'" .

SUPREME COURT - STATE OF NEW YORK

Present:HON. ARTHUR M. DIAMOND

Justice Supreme Court

-----------------------------------------------------------------------xAURA MENDEZ, as the m/n/g ofMATTHEW MENDEZ, a minor,

TRIAL PART: 16

NASSAU COUNTY

Plaintiffs, INDEX NO: 2880--against-

LONG ISLAND JEWISH MEDICAL CENTER,ISRAEL FRANCO, M.D., andPEDIATRIC UROLOGY ASSOCIATION, P.

MOTION SEQ. NO: 02

SUBMIT DATE: 6-30-

Defendants.------------------------------------------------------------------------ x

The following papers having been read on this motion:

Notice of Motion ............... 1Plaintiffs ' Opposition .......... 2Defendants ' Opposition ...... 3Replies ................................... 4 & 5

Motion by defendants, Israel Franco , M.D. and Pediatric Urology Associates , P.

pursuant to CPLR 3212 , for an Order dismissing the complaint insofar as asserted against them

is granted.

This action sounds solely in medical malpractice.

As best as can be determined from the papers submitted herein, the facts are as follows:

On July 10 2007, somewhere between 8:30 a.m. and 10:00 a. , plaintiff, Aura Mendez noticed

that her two year old infant son, Matthew Mendez (hereinafter referred to as "Matthew )'s left

testicle was red, swollen and tender. As a result, she contacted the family physicianpediatrician

Dr. Mark Sperber and had Matthew examined later that afternoon at 2:00 p.m. Upon

examination, Dr. Sperber directed that Matthew be rushed to the Emergency Room (ER) at Long

Island Jewish Medical Center ("LIJ"). Dr. Sperber s presumptive diagnosis of Matthew was

testicular torsion" which occurs when the spermatic cord that provides the blood supply to a

Plaintiff does not assert any other causes of action including for example for negligence orgross negligence.

sticle is twisted, cutting off the blood supply and ultimately resulting in the death of the testicle

and the surounding tissues. Dr. Sperber called the ER at LIJ in advance and informed them that

the infant was being sent for this condition.

At around 5:38 p.m. that day, the two year old infant plaintiff, was brought to the ER by

his mother where he was seen by the ER Medical Attending, Dr. Alexander Arroyo ("Dr.

Arroyo ). Upon physical examination, Dr. Aroyo noticed that the infant' s left testicle was

swollen with eryhema (redness or rash) and had a negative cremasteric reflex (i.e. testicle did

not rise upon stroking of the patient's inner thigh) (Arroyo Tr. p. 14). Dr. Arroyo then ordered a

nuclear scan and a urology consult.

At 7:20 p. , the results of the nuclear scan were given by phone to the on-call pediatric

urology attending, defendant, Dr. Israel Franco , M.D. ("Dr. Franco ) and to LIJ's pediatric

urology resident, Dr. Lindsey Fossett. Dr. Fossett performed a physical examination of Mattewand at some point after 7:20 p. , she called Dr. Franco , to discuss the findings of the Nuclear

Scan and her physical exam. It is undisputed that Dr. Fossett is the only person who ever

contacted Dr. Franco from LIJ on July 10 2007.

Dr. Fossett told Dr. Franco that the infant had testicular pain, scrotal eryhema

tenderness, no nausea, and bilateral positive cremasteric reflex. She also advised him that the

nuclear scan showed increased flow to both testicles. She never mentioned to Dr. Franco that the

attending Dr. Aroyo had actually found a negative cremasteric reflex during his examination

nor did she make any mention of the central photopenic area seen in the nuclear scan.

Based upon this information provided by Dr. Fossett, Dr. Franco , over the phone and

without ever seeing the infant plaintiff or speaking with the infant's family, determined that the

infant could not have testicular torsion. As a result, Dr. Franco recommended that Dr. Fossett

order a sonogram to rule out the possibility of an incarcerated hernia and confirm a diagnosis of

epididymitis (the inflammation of the epididymis, the tube that connects the testicle with the vas-

deferens where the sperm matures and is stored). An ultrasound was ordered and the preliminarimaging results were made available at 10:20 p.

The preliminar imaging report was interpreted by LIJ radiology resident

, "

Dr. Duncan.

