Order, Supreme Court, New York County (Joan B. Lobis, J.), entered on or about November 3, 2010, which, insofar as appealed from as limited by the briefs, denied the branch of the motion of defendants, Martin Camins, M.D., and Mt. Sinai Medical Center, for summary judgment dismissing the medical malpractice cause of action, affirmed, without costs.
On April 11, 2006, defendant Dr. Martin Camins performed surgery upon plaintiff Joseph Valenti’s cervical spine at defendant Mt. Sinai Medical Center. Plaintiff had previously been diagnosed with a disc herniation at the C4-C5 level with severe canal stenosis and spinal cord compression, degenerative changes with canal stenosis at the C5-C6 level as well as an increased signal at the T2 level of the spinal cord. These spinal abnormalities had caused plaintiff to experience numbness and pain on the left side of his body, his face and his penis, and an inability to obtain an erection. During the surgery, defendant Dr. Camins performed cervical diskectomies at C4-C5 and C5-C6, and a C5 vertebrectomy with placement of a cervical cage and plate. Dr. Camins secured the plate by inserting two 13mm screws.
Two months after the surgery, plaintiff continued to feel some pain in the area of his throat. Dr. Camins ordered a follow-up X ray of plaintiffs cervical spine. The report interpreting the X ray was prepared by Dr. Michael Rothman on June 12, 2006, and stated that “[plaintiff] is soft tissue ACDF, plate and screw fixa
[520] tion from C4 through C7 with an intervening metallic cage and partial corpectomies at C5 and C6 . . . The superior screws overlie the inferior C4 vertebral body. The inferior screws appear to overlie the C6-7 disc space. The exact position is uncertain and correlation with CT scan is suggested.” Three days later, Dr. Gamins wrote a letter to Dr. Mahesh Chhabria, plaintiffs neurologist, which stated that “[o]n June 12, 2006, a routine cervical spine radiograph was performed to assess [plaintiffs] cervical spine hardware. It appears that at the C7 level the screws are backing out. In view of that, I have recommended that we take the patient to the operating room suite to re-position his plate and screws.” The corrective surgery was performed, in two stages, on June 27, 2006. The operative report for the first stage stated that “[a]fter the previously placed plate had been visualized, it was obvious that there was screw back out at the C7 level.”
Plaintiff commenced this action seeking damages for medical malpractice and lack of informed consent. In his bill of particulars, plaintiff claimed that Dr. Gamins was negligent in, inter alia, his “improper placement of orthopedic hardware.” The bill did not specify where such hardware was allegedly improperly placed. At Dr. Gamins’ deposition, however, plaintiffs counsel asked him multiple questions about the fact that the X ray report from Dr. Rothman referred to the C7 level. Counsel also asked numerous questions about defendant’s own letter to Dr. Chhabria, as well as the operative report regarding the first stage of the second surgery. Both of these documents indicated that there was a screw back out at the C7 level. Dr. Gamins acknowledged the references to C7, but contended that this was a mistake, and that the documents should have stated C6.
Plaintiff also took the deposition of nonparty Dr. Harshpal Singh, who assisted Dr. Gamins in the second surgery. Dr. Singh was asked a multitude of questions about the precise placement of the screws during the first surgery. He acknowledged that the operative report for the second surgery stated that a screw had been placed at the C7 level. However, he also surmised that this was a typographical error because the operative report for the first surgery did not indicate that a screw had been placed there.
At the close of discovery, defendants moved for summary judgment. They supported the motion with the affirmation of Douglas Cohen, M.D., a spinal surgeon. Dr. Cohen reviewed the records regarding Gamins’s diagnosis of plaintiff and the two surgeries he performed on plaintiff. He opined that Dr. Gamins properly obtained plaintiffs informed consent. He also stated that everything Gamins had done was in accordance with good
[521] and accepted medical and surgical practice. Further, he asserted that screw back out is a well-known and accepted complication of cervical spinal fusion surgery that can occur even with proper surgical technique and appropriate selection and placement of a cervical plate and screws. Dr. Cohen did not discuss where Gamins placed the screws and whether such placement necessitated the second surgery. However, he did state in a footnote that, according to Dr. Camins’s deposition testimony, the reference to the C7 level in the operative report from the second surgery was a typographical error.
In opposition, plaintiff submitted the affirmation of an unidentified orthopedist. The orthopedist contended that Dr. Camins’s malpractice lay in his having placed a screw at the C7 level. He referred to Camins’s own records to establish that a screw was placed there. The doctor did not make any reference to plaintiffs informed consent claim.
Defendants submitted a reply affirmation from Dr. Robert Schneider, a radiologist. Dr. Schneider averred that, contrary to the statement by plaintiffs expert, the C-7 vertebral body was not operated on during plaintiffs April 11, 2006 first surgery, as the lower cervical plate screw was positioned into the C-6 vertebral body and did not overlie the C6-C7 disc space. He annexed to his affirmation a copy of an X ray of plaintiffs cervical spine taken after plaintiffs first operation, which he interpreted as showing an anterior plate with screws at the C-4 and C-6 levels, and none at the C7 level. He opined that the screws were in good position without any evidence of displacement. Dr. Schneider also stated that a spinal X ray taken before the second surgery showed that the lower screws were secured into the C-6 vertebral body in the proper position, but had backed out.
