscle,
but the bleeding is not so extensive as to require transfusion and the
patient is hemodynamically stable, surgery should not be performed.
The literature shows that the standard treatment for retroperitoneal
hematomas from blunt trauma almost never includes surgery. See,
e.g., Annals of Surgery, Management of Traumatic Retroperitoneal
Hematoma; this is from 1990 but is still referred to and often cited
as a primer in the treatment of retroperitoneal hematomas; also see,
e.g. International Journal of Clinical Experience, Management of
Spontaneous and Iatrogenic Retroperitoneal
Haemorretroperitoneal hematomaage: Conservative Management,
Endovascular Intervention or Open Surgery?

These articles are annexed to Dr. Khabie’s expert affirmation in Exhibit G.

Moreover, Dr. Khabie opined with respect to the femoral nerve compression:

It is my opinion with a reasonable degree of medical certainty that
the nerve injury in this case would have happened even if the
retroperitoneal hematoma had been diagnosed in the NYPH ED. The
treatment would have been non-surgical conservative treatment as it
was at WCMC. Nerve injury is the natural consequence of a
retroperitoneal hematoma and could not have been prevented with
conservative treatment and surgical treatment was not the standard
of care in this case.

Likewise, Dr. Mazarin opined:

The standard of care for treatment of a retroperitoneal hematoma
from blunt trauma based on my knowledge of and experience with
retroperitoneal hematomas is conservative management if the
patient is hemodynamically stable and a transfusion is not needed.
Surgery is not typically done to evacuate an iliopsoas hematoma.

Based on the foregoing, petitioner’s expert affirmation that opined that surgery should have

been performed to evacuate the retroperitoneal hematoma is simply incorrect and outside of the

standard of care. The WMC records demonstrate that petitioner was properly treated with

conservative management and that surgery was not indicated. Nothing in the record indicates that

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it was malpractice not to perform surgery, especially in light of the fact that petitioner remained

hemodynamically stable.

Petitioner’s expert affirmation is akin to the expert affirmation in Wally G., which the Court

found was insufficient to establish malpractice was inflicted by the medical staffs’ acts or

omissions. Accordingly the decision granting leave to File a Late Notice of Claim should be

vacated and leave should be denied.

POINT II

THE COURT ERRED IN FINDING THE PETITIONER
NEED NOT PROVIDE A REASONABLE EXCUSE FOR THE
DELAY IN SERVING THE NOTICE OF CLAIM WHERE
THERE WAS NO NOTICE AND WMC WAS PREJUDICED.

The court erred in holding that “petitioner need not provide a reasonable excuse for the

delay in serving the notice of claim since respondent failed to demonstrate that it lacked notice of

the essential facts underlying petitioner’s claim and respondent failed to demonstrate it suffered

prejudice as a result of the delay.” See Exhibit J.

In light of the evidence set forth in Point I, supra, which demonstrates that WMC did not

commit malpractice and malpractice was not reflected in the medical records, petitioner should

have been required to provide a reasonable excuse for his two year delay in filing a motion for

Leave to File a Late Notice of Claim. This is especially true where petitioner was astute enough

to bring an action against the NYP defendants in April of 2015, a year and a half before bringing

this motion. The court’s reliance on Benjamin v. Nassau Health Care Corp., 138 A.D.3d 988 (2d

Dept. 2016), is misplaced as that case is no longer instructive in light of the evidence presented

regarding the absence of notice malpractice.

Moreover, the court’s reliance on Rowe v. Nassau Health Care Corp., 57 A.D.3d 961 (2d

Dept. 2008), is also at odds with the facts of this case. The Rowe court held that “while the absence

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of a reasonable excuse does not compel the denial of leave, when, as here, that absence is coupled

with other factors such as prejudice to the municipality and lack of notice, leave must be denied.”

Here, WMC had established lack of notice and prejudice. Prejudice was established in the

form of an affidavit instructing that Corrado Marini, M.D., Jyoti Sharma, M.D. and Yochoved

Wealcatch, R.N., are no longer employed by the hospital and thus not under their control. As such,

WMC is prejudiced in its ability to investigate and defend against petitioner’s claims. It is also

unlikely that after such an extended period of time these witnesses will have any memory of

petitioner and his treatment. See Arias v. New York City Housing Authority, 40 A.D.3d 298 (1st

Dept. 2007), Thus, as in Rowe, here, leave to file a late notice of claim should have been denied.

WHEREFORE, it is respectfully submitted that the motion to renew and reargue be

granted, the underlying decision be vacated, petitioner’s Motion For Leave to File a Late Notice

of Claim be denied and for such other further and different relief as this Court deems just and

proper.

Dated: June 30, 2017
Valhalla, New York

s/Alfred P. Vigorito, Esq.
Alfred P. Vigorito, Esq.

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Case Info

Judge

Joan B Lefkowitz Track Judge’s New Case

Case No.

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Document Filed Date

June 30, 2017

Case Filing Date

December 23, 2016

County

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