Assenza v. Horowitz

OPINION OF THE COURT

The motion of Arthur Buonaspina, M.D. for summary judgment pursuant to Civil Practice Law and Rules § 3212^[1] is denied. The cross motion for summary judgment made by Mark Horowitz, M.D. was supported by his own “expert” affidavit without adding impartial expert opinion. A “self-serving” affidavit requires scrutiny to assess its weight, but it is admissible. However, Dr. Horowitz failed to provide supporting proof to his cross motion^[2] and it is denied. Cross motion by Amanda Assenza and her father, David Assenza, to deny Dr. Buonaspina’s motion is granted. The cross motion by Amanda and David Assenza pursuant to CPLR 8303-^[3] seeking sanctions, costs, disbursements and attorney fees is denied.

Facts

On October 11, 2005, Amanda was admitted to Staten Island University Hospital (SIUH). That day, Amanda had ureter and bladder surgery. The night following her surgery, Amanda’s bladder was catheterized, bloody urine was drained, and the catheter was removed. Amanda had difficulty urinating through the next day, evening and night and a nurse telephoned Dr. Horowitz who again gave an order to catheterize her. Dr. Horowitz testified that he spoke on the telephone to Debra Assenza. Dr. Horowitz asserts that Amanda’s mother gave consent for the catheterization, and that she “did not express hesitancy” regarding the plan.^[4] Debra Assenza later said doing the procedure was “OK,”^[5] and affirmed she never refused the procedure. There is no record Debra Assenza signed a formal consent for this catheterization.

Discussion

A motion for summary judgment requires “the cause of action or defense shall be established sufficiently to warrant the court . . . directing judgment in favor of any party.”^[10] The proponent has the burden of tendering sufficient evidence to preclude material issues of fact.^[11] Once the moving party has made a showing of sufficient evidence, the burden shifts to the opposing party to put forth admissible evidence to establish a triable issue for the factfinder.^[12] In medical malpractice, the party opposing must submit opposing proof.^[13]

Dr. Horowitz has submitted his own affidavit, offered explicitly as an “expert opinion,”^[14] but does not provide an additional opinion from an independent, impartial expert. For authority, Dr. Horowitz relies upon a judicial decision in which a lay plaintiff offered only her own affidavit stating that unnamed doctors said part of her treatment was unnecessary.^[15] In that case, the physician defendant did not offer an independent expert’s opinion. The court said “expert opinion evidence from a party defendant which bears a strong factual relationship to the alleged injury requires an expert response from the plaintiff.”^[16]

Dr. Horowitz also relies upon Toomey v Adirondack Surgical Assoc., wherein a defendant physician’s affidavit as an expert opinion was accepted when it was “detailed, specific and factual in nature and does not assert in simple conclusory form that the physician acted within the accepted standards of medical care.”^[17] Toomey, relied upon a chain of preceding cases in which a defendant physician’s affidavit was accepted by the court with “sufficient evidence to eliminate any material issues of fact from the case.”^[18] These cases ultimately rely upon the Court of Appeals when it said “bare conclusory assertions echoed by all three defendants that they did not deviate from good and accepted medical practices, with no factual relationship to the alleged injury, do not establish that the cause of action has no merit.”^[19] In Toomey, its additional antecedents,^[20] and its descendants,^[21] the Appellate Division, Third Department jumps from requiring factual assertions related to an alleged injury, and lands upon an acceptance of a self-serving statement as a valid expert opinion.

Here, Dr. Horowitz’s self-serving affidavit is set against plaintiffs’ expert opinion offered as being impartial. Ideally, an impartial expert opinion should be countered by an opposing disinterested expert opinion. Expert opinions should assist the court and its factfinders, and not be mere partisan exhortations. The Court of Appeals has held that in medical malpractice, “expert testimony of a medical nature will be required to assist the jury in understanding.”^[29] The Appellate Division, Second Department requires opposing expert opinions in suits founded upon medical malpractice,^[30] and accepted a defendant doctor’s

Impartiality should be the touchstone of an expert opinion. To assume that an expert witness would be partial would do “gross injustice” to the expert and the expert’s integrity.^[34] A court may appoint an impartial expert to assist its determinations.^[35] At least one court has disregarded expert advice when it appeared to be biased.^[36] Despite a line of cases that accept self-serving “expert” opinions, the Appellate Division, Third Department has also extolled the impartial expert. “The opinions of the impartial specialist . . . provide substantial evidence to support [a] decision.”^[37] The Appellate Division, Second Department affirmed the underlying principle when it said, “self-serving statements are insufficient to support the expert’s opinion,”^[38] and found that a close relationship between a party and the expert may prevent a fair and impartial hearing.^[39] In medical malpractice the moving party must present something other than “[cjonclusory, self-serving statements with no expert . . . evidence which would tend to establish, prima facie, that they did not depart from the requisite standard of care.”^[40] It has been long held that there is need for expert testimony in actions based on alleged medi

No one may be prevented from being a witness because of interest in, or being a party to an action.^[42] However, not all testimony carries the same weight. In addition to possible monetary interests, avoiding blame may discredit a witness.^[43] “[Pjarty plaintiffs or defendants are always interested witnesses, since they have a motive to shield themselves from blame.”^[44] Potentially self-serving motives, prompt a special charge to the jury.^[45] The court should issue a special charge for evidence provided by an interested party,^[46] and instruct the jury to consider any interest the witness may have in the outcome of the case.^[47] Public policy should require that an expert opinion be impartial and be factually supported.