The motion court denied defendants’ motion for summary judgment. The court found that Dr. Cohen’s affirmation was sufficient to make a prima facie showing of entitlement to summary dismissal of the malpractice claim. However, it also determined that the affirmation of plaintiffs expert created an issue of fact by stating that there was evidence that a screw had been misplaced during the original surgery. The court rejected Dr. Schneider’s reply affirmation as “new evidence,” and accordingly refused to consider it. In any event, the court stated, defendants’ reply only “underscored the] conflict” concerning the placement of screws. The court dismissed plaintiff’s informed consent claim.
Defendants argue on appeal that plaintiffs theory of liability, based on Dr. Camins’s having placed a screw in the wrong position, was raised for the first time in opposition to the summary
[522] judgment motion and took them by surprise. Defendants assert that the allegation in plaintiffs bill of particulars regarding the “improper placement of orthopedic hardware” was too vague to have placed them on notice that plaintiff believed that Dr. Gamins inserted a screw at the wrong level of plaintiffs cervical spine. Accordingly, defendants contend, they had no choice but to submit Dr. Schneider’s affirmation in reply, since they could not have done so when they submitted their moving papers.
We disagree. Plaintiffs bill of particulars, by itself, may have been too undefined to apprise defendants that plaintiff believed Dr. Gamins to have committed malpractice by placing a screw at the C7 level of the cervical spine. However, a party may raise even a completely unpleaded issue on summary judgment so long as the other party is not taken by surprise and does not suffer prejudice (see Rosario v City of New York, 261 AD2d 380 [1999] [permitting the defendant to move for summary judgment on basis of unpleaded defense]). Here, there was no surprise because the question of precisely where Dr. Gamins originally placed the screws that backed out was clearly identified as an issue at the depositions of Dr. Gamins and Dr. Singh. Plaintiffs counsel asked numerous questions at the depositions regarding the issue. For defendants to now argue that they did not consider the place where the backed-out screw was originally inserted to be a part of plaintiffs theory of liability is simply disingenuous. Indeed, in light of this, we depart from the motion court to the extent it found that defendants met their prima facie burden on their summary judgment motion. In order to have done so, defendants would have had to directly address each and every element of the claimed malpractice (see Wasserman v Carella, 307 AD2d 225, 226 [2003]). Since it was obvious, at the time defendants moved for summary judgment, that plaintiff believed Dr. Gamins to have committed malpractice by placing a screw in the wrong place, the issue became part of defendants’ prima facie burden. Because defendants did not address it, the burden never shifted to plaintiff to raise an issue of fact.
In any event, defendants’ own submissions in support of the motion for summary judgment establish that there are issues of fact precluding such relief. Three documents, two of them prepared by Dr. Gamins himself, state clearly that a screw was placed at the C7 level. Defendants consistently attributed the references to C7 as “misstatements.” This may be true. However, it raises a factual question that may only be resolved by a jury (see Bradley v Soundview Healthcenter, 4 AD3d 194 [2004]).
[523] The dissent, in arguing that defendants could not have anticipated the theory advanced by plaintiffs expert in opposition to the summary judgment motion, focuses primarily on the pleadings. Again, the key is not what is in the pleadings, but whether the moving party was surprised or prejudiced (see Rosario at 380). The bill of particulars may not have specified how Dr. Gamins engaged in the “improper placement of orthopedic hardware.” However, by repeatedly questioning Dr. Gamins at his deposition regarding the placement of a screw at the C7 level, plaintiff undoubtedly placed him on notice that the possible mislocation of the screw was a central concern that defendants would be required to address at the summary judgment stage. Accordingly, the dissent’s reliance on Feliciano v New York City Health & Hosps. Corp. (62 AD3d 537 [2009]), in which the theory of liability raised in opposition to summary judgment was, unlike here, truly “new,” is inapposite. Moreover, the dissent completely disregards the unavoidable fact that the record contains more than one statement from Dr. Gamins himself that he placed a screw at a location which was not medically indicated.
Based on the foregoing, defendants were required to demonstrate affirmatively that the screw which backed out was not misplaced during the first surgery. This would have included, as part of their prima facie case, submitting the radiologist’s affirmation that was only first submitted in reply. Because defendants did not address the issue in their moving papers, the burden never shifted to plaintiff to submit evidence establishing the existence of an issue of fact. In any event, it cannot be ignored that the record contains more than one statement from Dr. Gamins himself that he placed a screw at a location which was not medically indicated. At the very least, this discrepancy in the record creates an issue of fact that precludes summary judgment, and which could not have been cured by defendants’ submission in reply. Concur — Mazzarelli, J.E, DeGrasse, AbdusSalaam and Román, JJ.
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