| DeLorenzo v St. Clare's Hosp. of Schenectady, N.Y. |
| 2010 NY Slip Op 00433 [69 AD3d 1177] |
| January 21, 2010 |
| Appellate Division, Third Department |
| Jane DeLorenzo, Appellant, v St. Clare's Hospital of Schenectady,N.Y., Respondent. |
—[*1] Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Adam H. Cooper ofcounsel), for respondent.
Kavanagh, J. Appeal from that part of an order of the Supreme Court (Reilly, Jr., J.), enteredFebruary 3, 2009 in Schenectady County, which granted defendant's motion for summaryjudgment dismissing the complaint.
On October 14, 2004, plaintiff was treated in defendant's emergency room for dog bites thatshe had sustained on her wrist and thigh. After the injuries were cleaned and stitched, antibioticswere applied and the wounds were wrapped with a sterile dressing. Plaintiff was prescribedcertain medications, including oral antibiotics, and later discharged from the hospital withinstructions on how she should care for her wounds. The next day, plaintiff returned to theemergency room complaining of increased pain in the area of the wound to her wrist, and a redline indicating the presence of an infection was noted extending down the length of her arm. As aresult, plaintiff was admitted to the hospital and surgery was performed to remove an abscessthat had formed on the site of one of her wounds.
Plaintiff, thereafter, commenced this medical malpractice action claiming that defendant wasnegligent in the treatment it provided in the emergency room and in the instructions given to herin regard to the care of her injuries upon her discharge.[FN*]After filing a note of issue and declaring that discovery was complete, defendant moved forsummary judgment dismissing the complaint. Plaintiff, in turn, alleged that defendant had failedto comply with Supreme Court's discovery order and sought an order striking defendant'sanswer. Supreme Court denied plaintiff's motion to strike defendant's answer and granteddefendant's motion for summary judgment dismissing the complaint. Plaintiff now appeals,claiming that defendant's motion for summary judgment should have been denied becausequestions of fact exist as to whether defendant was negligent in the treatment it provided her inthe emergency room and in the quality of the instructions it gave her upon her discharge. Wedisagree and affirm Supreme Court's order granting summary judgment dismissing plaintiff'scomplaint.
In support of its position that it was not negligent, defendant presented testimony of thenurse who treated plaintiff in the emergency room after her wounds had been stitched andclosed. The nurse, Dana Brizee, testified that after applying antibiotic cream to the site of thewounds, she dressed them and gave plaintiff a prescription for medications, which included anoral antibiotic. The nurse also testified, and plaintiff confirmed, that before plaintiff left theemergency room, she was given detailed instructions on how to properly care for her wounds.Defendant also offered an affidavit from Orion J. Colfer, a board-certified physician specializingin emergency room medicine. Colfer stated that the use of bacitracin and the medicationsprescribed in the emergency room were appropriate, and that the discharge instructions givenplaintiff fully complied with all applicable medical standards. He further explained that theinfection noted in plaintiff's wound upon her return to the hospital was a common risk attendantto dog bites and could occur even if the patient had received appropriate medical care when herwounds were initially treated. Defendant's submissions were sufficient to show that it was notnegligent in the manner in which it treated plaintiff, shifting the burden to plaintiff to show "'through competent expert medical opinion evidence, both a deviation from the acceptedstandard of care and that the departure was a proximate cause of [plaintiff's injuries]' " (Daugharty v Marshall, 60 AD3d1219, 1221 [2009], quoting Bell vEllis Hosp., 50 AD3d 1240, 1241 [2008]; see Hoffman v Pelletier, 6 AD3d 889, 890 [2004]; Gage v Dutkewych, 3 AD3d 629,630 [2004]).
