FILED: WESTCHESTER COUNTY CLERK 12/04/2017 01:27 PM NYSCEF DOC. NO. 1 INDEX NO. 69860/2017 RECEIVED NYSCEF: 12/04/2017 BAKER, LESHKO, SALINE & DRAPEAU, LLP Attorneys for Plaintiff One North Lexington Avenue White Plains, New York 10601-1712 914.681.9500 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER MARY EDWARDS, Date Purchased: 12.04.17 Plaintiff, Index No. 69860/2017 -againstSUMMONS ERIC FISHMAN, M.D. and WESTMED MEDICAL GROUP, P.C., Defendant. TO THE ABOVE-NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the plaintiff's attorneys within twenty (20) days of service of this summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. 1 1 of 13 FILED: WESTCHESTER COUNTY CLERK 12/04/2017 01:27 PM NYSCEF DOC. NO. 1 INDEX NO. 69860/2017 RECEIVED NYSCEF: 12/04/2017 Plaintiff designates Westchester County as the place of trial. The basis of venue is the residence of the parties hereto. Plaintiff has an address 96 Hawley Avenue, Port Chester, New York 10573. Dated: White Plains, New York December 4, 2017 BAKER, LESHKO, SALINE & DRAPEAU, LLP Attorneys for Plaintiff By: _________________________________ Mitchell J. Baker One North Lexington Avenue White Plains, New York 10601 914.681.9500 To: Eric Fishman, M.D. One Theall Road Rye, New York 10580 Westmed Medical Group, P.C. 73 Market Street Yonkers, New York 10710 2 2 of 13 FILED: WESTCHESTER COUNTY CLERK 12/04/2017 01:27 PM NYSCEF DOC. NO. 1 INDEX NO. 69860/2017 RECEIVED NYSCEF: 12/04/2017 BAKER, LESHKO, SALINE & DRAPEAU, LLP Attorneys for Plaintiff One North Lexington Avenue White Plains, New York 10601-1712 914.681.9500 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER MARY EDWARDS, Plaintiff, Index No. 69860/2017 -againstCOMPLAINT ERIC FISHMAN, M.D. and WESTMED MEDICAL GROUP, P.C., Defendants. Mary Edwards, by her attorneys, Baker, Leshko, Saline & Drapeau, LLP, complaining of the above-mentioned defendants, alleges as follows: 1. Plaintiff Mary Edwards is a citizen and resident of the State of New York, County of Westchester. 2. Defendant Eric Fishman, M.D. is, upon information and belief, a duly licensed physician authorized to practice medicine in the State of New York. 3. Dr. Fishman specializes in vascular surgery. 4. Westmed Medical Group, P.C. (hereinafter “Westmed”) is a professional corporation organized under and existing pursuant to the laws of the 3 3 of 13 FILED: WESTCHESTER COUNTY CLERK 12/04/2017 01:27 PM NYSCEF DOC. NO. 1 INDEX NO. 69860/2017 RECEIVED NYSCEF: 12/04/2017 State of New York. 5. At all times relevant herein, Dr. Fishman was employed by defendant Westmed. 6. At all times relevant herein, defendant Westmed is vicariously liable for the acts or omissions of its doctors, agents, employees and/or staff. 7. At all times relevant herein, and prior thereto, Ms. Edwards was a patient of defendant Westmed. 8. Prior hereto Ms. Edwards developed a varicose vein in one of her 9. She subsequently went to her regular physician, who referred her to legs. Dr. Fishman. 10. On or about April 21, 2017 Dr. Fishman operated upon Ms. Edwards to remedy her varicose vein. 11. Ms. Edwards was placed under local anesthesia during this operation. 12. She was cognizant of what was transpiring and what was being said during the operation. 13. During this surgery in April, 2017, another individual appeared in the operating facility wherein this other individual and Dr. Fishman discussed the medical condition of another patient. 14. Even though the other person said that Dr. Fishman appeared busy and would talk to him later, Dr. Fishman said he could then talk to the other person 4 4 of 13 FILED: WESTCHESTER COUNTY CLERK 12/04/2017 01:27 PM NYSCEF DOC. NO. 1 INDEX NO. 69860/2017 RECEIVED NYSCEF: 12/04/2017 about another patient during the operation of Ms. Edwards. 15. After this operation was concluded, Dr. Fishman advised Ms. Edwards that she needed a second operation to remedy the varicose vein. 16. On or about September 29, 2017 Ms. Edwards underwent a second operation which was conducted by Dr. Fishman. 17. During this second operation, Ms. Edwards was placed under local anesthesia. 18. During this second operation, Ms. Edwards was cognizant of what was transpiring and what was being said during the operation. 19. Prior to this second operation, Dr. Fishman advised Ms. Edwards that the operation would take approximately thirty to thirty-five minutes. 20. Dr. Fishman commenced the operation. 21. During the operation, Dr. Fishman commenced a conversation with one or more individuals on a cellular telephone. 22. Upon information and belief, the cellular telephone used by Dr. Fishman was a cellular telephone which he owned. 23. Upon information and belief, the cellular telephone used by Dr. Fishman was brought into the operating facility by Dr. Fishman. 24. Upon information and belief, no efforts were made to sanitize and/or sterilize the cellular telephone before it was brought into the operating facility. 