212.606.1823 212.734.3833 (fax) www.hss.edu alumni@hss.edu. A late motion filing is properly entertained when it raises nearly identical issues to one timely made (see Lapin v Atlantic Realty Apts. As defendant Hospital for Special Surgery (together with codefendants Frelinghuysen and Girardi, HSS) concedes, its cross motion was untimely, and it did not allege any good cause for its delay. HSS Alumni Association Newsletter: Fall 2009 2013 NY Slip Op 08548 On November 19, 2004, the clinic notes indicate that Frelinghuysen planned to review the patient films with Girardi and "we will plan for an anterior cervical decompression and fusion at a later date." Finally, the majority adopts the trial court's conclusion that the expert's opinion is imprecise with respect to the nature of the alleged deterioration in plaintiff's condition and the extent to which each hospital bears responsibility. Co., LLC (48 AD3d 337 [1st Dept 2008]), for the principle that there is an exception to Brill for cases where a late motion or cross motion is essentially duplicative of a timely motion. Plaintiff commenced this action against HSS and HJD claiming, in essence, that defendant hospitals were negligent in declining to timely perform the surgery he sought, particularly, that their delay caused him to sustain injury that otherwise might have been avoided. Even if we were to find that the Court of Appeals intended for an exception to be carved out of Brill for incorrectly labeled "me too cross motions," that is, motions relying on the arguments and evidence of the originally filed motions, to the extent HSS's motion against a nonmoving party can be properly considered such a motion, the motion court correctly found that it is not merely a duplication of HJD's timely motion. Unlike the dissent, we do not find that a straightforward interpretation of the statute, or Brill, leads to "absurd and unintended consequences," especially as the Court of Appeals acknowledges in Brill that if the strictures of CPLR 3212(a) are applied "as written and intended," there may be situations where a meritorious summary judgment motion may be [*8]denied, "burdening the litigants and trial calendar with a case that in fact leaves nothing to try" as was the result in Brill (2 NY3d at 653). I even liked the food I compared it to high-end diner fare). I respectfully disagree with the majority's holding and would dismiss plaintiff's claim of medical malpractice against defendants Hospital for Special Surgery and its physicians (collectively, HSS). After residency, Dr. Cross completed his fellowship in Adult Reconstruction at Rush University Medical Center in 2013where he won the Jorge O. Galante, MD Fellow Research Award. He attended Washington University in St. Louis for his undergraduate education, where he double majored in chemistry and mathematics/statistics and played varsity football. Particularly, the majority holds that the summary judgment motion interposed by HSS was untimely and beyond the motion court's power to entertain pursuant to Brill. Unlike Brill, the circumstances presented by the instant matter do not furnish a compelling reason to depart from prior authority affording a court discretion to entertain a marginally late filing where the party's application has merit and no prejudice has been demonstrated by an adversary (see e.g. Plaintiff undertook these programs through HJD's clinic, and was treated continuously until September of 2005. They work like a well-oiled machine. After surgery, Dr. Hecht observed that he did not "see a substantial neurologic improvement on [his] objective testing, but the patient does feel subjectively like he is improving." Mobile Navigation Menu. Find a Doctor: By Name, Specialty, Location & Insurance Find a Doctor At HSS, the world's best musculoskeletal specialists work together to provide the best care for you. Both seek dismissal of the complaint on the identical ground that it was not a departure from good and accepted medical practice to forego surgery in favor of a conservative treatment plan, i.e., based on the severity of plaintiff's existing spinal disease and the low prospect of improving his condition, the decision not to subject plaintiff to the risk of quadriplegia or death was a sound medical decision. He submitted the affidavit of his medical expert, Michael J. Murphy, M.D., an orthopedic surgeon practicing in Connecticut. Sinai. At his next visit on November 12, 2004, a different doctor indicated in the clinic notes that Frelinghuysen and Girardi had recommended "what sounds like a two-level anterior cervical decompression and fusion," and that plaintiff would follow up in one week "to discuss surgery" [*3]with Frelinghuysen [FN1]. Plaintiff returned to HSS in June 2004 complaining of increasing right shoulder dysfunction and neck pain, and decreasing balance. Contrary to the majority's assertion, I do not advocate limiting application "of Brill to those