Sometime after 10:20 p. , Dr. Fossett called Dr. Franco a second time and advised him that the

sonogram showed no flow in either testicle which Dr. Franco, in tur, explained meant that the

test was of no value other than to show that there was a hydrocele (a fluid-filled sack along the

spermatic cord within the scrotum) and increased size of the epididymitis. Dr. Franco admits at

his sworn deposition that he did not ask Dr. Fossett whether there was a central photopenic area

(or bullseye) present on the scan which, he testified, he would want to be aware of, as it wouldhave changed the management of the child as the possibility of a delayed torsion would exist.

Dr. Franco testified that based upon the information given to him by Dr. Fossett, it washis opinion that the child had epididymitis. As a result, he recommended sending the child home

on antibiotics. Matthew was discharged that evening in the care of his parents with a diagnosis of

epididymitis. He was issued a prescription for Keflex, Motrin every 6-8 hours for the

inflammation, plenty of fluids and instructed to follow up with Dr. Franco s practice, defendant

Pediatric Urology Associates, P.C. ("PUA"). His parents were instrcted to bring him back to

the ER if the pain increased. The next day, the hospital' s radiology attending, "Dr. Barlev" re-

interpreted Matthew s sonogram, which, in his opinion, indicated that testicular torsion on the

left must be considered. "Dr. Palmer" ofPUA was called who, in tu, called Matthew s parentsand directed them to bring the child back to LIJ. Dr. Palmer then indicated to the child'

s parentsthat the child needed surgery for the torsion.

On July 11 , 2007 , exploratory surgery was done to rule out left testicular torsion. The

surgery revealed the left testicle was no longer viable, and as a result, the infant plaintiffunderwent a left orchiectomy for left testicular torsion at LIJ by Dr. Palmer without complication

and was discharged the following day.

Plaintiffs commenced this action (Index No. 6118/08) on or about March 24, 2008against LIJ and Alex Arroyo, M.D. Issue was joined by the service of a Verified Answer onbehalf of both defendants on or about April 28 , 2008. Verified Bils of Pariculars as to LIJ andAroyo were served on or about Alex Aroyo M.D. on or about June 12 , 2008. Thereafter, onSeptember 15, 2008, a stipulation of discontinuance with prejudice was obtained for Alex

Arroyo MD. 2 Subsequently, on or about Februar 14 , 2009, a separate action (Index No.2280/09) was commenced against Israel Franco, M.D. and Pediatric Urology Associates, P.Verified Bils of Pariculars as to Israel Franco , M.D. was served on or about April 2 , 2009.

The validity of the stipulation of discontinuance is questioned by this Court infa.

Subsequently, by Stipulation of Consolidation dated May 13 , 2009, the two actions were

consolidated under this Index Number.

Upon the instant motion, defendants Israel Franco MD. and Pediatric Urology

Associates, P.c. seek summar judgment dismissal of plaintiffs complaint.

Preliminarily, it is noted that in their bil of pariculars, plaintiffs allege inter alia that

the negligence of the defendants consisted of the following acts and/or omissions: "

...

negligently

consulting upon and diagnosing and recommending and/or ordering the discharge of the minor

plaintiff from the (LIJ) ER and recommending outpatient antibiotic treatment and misdiagnosing

the minor plaintiff as suffering from epididymitis and discharging the plaintiff from the ED (sic)

with that incorrect diagnosis; in negligently recommending and ordering the discharge (sic) the

plaintiff from the ED (sic) thus allowing the tre condition afflicting the plaintiff, that of atorsion of the left testis, to progress and worsen until such time as the condition became

irreversible and required removal of the left testis the following day; in negligently failng to use

the proper medical, emergency medical and urological consultation, evaluation, diagnosis

judgment and proper means and precautions in treating the plaintiff; in failing to take heed of the

radiology reports in regards to the ultrasound and nuclear medicine scan performed while this

defendant was consulting and rendering care and treatment to the plaintiff; and in failing to

properly adequate (sic), timely, proper and appropriate consult upon and present to the hospital

to examine the plaintiff, review all radiology tests and scans performed of/on the person of the

plaintiff as well as the reports of the radiologists attendant thereto and take heed of the findings

of a two year old with left testicular pain and a reddened and swollen left scrotum and a painflleft testis on palpation/examination and the lack of any history of associated trauma (VerifedBil of Particulars 3).

