Defendants in personal injury cases commonly move for summary judgment. Summary judgment is only appropriate when there is no triable issue of fact. The court does not weigh the strength or credibility of evidence on a motion for summary judgment, but defendants may try to argue that the evidence submitted by the plaintiff is insufficient to raise a triable issue or in some way invalid. Such was the case in Gilliam v. Central Park Women’s Imaging, P.C.
The plaintiff alleged the defendants’ negligent use of particular cleaning wipes on the imaging machine caused her to develop rashes or chemical burns after receiving a mammogram at the defendant’s office. The defendants argued that the ingredients in the solution were not skin irritants and argued that the alleged injuries were therefore not foreseeable. They further argued that the plaintiff had not presented evidence establishing causation and that her allegation that the mammogram had caused her injuries was mere speculation. The defendants also argued that there was a two-month delay between the plaintiff’s mammogram and her dermatologic treatment, so she may have come into contact with other substances during that period. Furthermore, they argued that she alleged that her condition continued even though she was not continually exposed to the alleged irritant. They additionally argued that the pigmentation changes occurred only on the top of the plaintiff’s breasts, despite the mammogram plates contacting the bottom of her breasts as well. The defendants contended that the plaintiff had not produced evidence of causation or foreseeability.
The defendants submitted an affirmation of a doctor who had reviewed the materials. He affirmed that the solution did not cause the alleged injuries. He stated that a chemical burn would have required immediate treatment. The Material Safety Data Sheet provides that the solution is not a skin irritant, so the doctor concluded that any allergic reaction would be specific to the patient and therefore not foreseeable.
The plaintiff argued that there was a triable issue of fact as to whether the defendants negligently cleaned the machine and whether that negligence proximately caused her injury. She alleged that the machine looked damp at the time of her mammogram. She stated she experienced bumps and a change in pigmentation on the areas that the machine contacted, not just the tops of her breasts. She claimed that she went back to the defendants’ office a few days later and was told to see her doctor. She also argued that the doctor’s affirmation did not address that an ingredient in the solution was a skin corrosive and that the Safety Data Sheet advised removing contaminated clothing and immediately rinsing skin after contact with the solution. She claimed that the wipes are rated as a 1-Slight Hazard in the Hazardous Material Identification System.
The plaintiff submitted an affirmation from her treating dermatologist, who opined that she developed post-inflammatory hypopigmentation and a severe rash where she came in contact with the machine. He further opined that the reaction was consistent with a chemical injury from contact with the cleaner.
The defendants argued that the record of the plaintiff’s doctor’s appointment on April 19, 2010 reflected a rash between her toes and indicated that her breasts were normal. They argued that an expert was required to prove negligence and that the expert affidavit submitted by the plaintiff was not probative. They argued that the plaintiff’s expert affidavit did not state the expert’s qualifications. They further argued that the expert’s opinion was not based on the expert’s observation or treatment of the plaintiff. He stated he “believes” the rash resulted from the cleaning wipes but did not state he had a reasonable degree of medical certainty as to that issue. He did not offer an opinion that the defendants’ use of the wipes was negligent or that the wipes were the proximate cause of the rash.
The defendants argued that the Safety Data sheet the plaintiff submitted was unauthenticated and postdated the mammogram. They argued that the Safety Data sheet they submitted had been authenticated in deposition as the product in effect. They submitted a supplemental affirmation from their doctor, opining to a reasonable degree of medical certainty that the cleanser did not cause the alleged injuries. He claimed the plaintiff had misinterpreted the Medical Safety Data Sheet. He further opined that the photographs provided by the plaintiff did not show lesions on the bottom of her breasts.
The court found the defendants met their burden of making a prima facie case showing their entitlement to summary judgment. They showed that the cleansing wipes were not a skin irritant and that a causal relationship did not exist between the use of the cleansing wipes and the alleged injuries. The burden therefore shifted to the plaintiff to show that there were triable issues of fact.
The court then found that the plaintiff’s own testimony that the defendants had left excess cleaning solution on the machine and that she developed bumps and discoloration a day after the mammogram was sufficient to raise a triable issue of fact regarding whether the defendants were negligent in how they cleaned the mammogram machine and whether that negligence caused injuries to the plaintiff. The court found that both versions of the safety data sheets provided emergency first aid procedures to be taken if the wipes contact a person’s skin.
The court had previously determined that this case sounded in general negligence, rather than medical malpractice. The defendants’ arguments as to the alleged deficiencies in the plaintiff’s expert affirmation were based on the standards for expert testimony in a medical malpractice motion, and therefore they did not apply here. The court found that only the issue of whether contact with the wipes could cause skin irritation was outside the experience of a layperson, and the plaintiff had presented expert testimony that raised a triable issue of fact.
The court therefore denied the defendants’ motion for summary judgment.
Our New York personal injury attorneys recognize the importance of building a record to support the allegations in a complaint and opposition to a defense motion for summary judgment.
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Gilliam v. Central Park Women’s Imaging, P.C., March 30, 2016, Supreme Court of the State of New York, New York County
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Conflicting Medical Opinions Prevent Summary Judgment on Serious Injury Issue in New York, February 10, 2016, New York City Injury Lawyer Blog