In response, plaintiff offered an affidavit of her attorney who, in addition to claiming thatdiscovery had not yet been completed, argued that defendant's motion for summary judgmentshould have been denied because questions of fact exist as to whether the quality of careprovided plaintiff in the emergency room and the instructions given her upon her dischargecomplied with the applicable standards of care. Initially, we note that plaintiff has failed to offerany competent medical evidence to support her claims of medical malpractice and, in particular,has not presented any expert testimony that the care rendered by defendant departed from theaccepted standards of medical practice (see Snyder v Simon, 49 AD3d 954, 956 [2008]; Passero v Puleo, 17 AD3d 953,954 [2005]; Chase v Cayuga Med. Ctr.at Ithaca, 2 AD3d 990, 990-991 [2003]; Schuller v Martinelli, 304 AD2d 967,968 [2003], lv denied 100 NY2d 509 [2003]). In that regard, "[g]eneral allegations ofmedical malpractice, merely conclusory and unsupported by competent evidence tending toestablish the essential elements of medical malpractice, are insufficient to defeat [a] defendant['s]. . . summary judgment motion" (Alvarez v Prospect Hosp., 68 NY2d 320,325 [1986]; see Chase v Cayuga Med. Ctr. at Ithaca, 2 AD3d at 990-991; Grzelecki v Sipperly, 2 AD3d939, 941 [2003]).
As for plaintiff's complaint that she never signed the form setting forth the instructions sheshould follow in caring for her wounds upon being discharged, the fact is that plaintiffacknowledged during her deposition that she had read these instructions and believed that sheunderstood them. The mere absence of her signature from this form, given this acknowledgment,does not serve to create a question of fact regarding the adequacy of these instructions and doesnot, by itself, require denial of defendant's motion for summary judgment.
Plaintiff also claims that defendant failed to take an appropriate medical history from herwhen she presented at the emergency room and, as a result, she was prescribed medication towhich she was allergic. However, it was plaintiff's treating physician—and not a memberof defendant's staff—who issued the prescription in question. Moreover, expert testimonywas presented that the symptoms plaintiff experienced could well have been a normal reaction tosuch medication. Furthermore, when plaintiff was subsequently admitted to the hospital with herinfection, she stated that she had no known allergies and no medical evidence has been presentedcertifying that she is, in fact, allergic to the medications or that she knew, while being treated inthe emergency room, that she or any member of her family were afflicted with such an allergy.Therefore, even a more detailed inquiry of plaintiff regarding her medical history would not haverevealed that she was allergic to any of the prescribed medications.
Finally, in response to plaintiff's claim that summary judgment was premature becausediscovery had not been completed (see CPLR 3212 [f]), we note that, as limited by hernotice of appeal, plaintiff did not appeal Supreme Court's order denying her motion to strikedefendant's answer. As a result, she has waived her right to appeal that part of the same orderthat addressed the status of pretrial discovery and its effect on defendant's motion for summaryjudgment (see Brodeur v Hayes, 18AD3d 979, 981 [2005]; Dellith v Oneonta City School Dist., 280 AD2d 864, 865[2001]; Clifford R. Gray, Inc. v City School Dist. of Albany, 277 AD2d 843, 846-847[2000]). In any event, plaintiff has failed to identify any evidence that might have beendeveloped if additional discovery had been conducted that would have served to bar SupremeCourt's order granting defendant's motion for summary judgment dismissing the complaint(see CPLR 3212 [f]; ZinterHandling, Inc. v Britton, 46 AD3d 998, 1001 [2007]; Ahigian v Davis, 6 AD3d 956,957 [2004]; Ramesar v State of New York, 224 AD2d 757, 759 [1996]).
Plaintiff's remaining contentions have been reviewed and found to be lacking in merit.
Spain, J.P., Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: The supplemental complaintnamed as defendants Andrea Carrasco, plaintiff's treating physician who admitted her to thehospital, and Provident Emergency Medicine Associates, P.C., Carrasco's employer. However,as a result of a stipulation of discontinuance and an order of Supreme Court, neither Carrasco norProvident continue to be parties to this action.