Notably, there are no allegations or claims made specifically as against the defendant

PUA. That is, although defendant Dr. Israel Franco is alleged to be a "par of (the) group

practice , PUA (Franco Tr. p. 8), plaintiffs fail to allege that PUA is vicariously liable for the

malpractice of its employee under general principles of respondeat superior (Kavanaugh v.

Nussbaum 71 NY2d 535 (1988)). In fact, plaintiffs fail to even claim that Dr. Franco is anemployee of PUA. There is also no claim, either in plaintiffs complaint or their bil ofpariculars , as to negligent hiring or supervision of Dr. Franco (Sandra M v. St. Luke s Roosevelt

Hosp. Ctr. 33 AD3d 875 (2 Dept. 2006)) or that PUA violated any state regulation. In that

regard, defendant PUA' s motion for sumar judgment dismissal of plaintiffs complaint as

against it is granted.

Turning to Dr. Franco s motion, it is noted at the outset that the requisite elements of

proof in a medical malpractice case are (1) a deviation or deparure from accepted practice and

(2) evidence that such deparure was a proximate cause of injur or damage (Ramsay v. Good

Samaritan Hosp. 24 AD3d 645 646 (2nd Dept. 2005); see also, Thomson v. Orner 36 AD3d 791

Dept. 2007); DiMitri v. Mansouri 302 AD2d 420 (2 Dept. 2003); Holbrook v. United

Hospital Medical Center 248 AD2d 358 , 359 (2 Dept. 1998)).

In a medical malpractice action, the pary moving for summar judgment must make a

prima facie showing of entitlement to judgment as a matter of law by showing the absence of a

triable issue of fact as to whether defendant physician (and/or hospital) were negligent" (Taylor

v. Nyack Hospital 18 AD3d 537 (2 Dept. 2005); see also Alvarez v. Prospect Hosp. 68 NY2d

320 (1986)). Thus, a moving defendant doctor or hospital has "the initial burden of establishing

the absence of any deparure from good and accepted medical malpractice or that the plaintiff

was injured thereby (Chance v. Felder 33 AD3d 645 (2 Dept. 2006) quoting Willams

Sahay, 12 AD3d 366 , 368 (2 Dept. 2004)); Johnson v. Queens-Long Is. Med. Group, P. , 23

AD3d 525 , 526 (2 Dept. 2005)).

Medical malpractice liability may be based upon: (1) a breach of the stadard of care; (2)

lack of consent; (3) breach of contract; or (4) fraud. Most plainly, in this case, defendants

liabilty is predicated upon a breach of the standard of care which involves the following thee

component duties: the duty to possess the requisite knowledge and skill such as is possessed by

the average member of the medical profession; a duty to exercise ordinar and reasonable care in

the application of such professional knowledge and skil; and the duty to use his or her best

judgment in the application of this knowledge and skill (Littlejohn v. State 87 AD2d 951 (3

Dept. 1982); Halev. State 53 AD2d 1025 (4 Dept. 1976)).

The elements of a malpractice action are often litigated on the basis of affdavits

presented on a motion for summar judgment. To obtain summar judgment, the doctor must

make a prima facie showing that there are no material issues of fact and that the plaintiffs cause

of action has no merit as a matter of law (Alvarez v. Prospect Hosp. supra; Winegrad v. New

York University Medical Center 64 NY2d 851 (1985)). In opposition, the plaintiff must submit

evidentiar facts or materials that rebut the prima facie showing that the physician was not

negligent in treating the patient, so as to demonstrate the existence of a triable issue . of fact

(Alvarez v. Prospect Hosp. supra; Baez v. Lockridge 259 AD2d 573 (2 Dept. 1999); Juba v.

Bachman 255 AD2d 492 (2 Dept. 1998)). General allegations of malpractice that are merely

conclusory in nature and not supported by competent evidence tending to establish the essential

elements of the claim are insufficient to defeat the motion (Alvarez v. Prospect Hosp. supra;

Holbrook v. United Hasp. Medical Center 248 AD2d 358 (2 Dept. 1998)). Instead, the plaintiff

is required to present some statement of expert medical opinion to demonstrate the viability of a

theory of liability (Alvarez v. Prospect Hosp. supra; Straton v. Orange County Dept. of Social

Services 217 AD2d 576 (2 Dept. 1995)). Summar judgment may accordingly be rendered for

the defendant in a malpractice action where the defendant provides an expert opinion bearng a

strong factual relationship to the alleged injur, which affrms that the specific treatment given

to the plaintiff conformed to good and accepted medical practice, and the plaintiff fails to

provide an expert medical opinion in the papers filed in opposition (Wind v. Cacho 111 AD2d

808 (2 Dept. 1985)). However, sumar judgment may not be granted to the defendants where

the plaintiffs have filed verified pleadings describing certain injures purportedly caused by the

negligence of the defendant doctors, and in response, the doctors have only provided conclusory

allegations that they did not deviate from good and accepted medical practice, without

describing any factual relationship between this conclusion and the alleged injur (Winegrad v.

