Judges

Attorneys and Parties

Brief Summary

Background

From April to July 2015, Dean Phillips underwent three epidural steroid injections into his lumbar spine administered by Vikas Varma. Six days after the third injection (July 16, 2015), Phillips presented to the emergency room on July 22, 2015 with back pain radiating to the left leg. A magnetic resonance imaging (MRI) on July 28, 2015 showed an epidural abscess in the same area as the injection; he underwent a laminectomy that day, and wound cultures grew methicillin susceptible staphylococcus aureus (MSSA). In December 2017, Phillips sued Varma and Neuro-Pain Care, P.C., alleging negligent breach of sterile technique that introduced infection and lack of informed consent. Defendants relied on deposition testimony describing standard sterile procedures and expert affirmations opining compliance with accepted practice and noting infection is a known complication. Plaintiff’s expert, Alexander Weingarten, opined the MSSA infection would not have occurred absent a departure during the July 16, 2015 injection, given the location and six-day onset consistent with infection progression, and further opined the third injection should not have been performed due to lack of benefit from prior injections and lower dosage. The notice of appeal from the order was deemed a notice of appeal from the judgment under CPLR 5512(a) [treats a notice of appeal from an order as a notice of appeal from the ensuing judgment].

Lower Court Decision

Upon completion of discovery, the Supreme Court, Queens County (Peter J. O'Donoghue, J.) granted defendants’ motion for summary judgment, dismissing the complaint as against Varma and Neuro-Pain Care, P.C., finding defendants established adherence to accepted medical practice and that infection can occur absent negligence, and entering judgment on March 24, 2023.

Appellate Division Reversal

Reversed on the law. Although defendants made a prima facie showing of adherence to standard sterile procedures, they did not establish, prima facie, that any departure was not a proximate cause. Plaintiff raised triable issues via (1) res ipsa loquitur—Weingarten opined the MSSA epidural infection would not occur absent negligence, the instrumentality (epidural injection) was within defendants’ exclusive control, and no evidence suggested plaintiff’s voluntary action caused the injury; and (2) the medical judgment to administer a third injection despite no prior relief and at a lower dose. On lack of informed consent, defendants failed, prima facie, to show adequate disclosure of reasonably foreseeable risks; a signed consent form alone was insufficient. The motion for summary judgment was denied and the complaint reinstated as against Varma and Neuro-Pain Care, P.C.

Legal Significance

The decision reaffirms that in infection cases following invasive procedures, the doctrine of res ipsa loquitur can create a triable issue despite a practitioner’s testimony of routine sterile technique. Defendants seeking summary judgment must also negate proximate cause, not merely show compliance with standard of care. For informed consent, defendants must present competent proof of risk disclosure beyond a signed form to obtain dismissal at summary judgment.