25. During the operation, Dr. Fishman spoke to the individual or 5 5 of 13 FILED: WESTCHESTER COUNTY CLERK 12/04/2017 01:27 PM NYSCEF DOC. NO. 1 INDEX NO. 69860/2017 RECEIVED NYSCEF: 12/04/2017 individuals on the cellular telephone in the English and Spanish languages. 26. Ms. Edwards is fluent in the English and Spanish languages. 27. During the conversation that Dr. Fishman had over the cellular phone in the operating facility, he was talking to the other individual or individuals regarding something to do with female breast milk. 28. Subsequently, Dr. Fishman stated to the other individual or individuals over the cellular phone in the first person that he experienced night sweats. 29. Subsequently, Dr. Fishman stated to the other individual or individuals over the cellular phone in the first person that he suffered from diabetes. 30. Subsequently, Dr. Fishman stated to the other individual or individuals over the cellular phone in the first person that he had blurred vision. 31. During the course of the operation and hearing the conversation that Dr. Fishman had over the cellular phone, Ms. Edwards suffered great panic and emotional distress. 32. After the second operation, Dr. Fishman stated to Ms. Edwards that he was on his cellular telephone taking a language proficiency examination. 33. Dr. Fishman further explained to Ms. Edwards that he operates on Spanish speaking clients, and as such, he needs to be certified in the Spanish language. 34. Dr. Fishman then explained to Ms. Edwards that the time of her 6 6 of 13 FILED: WESTCHESTER COUNTY CLERK 12/04/2017 01:27 PM NYSCEF DOC. NO. 1 INDEX NO. 69860/2017 RECEIVED NYSCEF: 12/04/2017 operation coincided with the only time he could take the language proficiency examination and therefore he performed such language proficiency examination at the same time he was operating on her. 35. The American College of Surgeons in a Statement on Distractions in the Operating Room, dated October 1, 2016, recommended that the use of smartphones in an operating room be guided by the following considerations: • The undisciplined use of smartphones in the OR—whether for voice, e-mail, or data communication, and whether by the surgeon or by other members of the surgical team— may pose a distraction and may compromise patient care. • Surgeons should be considerate of the duties of personnel in the OR suite and refrain from engaging them unnecessarily in activities, including assistance in cellular communication, that might divert attention from the patient or the conduct of the procedure. • Smartphones must not interfere with patient monitoring devices or with other technologies required for patient care. • Whenever possible, members of the OR team, including the operating surgeon, should only engage in urgent or emergent outside communication during an operation. 7 7 of 13 FILED: WESTCHESTER COUNTY CLERK 12/04/2017 01:27 PM NYSCEF DOC. NO. 1 INDEX NO. 69860/2017 RECEIVED NYSCEF: 12/04/2017 Personal and routine calls should be minimized. All phone calls should be kept as brief as possible. • Whenever possible, incoming calls should be forwarded to the OR desk or to the hardwired telephone in the OR to minimize the potential distraction of smartphones. • Whenever possible, incoming calls and data transmissions should be forwarded to voice mail or to memory. The ring tone should be silenced. An inaudible signal may be employed. • Whenever possible, a distinct signal for urgent or emergent calls should be enabled. This signal may be implemented via a “page” option in most smartphones. Callers should be advised to use this function only for urgent and emergent calls if the phone is unanswered. • The use of electronic and mobile devices or their accessories (such as earphones or keyboards) must not compromise the integrity of the sterile field. Special care should be taken to avoid sensitive communication within the hearing of awake or sedated patients. • Communication using hardwired phones in the OR is subject to the same discipline as communication using electronic device technology. 8 8 of 13 FILED: WESTCHESTER COUNTY CLERK 12/04/2017 01:27 PM NYSCEF DOC. NO. 1 INDEX NO. 69860/2017 RECEIVED NYSCEF: 12/04/2017 36. Dr. Fishman, during the second operation on Ms. Edwards when he engaged in taking a language proficiency examination while operating on Ms. Edwards violated one or more of the above recommendations from the American College of Surgeons. 37. Subsequent to the second operation on Ms. Edwards, she met with Dr. Steven Meixler, and Andrea McHugh and Dr. Fishman at the offices of Westmed. 38. Upon information and belief Dr. Meixler is a Medical Director of Westmed. 39. Upon information and belief, Ms. McHugh is responsible for or works in the risk management department of Westmed. 