New York University Medical Center supra). Moreover, sumar judgment may not properly be

granted dismissing the plaintiffs complaint, where the plaintiff submits a physician s affdavit

raising questions of fact as to whether the defendants ' treatment of the plaintiff had been in

accordance with acceptable medical standards in the community (Walker v. State 111 AD2d 164

Dept. 1985)).

In support of the motion, the moving defendants submit inter alia the expert affirmation

of Dr. Terr W. Hensle, M. , Board Certified in Urology and the Director of Pediatric Urology

at Children s Hospital of New York-Presbyterian Hospital; and the defendant, Israel Franco

own affidavit. Based upon the papers submitted by the moving defendants in support of their

motion, this Court finds that the defendants established prima facie through the affrmations of

their experts , that they did not depar from good and accepted medical practice in their treatment

of the injured plaintiff (Sheenan-Conrades v. Winifed Masterson Burke Rehabiltation Hosp.

51 AD3d 769, 770 (2 Dept. 2008); Rebozo v. Wilen 41 AD3d 457, 458 (2 Dept. 2007);

Willams v. Sahay, 12 AD3d 366 , 368 (2 Dept. 2004)).

Specifically, in his affirmation, Dr. Hensle states that "(i)t is (his) opinion to a reasonable

degree of medical certainty, that there is no merit to the plaintiffs claims that Dr. Franco

depared from standard pediatric urological practice in his diagnosis and recommended treatment

of Matthew Mendez on July 1 0 , 2007 or in determining it was not necessar for the infant to be

seen by an attending pediatric urologist that evening (Hensle Aff, ~4). Dr. Hensle maintains that

by the time Matthew Mendez reached the LIJ Emergency Room on July 10 2007 , his left testicle

was no longer viable. Dr. Hensle explains that the viability of a tortioned testicle wil be lost

blood flow is not restored within 6 hours and that by the time Matthew was brought to the ER at

LIJ, i.e. , between 7 and and 9 hours had passed from the time his mother first notice the

testicle was red and swollen. The damage, according to Dr. Hensle , was already done such that it

would have made no difference if the surgery had been done on the evening of July 10, 2007

instead of July 11 2007. Therefore , there is nothing Dr. Franco could have done on the evening

of July 10 , 2007 to salvage Matthew Mendez s left testicle. The central photopenic area in the

nuclear scan, also known as a halo sign, is evidence that the torsion was actually a missed torsion

and thus the testicle could no longer be salvaged (Id. at ~11).

Dr. Hensle furher maintains in his expert opinion that based on the information made

available to Dr. Franco on July 10 , 2007 , Dr. Franco could not have diagnosed Matthew Mendez

with testicular torsion. Dr. Hensle explains that on July 10 2007, Dr. Fossett told Dr. Franco that

the infant had testicular pain, scrotal eryhema, bilateral positive cremasteric reflexes and that

the nuclear scan showed increased flow to both testicles. Dr. Fossett never told Dr. Franco that a

central photopenic area is seen in the nuclear scan. Symptoms of testicular torsion, explains Dr.

Hensle, include one-sided testicular pain, swellng, testicular redness, nausea, vomiting,

abdominal pain and fever. Testicular torsion presents with a negative cremasteric reflex up to 90

percent of the time and a positive cremasteric reflex is inconsistent with testicular torsion.

