Moore v. Shahine

Background

Serina Moore, proceeding without a lawyer, brought a medical-malpractice action against Ayman A. Shahine, M.D. The remaining claims were medical malpractice, malpractice based on lack of informed consent, and a possible privacy claim. Moore alleged injuries involving her face and joints, pain, reputational and occupational harm, and emotional distress arising from plastic-surgery services provided by Shahine.

Moore stated that she was told she would be numbed but awake during the procedure and that remaining awake was important to her. She claimed that the anesthesia caused her to lose full consciousness, that Shahine performed procedures she had not authorized, and that she experienced pain during and after the procedure. She also suspected that photographs were taken and later shared. The consent documents stated that photographs or videos could be used for various purposes, including marketing, but Moore said she was rushed through signing them and did not have an opportunity to read them.

The court noted that it had previously dismissed time-barred intentional-tort allegations but had allowed negligence claims sounding in medical malpractice or informed consent to continue. The court also considered the possible privacy claim because it had not specifically addressed that claim at the earlier stage.

Summary Judgment Standard and Factual Submissions

Summary judgment is proper when the evidence shows no genuine dispute about a fact that could affect the result and the moving party is entitled to judgment under the law. Shahine submitted a statement of facts and expert evidence. Moore did not file a separate statement required by the local rules, but the court treated her opposing affidavit as her factual submission and independently reviewed the record. The court treated portions of Shahine’s factual statement that Moore did not controvert as admitted.

Medical Malpractice

Under New York law, Moore had to show that Shahine departed from accepted medical practice and that the departure proximately caused her injuries. Shahine submitted an affidavit from Theodore Diktaban, M.D., a board-certified plastic surgeon. Diktaban opined that Shahine’s care was within good and accepted medical practice and that Moore’s injuries were not caused or contributed to by Shahine’s care.

Moore did not submit expert testimony disputing Diktaban’s opinions. She argued that Shahine’s medical records were inaccurate, including records concerning her condition after the procedure and her six-month follow-up visit. The court stated that this contention was not implausible and took judicial notice of the existence of a New York Department of Health decision revoking Shahine’s medical license for falsifying medical records, among other charges. The court did not take notice of the truth of the facts contained in that decision.

The court nevertheless held that Moore had not supplied the expert testimony required to establish causation. Even assuming that Moore had complained about pain and dissatisfaction, she had not shown through required evidence that Shahine’s failure to respond to those complaints caused her injuries. The court therefore granted Shahine’s motion for summary judgment on the malpractice claims based on the alleged botched procedure and inadequate follow-up care.

Informed Consent

A New York informed-consent claim requires proof that the practitioner failed to disclose risks, benefits, or alternatives that a reasonable practitioner would have disclosed; that a reasonable fully informed person in the plaintiff’s position would have declined the procedure; and that the lack of consent proximately caused the injury. The court stated that expert testimony was required to establish these elements.

Moore argued that she was rushed into signing the consent documents and that Shahine exceeded the agreed scope of treatment by giving her anesthesia that caused her to lose full consciousness, using a power tool on her face, and injecting fat into her breasts or behind her neck. Shahine’s expert opined that the consent process complied with accepted medical practice, that the forms advised Moore of the risks, and that she had an opportunity to reconsider the surgery. The expert also opined that the anesthesia was standard and appropriate and that Shahine’s records did not document treatment of Moore’s breasts, neck, or face.

Although Moore had signed consent documents, the court stated that her signature alone did not establish Shahine’s entitlement to judgment as a matter of law. The court instead relied on Moore’s failure to provide expert testimony challenging Diktaban’s opinions and her failure to state that she would have declined the procedure if fully informed. The court also found that her personal impressions, without supporting evidence, were insufficient to counter the expert opinion about procedures allegedly performed beyond those documented. The court granted summary judgment on the informed-consent claim.

Privacy

Moore appeared to assert that Shahine violated her privacy by sharing her personal information and photographs. The court explained that New York does not recognize a general common-law right of privacy and provides a statutory remedy for unauthorized commercial use of a living person’s name, portrait, picture, or voice. Moore offered no evidence, beyond conclusory or speculative statements, that Shahine disseminated her photograph for commercial or any other use.

The court also considered whether Moore was alleging a violation of the Health Insurance Portability and Accountability Act, a federal medical-privacy law. It held that this law does not create a private right to sue, so Moore could not bring an individual lawsuit based on its violation. The court granted Shahine’s motion for summary judgment on the privacy claim to the extent Moore asserted one.

Disposition

Judge Analisa Torres granted Shahine’s motion for summary judgment. The Clerk was directed to mail Moore a copy of the order, terminate the motion at ECF No. 86, and close the case.