40. At such meeting Andrea McHugh admitted to Ms. Edwards that what happened during the September, 2017 procedure with Dr. Fishman was “not appropriate” and, in fact, that it was “totally inappropriate.” 41. Dr. Meixler admitted during this meeting that it is an unequal relationship between the patient and a surgeon such as Dr. Fishman, the patient is vulnerable, and the patient has to trust the doctor, a trust which was violated by Dr. Fishman. 42. At such meeting Dr. Meixler agreed that the behavior of Dr. Fishman during the first operation in April, 2017 in speaking to another individual about another patient was not “respectful” of her. 43. At such meeting, Dr. Fishman admitted that his behavior during the 9 9 of 13 FILED: WESTCHESTER COUNTY CLERK 12/04/2017 01:27 PM NYSCEF DOC. NO. 1 INDEX NO. 69860/2017 RECEIVED NYSCEF: 12/04/2017 first operation was not appropriate in light of HIPAA. 44. At such meeting Dr. Fishman admitted again that while he was operating on Ms. Edwards, he was taking the language proficiency examination over the cellular telephone. 45. At such meeting, Dr. Fishman said he could not defend and could not excuse his behavior during the September, 2017 operation. 46. Dr. Fishman admitted that he made a terrible mistake in using the cellular phone and taking a language proficiency test during the September, 2017 operation. 47. Incredibly, at this meeting Dr. Fishman admitted he was glad that Ms. Edwards made a complaint to Westmed about his behavior. AS AND FOR THE FIRST CAUSE OF ACTION AS AGAINST DEFENDANT DR. FISHMAN (Intentional Infliction of Emotional Distress) 48. Dr. Fishman’s conduct during the second operation on Ms. Edwards, which was performed at Westmed, was outrageous in character. 49. Dr. Fishman’s conduct during the second operation on Ms. Edwards was so extreme in degree as to go beyond all possible bounds of decency. 50. Dr. Fishman’s conduct during the second operation on Ms. Edwards was atrocious. 51. Dr. Fishman’s conduct during the second operation on Ms. Edwards 10 10 of 13 FILED: WESTCHESTER COUNTY CLERK 12/04/2017 01:27 PM NYSCEF DOC. NO. 1 INDEX NO. 69860/2017 RECEIVED NYSCEF: 12/04/2017 was utterly intolerable in a civilized community. 52. Dr. Fishman’s conduct as stating above were intentional and/or done with absolute reckless disregard of its consequences. 53. Due to the actions of Dr. Fishman, Ms. Edwards was terrorized and has suffered and will continue to suffer severe emotional distress. AS AND FOR THE SECOND CAUSE OF ACTION AS AGAINST DEFENDANTS DR. FISHMAN AND WESTMED (Negligent Infliction of Emotional Distress) 54. Plaintiff repeats and re-alleges each and every allegation set forth in paragraphs “1” through “53” of this complaint with the same force and effect as if fully set forth herein. 55. During the second operation, defendants Dr. Fishman and Westmed owed a duty of care to Ms. Edwards. 56. During the second operation, defendants Dr. Fishman and Westmed breached the duty of care to Ms. Edwards. 57. During the second operation, such breach unreasonably endangered Ms. Edwards’ physical safety and/or caused Ms. Edwards to fear for her physical safety. 58. The actions of defendants Dr. Fishman and Westmed during the second operation on Ms. Edwards was outrageous in character. 59. The actions of defendants Dr. Fishman and Westmed during the 11 11 of 13 FILED: WESTCHESTER COUNTY CLERK 12/04/2017 01:27 PM NYSCEF DOC. NO. 1 INDEX NO. 69860/2017 RECEIVED NYSCEF: 12/04/2017 second operation on Ms. Edwards was so extreme in degree as to go beyond all possible bounds of decency. 60. The actions of defendants Dr. Fishman and Westmed during the second operation on Ms. Edwards was atrocious. 61. The defendants Dr. Fishman and Westmed during the second operation on Ms. Edwards was utterly intolerable in a civilized community. 62. The actions of defendants Dr. Fishman and Westmed as stated above was careless and/or negligent. 63. Due to the actions of defendants Dr. Fishman and Westmed, Ms. Edwards was terrorized and has suffered and will continue to suffer severe emotional distress. WHEREFORE, plaintiff demands judgment as follows: 1. On the first cause of action, an amount to be determined by this Court, but in excess of the jurisdictional limits of all inferior Courts; 2. On the second cause of action, an amount to be determined by this Court, but in excess of the jurisdictional limits of all inferior Courts; 3. Exemplary damages; 4. Costs and disbursements of this action; and 5. For such other, further and different relief this Court deems just. Dated: White Plains, New York December 4, 2017 12 12 of 13 FILED: WESTCHESTER COUNTY CLERK 12/04/2017 01:27 PM NYSCEF DOC. NO. 1 INDEX NO. 69860/2017 RECEIVED NYSCEF: 12/04/2017 BAKER, LESHKO, SALINE & DRAPEAU, LLP Attorneys for Plaintiff By: ___________________________________ Mitchell J. Baker One North Lexington Avenue White Plains, New York 10601-1712 914.681.9500 13 13 of 13