Further, according to Dr. Hensle, a nuclear medicine scan used to assess blood flow within the

testicles and damage caused by injur, can also be used to distinguish epididymitis from

testicular torsion. Dr. Hensle explains that in a nuclear scan, a testicular torsion is seen as the

absence or decrease of blood supply or flow since the blood supply is being cut off by the

tWisted testicle. Epididymits, however, is seen as an increase in the blood supply or flow

because it is an inflammatory process. Dr. Hensle explains that a torsion would only appear as an

inflamatory process or a photopenic area on a nuclear scan if it were a "missed torsion

meaning an torsion that occurred over 24 hours earlier and the testicle had not been salvageable

for some time (Hensle AjJ, p. 6, ~~1l-13). Dr. Hensle therefore opines that the findings

communicated to Dr. Franco by Dr. Fossett were inconsistent with testicular torsion and that Dr.

Franco was correct in recommending that Dr. Fossett order a sonogram to rule out the possibility

of an incarcerated herna and confirm a diagnosis of epididymitis (Id. at ~13). Dr. Hensle

concludes that there was no departure on Dr. Franco s par in the diagnosis he reached, therecommendations he made, or in his determination that it was unnecessar for an attending

pediatric urologist to examine the infant that evening. It is Dr. Hensle s expert opinion to a

reasonable degree of medical certainty that Dr. Franco did not deviate from standard pediatric

urological practice on the evening of July 10, 2007 in his care of Matthew Mendez (Id. at ~~14-

15).

In his own affidavit, defendant Dr. Franco explains the different symptoms, conditions

and tests. Ultimately, he states that "(m)y diagnosis of Matthew Mendez on July 10, 2007 was

based on the only information provided to me regarding Matthew s condition on that day. My

diagnosis was proper and the only diagnosis that could have been made when taking into account

the physical examination findings and interpretations of the radiological studies that were

relayed to me (Franco AjJ, ~13).

This Cour finds that the foregoing affidavits, which address the patient' s allegations , are

sufficient prima facie to characterize Dr. Franco s actions as within good and accepted medical

practice in the treatment of Matthew Mendez (Smith-Johnson v. Gabbur 65 AD3d 1122 (2

Dept. 2009); Tuorto v. Jadali 62 AD3d 784 (2 Dept. 2009)).

In addition to the plaintiffs, defendant, LIJ also opposes Franco and PUA' s instantmotion for summar judgment. In fact

, "

for the sake of judicial economy, the Plaintiffincorporates into (their opposition) all exhibits that have been affxed to the papers of themoving pary herein in addition to the exhibits that have been affixed to the papers submitted by

defendant (LIJ) in opposition to the underlying motion for summar judgment" (Plaintif' AjJ

In Opp. ~1). Plaintiffs also submit inter alia the redacted affirmation of an expert urologist as

well as the affirmation of the family pediatrician, Dr. Mark Sperber, M.

11.

Plaintiff s expert states in hislher affirmation as follows:

It is my opinion within a reasonable degree of medical certainty, that the carerendered by (Dr. Franco) represented a deviation and deparure from the good andaccepted practice of urology and was the proximate cause of the plaintiffsdischarge from the (LlJ) ER with a diagnosis of epididymits when he should havebeen admitted to the hospital and undergone surgical exploration for a presumedtorsion of the left testicle.

It is my opinion within a reasonable degree of medical certainty, that Dr. Francofailure to ascertain the findings of all aspects of the physical examinations

performed by Drs. Aroyo and Fossett, including whether both physicalexaminations revealed the presence or absence of a cremasteric reflex, was adepare form the good and accepted practice of urology.

It is my opinion within a reasonable degree of medical certainty, that Dr. Francofailure to inquire and ascertain the findings, as well as the aspects of the results ofthe nuclear scan and the ultrasound examination was a deparure from the goodand accepted practice of urology.

It is my opinion within a reasonable degree of medical certinty, that Dr. Francofailure to inquire and ascertain the findings, given his testimony as to the customand practice to inquire as to all relevant findings and test results relative to aparicular patient, and by his own testimony he was not in possession of all testresults and findings, represent a deparure from the good and accepted practice ofurology.

***

10. It is my opinion within a reasonable degree of medical certainty, that while Dr.Franco s opinion is that the central photopenic area represented a non viabletestis, the interpretations of the radiologists revealed that the central photopenicwas not present on all images and this finding may represent a late or delayedtorsion.

It is my opinion within a reasonable degree of medical certainty, that Dr. Francofailure to inquire and ascertain the full interpretations of the findings, as well asall aspects of the results the nuclear scans , specifically that there was the presenceof a central photopenic area "in the left hemiscrotal region on early blood poolimages , but it is not demonstrated on the late images and although this is atyicalleft testicular torsion cannot be excluded" and the results of the ultrasoundexamination, specifically "markedly abnormal findings on the left side, testiculartorsion on the left must be considered" and instead discharging the child with adiagnosis of epididymitis represents a deparure from the good and acceptedpractice of urology.

