| Maki v Bassett Healthcare |
| 2011 NY Slip Op 04799 [85 AD3d 1366] |
| June 9, 2011 |
| Appellate Division, Third Department |
| Frank D. Maki, Appellant, v Bassett Healthcare et al.,Respondents. |
—[*1] Napierski, Vandenburgh & Napierski, Albany (Shawn T. Nash of counsel), forrespondents.
Spain, J. Appeals (1) from an order of the Supreme Court (Peckham, J.), entered November18, 2010 in Delaware County, which, among other things, granted defendants' cross motion forsummary judgment dismissing the complaint, and (2) from an order of said court, enteredNovember 18, 2010 in Delaware County, which denied plaintiff's motion for, among otherthings, recusal.
Plaintiff commenced this action, pro se, alleging a variety of negligence-based andintentional torts stemming from medical treatment rendered by defendants following a 2008motor vehicle accident. After Supreme Court granted defendants' cross motion for summaryjudgment, plaintiff moved to resettle Supreme Court's order and requested that the judge recusehimself. Supreme Court denied that motion. Plaintiff now appeals both from the order dismissingthe complaint and the order denying his motion.[FN1][*2]
We affirm. Plaintiff's first argument is that SupremeCourt improperly characterized this action as sounding in medical malpractice and, accordingly,that its subsequent analysis granting summary judgment to defendants was flawed. In hiscomplaint, plaintiff alleged "medical negligence," specifically stating that defendants failed to"apply [their] knowledge, use reasonable care in the exercise of [their] skill, or use [their] bestjudgment while examining and treating" plaintiff, resulting in injuries arising from their failure totimely diagnose and properly treat him. "Conduct may be deemed malpractice, rather thannegligence, when it 'constitutes medical treatment or bears a substantial relationship to therendition of medical treatment by a licensed physician' " (Scott v Uljanov, 74 NY2d 673,674-675 [1989], quoting Bleiler v Bodnar, 65 NY2d 65, 72 [1985]). Indeed, "medicalmalpractice is simply a form of negligence [and] no rigid analytical line separates the two"(Scott v Uljanov, 74 NY2d at 674). Given that the negligence alleged here relates entirelyto the professional skill and judgment rendered by doctors, rather than information within thecommon knowledge of a layperson, we hold that Supreme Court properly treated it as a medicalmalpractice action (see id. at 674-675; Lomonaco v United Health Servs. Hosps., Inc., 16 AD3d 958,960-961 [2005]; cf. Hilts v Board ofEduc. of Gloversville Enlarged School Dist., 50 AD3d 1419, 1419-1420 [2008]).
Further, we agree that defendants were entitled to summary judgment on the malpracticeclaim. Plaintiff's accident occurred in Tennessee, where he was hospitalized and initiallydiagnosed with thrombosis of the portal vein,[FN2]evidence of a cyst on his right cerebellopontine angle[FN3]and a possible fracture of the right ankle. He was prescribed Coumadin—ananticoagulant—for the thrombosis, instructed to contact his primary care physician inseven days, and discharged. Thereafter, upon his return to New York, plaintiff was treated bydefendant Shannon Conrad, a physician, who continued him on Coumadin and referred him todefendant James Leonardo, a physician specializing in hematology. In May 2009, Coumadintreatment was terminated and both physicians cleared plaintiff to return to work. Plaintiff wasadvised that the thrombosis had likely resolved as much as it ever would. At the relevant time,Conrad and Leonardo were employed by defendant Bassett Healthcare in Delaware County.[*3]
Thereafter, plaintiff began to seek work but, whileworking on a rock wall at home prior to securing a job, he experienced severe back pain. Plaintiffthen visited Michael Freeman, another physician who ordered a CT scan that showed portalhypertension with splenomegaly[FN4]and significant spinal disc degeneration. Freeman recommended physical therapy which,according to plaintiff, has made a marked improvement in his condition. Plaintiff asserts that haddefendants properly diagnosed him and prescribed physical therapy rather than releasing him towork, he would have had less pain and suffering and been able to return to work sooner.
As the proponents of summary judgment, defendants had the initial burden to demonstratethat they were not negligent, i.e., that the medical treatment they rendered to plaintiff was withinacceptable standards of care or that their actions did not cause the asserted injuries (see Hickey v Arnot-Ogden Med. Ctr.,79 AD3d 1400, 1401-1402 [2010]; DeLorenzo v St. Clare's Hosp. of Schenectady, N.Y., 69 AD3d1177, 1179 [2010]). Defendants submitted sworn affirmations by Conrad and Leonardodescribing their treatment of plaintiff and stating that they did not deviate from the appropriatestandard of care. Specifically, with respect to his traumatic portal vein thrombosis, Leonardoopined that the six-month regimen of Coumadin prescribed for plaintiff was appropriate.Conrad's affirmation addresses plaintiff's assertion that she failed to identify fractures in hisspine, stating that plaintiff's intervertebral disk degeneration was indicative of a long-termcondition not associated with his accident and that, given plaintiff's single complaint of minorlower back pain, more aggressive treatment was inappropriate. Further, the CT scan of plaintiff'slower back taken in Tennessee revealed evidence of "some old compression fractures" but"without definite acute fracture." In addition, Conrad referred plaintiff to a neurosurgeon whoconcluded that the cerebellopontine angle cyst was congenital and therefore required no furtheraction. Finally, Conrad opined that no treatment was necessary with regard to plaintiff's potentialankle fracture as he was not experiencing any discomfort. Based on this evidence, we agree withSupreme Court that defendants met their burden to show that no negligence on their part causedplaintiff's alleged injuries (see DeLorenzo v St. Clare's Hosp. of Schenectady, N.Y., 69AD3d at 1178-1179; Suib v Keller,6 AD3d 805, 806 [2004]; Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916, 917[2000], lv denied 95 NY2d 751 [2000]; Stuart v Ellis Hosp., 198 AD2d 559, 560[1993]).
