The opinion of the court was delivered by: Barry, District Judge.
This matter comes before the court upon the motion for summary
judgment of defendants Medemerge, P.A. ("Medemerge") and John
Pilla, M.D. ("Dr.Pilla"), Kent Ellis, M.D. ("Dr.Ellis"), and
Carol Sgambelluri, M.D. ("Dr.Sgambelluri")*fn1 (collectively as
"the doctor defendants").*fn2 This court having reviewed the
submissions of the parties without oral argument pursuant to
Fed.R.Civ.P. 78, and for the reasons discussed below, defendants'
motion for summary judgment will be granted.
On November 10, 1993, plaintiff sought treatment at Medemerge,
her primary care center, after experiencing increasing back pain
for several days. See Lang Cert.,*fn3 Exh. A-1. A CT Scan of
plaintiff's lower back was performed on November 29, 1993,
revealing: a neurostimulator, implanted during a previous
surgery; disc degeneration; and a "large extra-dural defect . . .
compressing the thecal sac" consistent with disc herniation.
See Exh. B.
Plaintiff was evaluated on December 3, 1993 by Dr. Alan J.
Sarokhan ("Dr.Sarokhan") based on a referral from Dr. Ellis of
Medemerge. See Exh. C. Dr. Sarokhan noted in his report that
plaintiff's was "an extremely complicated case" that "really
falls outside of my range of expertise and probably out of the
range of expertise of most of the surgeons in this area." Id.
at 2. He observed that plaintiff has "had five prior back
surgeries, [and] has a lot of scarring in an implanted nerve
stimulator." Id. Furthermore, Dr. Sarokhan noted that plaintiff
"certainly needs a neurosurgical evaluation and needs one
promptly" and stated that Dr. Pilla, also of Medemerge, with whom
he had been in contact, "was kind enough to arrange it." Id.
Because Dr. Barolat was an "out of network" physician,*fn4 on
December 15, 1993, Medemerge sought — and received — approval
from U.S. Healthcare for the referral. See Exh. A-2. On January
19, 1994, Dr. Barolat evaluated plaintiff and concluded that she
was in "excruciating pain" and had a "definite lesion . . . that
has to be removed." Exh. E. He stated that:
the following things would be required for us to take
care of this lady:
1. Surgical intervention by me with a re-do
laminectomy and removal of large disc herniation.
2. Spinal instrumentation and fusion by a separate
3. Pulmonary clearance by Dr. Cohen who is our
pulmonary specialist who would also be following
her during the hospital stay in case of problems.
4. Consultation with the Pain Service for pre and
postop pain management.
5. Possible psychological assessment and follow-up
during the hospital stay to cope with her emotional
Exh. E at 2. Dr. Barolat elaborated on the complexities of the
potential surgery, the "very large doses of narcotics" plaintiff