12. It is my opinion within a reasonable degree of medical certainty, that there is noway for Dr. Franco to state that the testis was non-viable when the child firstpresented to the (LIJ) Emergency Deparment.

***

Plaintiffs ' pediatrician , Dr. Mark Sperber, states in his affirmation, in pertinent par, as

follows:

***

On (July 10, 2007) I examined Matthew and found him to have findingsconsistent with a left testicular torsion. I advised Matthew s mother to take him tothe (LIJ) ER.

I called the (LIJ) ER to apprise them of Matthew s referral and of my concern thathe had a torsion of the left testicle.

This Cour finds that the plaintiffs ' proof submitted in opposition to defendants ' prima

facie showing of entitlement to judgment as a matter of law falls short of raising a triable issue

of fact.

The medical expert' s affidavit contains allegations that are simply conclusory and

unsupported by competent evidence tending to establish that any depare from accepted

practice was a proximate cause of injur or damage, an essential element of a medical

malpractice claim (Harth v. Mansur 243 AD2d 1041 (3rd Dept. 1997); Koeppel v. Park, 228

AD2d 288 (Ist Dept. 1996)). Therefore, this Cour finds that the plaintiffs expert is unworty of

defeating defendants ' summar judgment motion (Alvarez v. Prospect Hospital supra at 925;

Fhima v. Maimonides Medical Center 269 AD2d 559 (2 Dept. 2000); Heshin v. Levitt, 273

AD2d 442 (2 Dept. 2000)).

In order to be deemed sufficient, the expert affidavit must address both the issue of

whether there was a depare by the defendant from good and accepted medical practice and

standards and that such deparure proximately caused an injur to the plaintiff. An affdavit that

merely speaks of a deparure but is silent on the issue of proximate cause or "devoid of any

expression or opinion that the alleged deparure was a competent producing cause of any injur

or damage to the plaintiff " wil not be enough to defeat sumar judgment (Domaradzki v.

Glen Cove Ob/Gyn Associates 242 AD2d 282 (2 Dept. 1997); Fritz v. Souths ide Hospital, 182

AD2d 671 (2 Dept. 1992)).

In this case, plaintiffs expert' s only statement as to causation is "that the care rendered

by (Dr. Franco) represented a deviation and departure from the good and accepted practice of

urology and was the proximate cause of the plaintiff s discharge from the (LIJ) ER with adiagnosis of epididymits when he should have been admitted to the hospital and undergone

surgical exploration for a presumed torsion of the left testicle (Plaintif' s Expert Aff, ~4). Most

obviously, conclusory statements as to proximate cause do not suffice for the purose of

establishing that the deparures by the defendant from good and accepted medical practice and

standards proximately caused an injur to the plaintiff (Johnson v. Westfeld Memorial Hospital

Inc. 184 Misc.2d 792 (Sup. Ct. Chautauqua 2000)).

While this Court finds that the plaintiffs expert has raised an issue of fact as to Dr.

Franco s deparure from the good and accepted practice of urology in failing to inquire and

ascertin the full findings of the physical examination performed by Drs. Aroyo and Fossett and

the full results of the nuclear scan and ultrasound examination, and even his failing to present to

the hospital to fulfill his obligations as the attending on call for urology to make certain a full

appropriate and correct evaluation of the child was rendered, the fact is that plaintiff s expert

fails to present an issue of fact that any of these depares was the proximate cause of plaintiff s

injur herein.

Additionally, the plaintiffs expert does not dispute that the infant plaintiffs testicle

could no longer be salvaged by the time Dr. Franco was contacted by Dr. Fossett on July 10th

While the expert opines that "there is no way for Dr. Franco to state that the testis was non-

viable when the child first presented to the (LIJ) Emergency Deparment" (Plaintif' s Expert Aff,

12), he fails to claim that the nuclear scan itself showed a salvageable testicle. In that regard, he

opines that "(w)hile Dr. Franco s opinion is that the central photopenic area represented a non

viable testis, the interpretations of the radiologists revealed that the central photopenic was not

present on all images and this finding may represent a late or delayed torsion (Id. at ~1 0).