Dr. Horowitz’s cross motion for summary judgment is unopposed by all other parties. However, Dr. Horowitz’s affidavit must be supported by “other available proof, such as depositions and written admissions.”^[48] “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.”^[49] The Appellate Division, Second Department notes the presence of supporting medical records in some discussions,^[50] while in other instances it has been silent about the presence of supporting medical records.^[51] The absence of supporting evidence is not specifically excused, and supporting an affidavit with the medical record seems to be favored. The Appellate Division, Third Department has generally noted

Dr. Horowitz’s affidavit could have shifted the burden to the plaintiffs upon his cross motion for summary judgment had he submitted supporting evidence sufficient to eliminate material issues of fact. The plaintiffs were required to present an expert opinion in order to sustain this action against Dr. Horowitz, because it is based upon medical malpractice. This burden was not met since plaintiffs’ expert did not oppose Dr. Horowitz’s cross motion for summary judgment. However, in the Appellate Division, Second Department, a proper motion for summary judgment made by a physician must include the physician’s affidavit and must be supported by the medical record, or at the least some other factual support. Dr. Horowitz failed to include “sufficient evidence to eliminate any material issues of fact from the case.”^[57] Dr. Horowitz should have supplied the required medical or other factual record to support his assertions.^[58] Since Dr. Horowitz failed in his motion for summary judgment on procedural grounds, the cross claims are not extinguished, and his lack of impartial expert support is ultimately not even considered.

II. Dr. Buonaspina’s Motion for Summary Judgment

In supporting Dr. Buonaspina’s motion for summary judgment, Robin Altman, M.D. asserts that Dr. Buonaspina did not deviate from accepted standards of medical practice and that Dr. Buonaspina’s alleged acts or omissions were not the

In contrast to Dr. Altman’s opinions, the plaintiffs’ expert’s opinion was that Dr. Buonaspina and Dr. Chang did not render appropriate care when they failed to follow Dr. Horowitz’s orders to catheterize Amanda.^[63] Dr. Altman opined that failure to catheterize Amanda between October 12 and 13, 2005, caused increased urinary bladder pressure resulting in bladder leakage.^[64] These conflicts are for a jury to decide.^[65] “[T]he resolution of issues regarding the credibility of both expert and lay witnesses and the accuracy of their testimony are matters peculiarly within the province of the jury.”^[66]

III. Plaintiffs’ Cross Motion for Sanctions, Costs and Disbursements and Attorney Fees

The plaintiffs allege that Dr. Buonaspina’s motion is frivolous and without merit,^[67] and cross-move for sanctions, motion costs and disbursements, and reasonable attorney fees to be awarded to the plaintiffs by the defendant Dr. Buonaspina. Frivolous conduct is defined as conduct that is “completely without merit”^[68] and “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another.”

Sanctions are within the sound discretion of the court and are reserved for serious transgressions. The court does not find that Dr. Buonaspina engaged in frivolous motion practice. Dr. Buonaspina’s motions were not “commenced, used or continued in bad faith, solely to delay or prolong the resolution of the litigation or to harass or maliciously injure”^[72] and were not “without any reasonable basis in law or fact.”^[73] The plaintiffs’ cross motion for sanctions, costs, disbursements, and attorney fees is denied.

Conclusion

Dr. Horowitz’s cross motion for summary judgment is procedurally defective. There are obvious differences between the facts as stated by the parties, and opposing experts’ opinions. Furthermore, Dr. Buonaspina’s motion is not frivolous.

Accordingly, it is hereby ordered, that the defendant Arthur Buonaspina, M.D.’s motions for summary judgment, for dismissal of cross claims, amending of the caption, severing the action, and dismissing the action against him are denied in their entirety; and it is further ordered, that the defendant Mark Horowitz, M.D.’s motions for summary judgment, for dismissal of cross claims, amending of the caption, severing the action, and dismissing the action against him are denied in their entirety; and it is further ordered, that the cross motion of the plaintiffs Amanda Assenza and David Assenza is granted to the extent that the motion for summary judgment made by Arthur Buonaspina, M.D. is denied; and it is further ordered, that the cross motion of Amanda Assenza and David Assenza is denied to the extent that motion for sanctions, costs and disbursements, and attorneys’ fees is denied.