actions where a party files a motion for summary judgment long after the deadline for dispositive motions and the matter is on the trial calendar." "It is well settled that the duty owed by one member of society to another is a legal issue for the courts' (Eiseman v State of New York, 70 NY2d 175, 187 [1987]). Find All Providers . Sinai for much of that time. Dr. Michael B. In Frelinghuysen's words, he and Girardi decided that surgery "would not help." McAloon & Friedman, New York (Gina Bernardi Di Folco of counsel), for respondent. With the advantage of hindsight, the doctor offers that "[w]hile further diagnostic studies were not inappropriate, they did not contribute any substantial information which would alter the indicated treatment." If you know this doctor and/or would like to share more about his good work please feel free to add a comment below. Financial Disclosures. In short, the HSS "cross motion" was more than a late "me too" motion and should not have been considered on its merits. Of course, it must be pointed out that the cross-movant would have good cause for its late motion in that situation, and the cross motion would be evaluated on its merits (see e.g. Orthopedic surgeon to know: Dr. Michael B. Cross of Hospital for As this Court recently noted in Williams v New York City Tr. You can explore additional available newsletters here. MichaelPaulAstMDFAAOS Orthopaedic Surgery New York, NY Hip & Knee Reconstructive Surgery Assistant Professor, Orthopaedic Surgery Chief Medical Innovation Officer Vice Chair, HSS Innovation Institute Hospital for Special Surgery Join to view full profile Office 541 East 71st Street 6th Floor New York, NY 10021 Phone+1 201-599-8056 Thus, his opinion is an ambiguous statement of causation, amounting to bare conjecture, which is insufficient to defeat a motion for summary judgment (see Foster-Sturrup v Long, 95 AD3d 726, 728-729 [1st Dept 2012]; Callistro v Bebbington, 94 AD3d 408, 410-411 [1st Dept 2012], affd 20 NY3d 945 [2012]). ", As to the delay causing any injury, the doctor stated that there was no identifiable injury caused by any alleged delay during the four month period between when plaintiff was first seen at HJD and when he first went to Mt. Cross M.D - Orthopaedic Surgeon - Home | Facebook Michael B. hilton houston address. Under the circumstances presented by this matter, this view constitutes an unnecessarily rigid application of [*14]CPLR 3212(a), contravening the sound policy considerations underlying the decision and the intent expressed by the Legislature in amending the statute. 535 E 70th St . After surgery, he was pain-free but did not recover a full range of motion in his upper left arm. While defendants have not raised the question of whether the complaint is actionable, the issue should nevertheless be decided preliminarily. The motion court granted HJD's motion and denied the motion of HSS. Furthermore, both the memorandum and Brill identify an adversarial party's lack of adequate time to prepare a response to the motion as the problem to be addressed. While courts have deemed this mislabeling a "technical" defect which will be disregarded, particularly where the nonmovant does not object and it results in no prejudice to the nonmoving party (see Sheehan v Marshall, 9 AD3d 403, 404 [2d Dept 2004]), in this case the nature of nonmovant plaintiff's opposition is that there was prejudice because to the extent the court deems HSS's motion a cross motion, the Brill rule is ignored. Dr. Cross is board-certified with several association memberships, including the American Academy of Orthopaedic Surgeons, the New York State Society of Orthopaedic Surgeons, the American Association of Hip and Knee Surgeons, the Orthopaedic Research Society, and the Musculoskeletal Infection Society. The clinic notes also indicate that plaintiff told the examining physician that he had recently secured a job and was not interested "whatsoever" in immediate surgery; plaintiff disputes this and says he was not working at that time. hurley joggers womens; sink clips not long enough; viewsonic vx3276 mhd reset; usaa dental insurance number; dr michael cross leaving hss. [Habiterra Assocs. Thus, there were issues of fact raised "as to the advisability of surgery sufficient to defeat the motion for summary judgment on the merits.". On October 1, 2004, plaintiff saw defendant Dr. Peter Frelinghuysen, an orthopaedic surgeon at HSS, who noted that he was "very concerned" that there was only a small chance that surgery would improve plaintiff's condition. Thus, Brill cannot be said to reflect an intent to abandon the conspicuous advantages of summary judgment for the sake of procedural formalism. The authorized official title is Physician and has the following contact phone number (212) 774-2114. When deciding a motion for summary judgment, the court's function is issue finding rather than issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). Health