Further, plaintiffs expert overlooks the fact that Dr. Franco was not contacted by LIJ until after

the results of the nuclear scan were made available - some time after 7 :20 p.m. and he fails

entirely to dispute the defendant's expert' s claim that the viability of a tortioned testicle will be

lost if blood flow is not restored within six hours.

Having failed to address crucial and dispositive issues raised by the defense expert

plaintiffs expert' s affidavit is herewith rejected as deficient (Fhima v. Maimonides Medical

Center supra).

All experts agree that the nuclear scan was misinterpreted. All experts agree that the scan

actually showed a late or missed torsion which Dr. Franco and his expert, Dr. Hensle , explain

means that the testicle could no longer be salvaged. As the plaintiff s expert fails to claim that

the nuclear scan in fact showed a salvageable testicle, this Cour is compelled to grantdefendants ' motion for summar judgment dismissal of plaintiffs complaint.

Inasmuch as defendant LIJ also opposes defendants ' motion for summar judgment said

opposition also fails to present any issues of material fact waranting a trial. In opposition

defendant LIJ submits inter alia the expert affidavit of Bar Rubin, M. , a Board Certified

physician in Urology; and the affidavit of Michele Morrison, R. A.- , a physician s assistant

who was present in the Emergency Deparment of LIJ MC on July 10 , 2007 and who saw the

infant Matthew Mendez along with the urology resident, Dr. Fossett.

It is noted at the outset that Ms. Morrson s affidavit does not constitute competent

admissible evidence in the face of defendants ' prima facie showing. Ms. Morrison states in her

affidavit in pertinent par, as follows:

Although I did not call Dr. Franco, I was aware that Dr. Fossett spoke with himby telephone on July 10 2007 , although I did not observe the discussions.

It is the custom and practice of the urology residents and physician s assistatswhen reporting the findings of a radiologic study to an attending physician overthe telephone, to read the entire radiologic report to them verbatim.

Notably, not only do Ms. Morrison s sworn statements help Dr. Franco s position in that

she supports his argument he had no reason to believe that Dr. Fossett' s reading of plaintiffs

nuclear scan and the results of his physical examination were incomplete and that he did notdepar from the good and accepted practice of urology in failing to inquire and ascertain the full

findings of the physical examination performed by Drs. Arroyo and Fossett and the full results of

the nuclear scan and ultrasound examination, but Ms. Morrison s opinions are not competent

medical evidence (Jordan v. Glen Falls Hospital 261 AD2d 666 (3 Dept. 1999)). She is not a

medical doctor and therefore her opinions canot be considered competent medical opinion on

the issue of defendant's negligence (Ici.

Similarly, Dr. Rubin s expert affidavit also falls short of raising a triable issue offact. Dr.

Rubin fail to raise any issue of fact dealing with whether Matthew s testicle was salvageable by

the time he arived at LIJ on July 10th, or whether Dr. Franco exercised improper medical

judgment based on the information he was provided by Dr. Fossett.

In his expert affidavit, Dr. Rubin speaks generally to Dr. Franco s failure to ask Dr.

Fossett pertinent questions about the findings on the nuclear scan beyond the finding of the

increased flow to the hemiscrotum (Rubin Aff, ~~5-8). While unlike plaintiffs expert, Dr. Rubin

does opine that "the lack of inquiry by Dr. Franco caused the infant plaintiff to be discharged

from the hospital with a diagnosis of epididymitis instead of delayed torsion(Id. at 14), in the

absence of any sworn statements that the testicle was salvageable by the time the results were

read to Dr. Franco , this Cour finds that proximate cause has not been established as required for

a medical malpractice claim (Horth v. Mansur supra; Koeppel v. Park supra).

Therefore, in the absence of any issue of fact raised by defendant LIJ, plaintiff s

complaint as against defendant Dr. Franco and PUA is dismissed.

This constitutes the decision and order of the Court.

DATED: July 21 2010

ENTER

/ HON.. . RTHUR M. DIAMOND

To:Attorney for PlaintifWENICK & FINGER, PC28 East 28th St. , 13th FloorNew York, NY 10016-7900646) 837-0100

Attorney for DefendantSHELDON E. GREEN, P.566 Sunset Dr.Woodmere, NY 11598569-3300

ENTEREDJUL 28 2010

NASSAU COUNTYCOUNTY CLERK'

OFFICE