A-Z. Plaintiff filed his note of issue on August 24, 2011. They work like a well-oiled machine. Sinai where plaintiff later underwent a two stage revision cervical laminectomy with fusion. Michael B. Electronic tests revealed that plaintiff's cervical condition was significantly the same as in 2005 which supported Dr. Hecht's post surgical findings. New York County (Alice Schlesinger, J. The answer is yes. In that regard, the majority's disposition is antithetical, directing a party to try a case under circumstances to which Brill is inapposite because trial has been delayed not by an eleventh-hour summary judgment motion, but by one that is altogether timely. HSS did not merely rely on the papers amassed by HJD, and as the motion court correctly noted, "[d]ifferences [in the factual record] necessarily exist because [plaintiff] was a patient at HSS for an extended time before he came to [HJD]" and he was "a patient [at HJD] from only February 2005 to September 2005. Granted, the HSS motion is not a cross motion, as denominated, and as such it is untimely (CPLR 2215). Your email address will not be published. Plaintiff continued to complain of cervical and lumbar discomfort and worsening of the pre-existing weakness in his right upper extremity. "Thus, the rationale for the court's denial was articulated as being that the "cross motion" was untimely. [*7]. He received his medical degree from Vanderbilt University School of Medicine and has been in practice between 11-20 years.. Our decision is not one on the merits of plaintiff's claim, and it is therefore premature to bemoan that we have opened a Pandora's box for surgeons. Footnote 4: The dissent overlooks the very different lengths of treatment offered to plaintiff by HSS and HJD. "The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Specialties: We provide physical, occupational, and speech therapy primarily in an in-home setting for the older adult community, and with recent addition of services at our skilled nursing facilities, outpatient and pediatric settings. No surgery would have been able to reverse plaintiff's neurological deficits, "which were significant by the time he presented at HJD, and had already existed for many years." From the time of my first phone call to my most recent post-op consultation I knew I was in the hands of a pre-eminent surgical team. Feinman, J. Lapin is one in a line of cases holding that an untimely cross motion may be considered on its merits when it and the timely motion address essentially the same issues. dr michael cross leaving hss. However, the solution, the Court of Appeals explains, is not for the courts to overlook or bend CPLR 3212(a) to fit the particular circumstances, but for "practitioners [to] move for summary judgment within the prescribed time period or offer a legitimate reason for the delay" (id.). Dr. Machler reported that plaintiff had mildly positive reactions to molybdenum, tobramycin, benzoic acid, and formaldehyde. An MRI of his cervical spine taken the same day found "severe central canal and severe neural foraminal stenosis," resulting in "severe myelomalacia of the spinal cord" from C3 to mid-C5 level. Find Providers by Specialty Find Providers by Procedure. Copyright 2023 OrthoIndy. All concur except Tom, J.P. and Freedman, J. who dissent in part in an Opinion by Tom, J.P. The courts will no longer have to address the kinds of questions we address here. In April 2003, plaintiff again returned because he was experiencing increased weakness in his right upper arm. New York, NY, 10021. charmeuse flutter sleeve a line bridesmaid dress September 10, 2022 September 10, 2022; best fpv camera and transmitter . As most recently articulated in Gibbs: Visit Website. However, disregarding the untimeliness of HSS's motion, the court held that issues of fact precluded HSS from being granted summary judgment. According to Girardi, after viewing the films, in his opinion the severity of plaintiff's spinal disease and the low prospect of improvement did not warrant the risks of surgery. Rather, it will be for a trial court and a jury to hear plaintiff's case, and should plaintiff prevail, then, assuming a timely appeal is taken and perfected, and only then, will we have occasion to consider the merits of the claim against HSS. ), entered July 16, 2012, which, insofar as appealed from as limited by the briefs, granted the summary judgment motion of defendants Hospital for Special Surgery, Peter Frelinghuysen, and Federico Pablo Girardi (collectively HSS) only to the extent of dismissing plaintiff's claim of lack of informed consent, and otherwise denied the motion, should be affirmed, without costs; the judgment of the same court and Justice, entered August 20, 2012, dismissing the complaint as against defendant New York University Medical Center Hospital for Joint Diseases, should be affirmed, without costs.
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