The burden thus shifted to plaintiff "to show, by competent medical proof, that a deviationfrom the accepted standard of care occurred and that a causal nexus existed between thedeviation and [his or] her injuries" (Plourd v Sidoti, 69 AD3d 1038, 1039 [2010]). Plaintiff's onlymedical proof in opposition is an unsworn letter written by Freeman, in which he states that theCT scan of plaintiff revealed portal hypertension with splenomegaly and severe discdegeneration. Significantly, the letter says nothing regarding the applicable standard of care fordiagnosing or treating these conditions, and offers no opinion as to whether any departure fromthe appropriate standard occurred in plaintiff's case. In addition, because the unsworn letter hasno probative value, plaintiff's submission cannot overcome defendants' entitlement to summary[*4]judgment (see Lentini v Page, 5 AD3d 914, 916 [2004]; Parmisani vGrasso, 218 AD2d 870, 872 [1995]). Indeed, plaintiff has not pleaded facts that woulddemonstrate any definitive deficiencies in the diagnoses or treatments proffered by defendants.Contrary to his assertions, we find no record evidence of undiagnosed spinal fracturesattributable to his motor vehicle accident. Accordingly, summary judgment was properlyawarded to defendants on the malpractice claim (see Rivera v Kleinman, 16 NY3d 757, 759 [2011]; Caulkins v Vicinanzo, 71 AD3d1224, 1226-1227 [2010]; DeLorenzo v St. Clare's Hosp. of Schenectady, N.Y., 69AD3d at 1179; Stuart v Ellis Hosp., 198 AD2d at 560-561).[FN5]
Likewise, summary judgment was properly granted on plaintiff's fraud claim. "The elementsof a cause of action for fraud require a material misrepresentation of a fact, knowledge of itsfalsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages" (Eurycleia Partners, LP v Seward & Kissel,LLP, 12 NY3d 553, 559 [2009] [citations omitted]). A plaintiff claiming fraud mustplead "the circumstances constituting the wrong . . . in detail" (CPLR 3016 [b]) andthe fraud damages must be distinct from the malpractice damages (see Saint Alexander'sChurch v McKenna, 294 AD2d 695, 696 [2002]). Here, the misrepresentations alleged byplaintiff all concern alleged omissions or statements given by defendants to plaintiff in their roleas his treating physicians and plaintiff has not alleged injuries separate from those alleged insupport of his malpractice claim. Under these circumstances, plaintiff has not stated anindependent cause of action for fraud (see CPLR 3016 [b]; Cellupica v Bruce, 48 AD3d 1020,1021-1022 [2008]). Likewise, plaintiff's assertion that defendants were conspiring to defraud himis entirely premised on the unsupported speculation that they were cooperatively negligent in thecare provided to him.[FN6]
Finally, plaintiff argues that the trial judge erred in declining to recuse himself fromplaintiff's case. Absent a ground for mandatory disqualification under Judiciary Law § 14,which plaintiff does not allege, a decision regarding recusal is left to the judge's discretion (see Mokay v Mokay, 67 AD3d1210, 1213 [2009]). We discern no abuse of discretion here where the allegedly improperlegal rulings issued by Supreme Court that plaintiff relies upon were not, in fact, erroneous and,in any event, do not call into question the judge's ability to be impartial (see Mokay vMokay, 67 AD3d at 1213; Matter ofAlbany County Dept. of Social Servs. v Rossi, 62 AD3d 1049, 1050 [2009]).
Peters, J.P., McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: Although plaintiff's notice ofappeal is from Supreme Court's September 30, 2010 decision, rather than the subsequent orderentered November 18, 2010, in the interest of justice we will treat the premature appeal to betaken from the subsequent, appealable order (see CPLR 5520 [c]; O'Brien v O'Brien, 16 AD3d 1015,1016 n 2 [2005]). Likewise, plaintiff's appeal from the separate paper titled "decision," alsoentered November 18, 2010, that "ordered" that plaintiff's motion for disqualification was denied,will be treated as an appeal from an order (see CPLR 5512 [a]; Hammerstein v Henry Mtn. Corp., 11AD3d 836, 837-838 [2004]). To the extent that plaintiff seeks to appeal that portion of theorder that denied his motion to resettle the decision, that ruling is not appealable (see Matter of Biasutto v Biasutto, 75AD3d 671, 672 [2010]; see also CPLR 5517 [a] [2]).
Footnote 2: Thrombosis is the presence of ablood clot within the vascular system which can obstruct the flow of blood through the body; theportal vein conveys blood into the liver (see Taber's Cyclopedic Medical Dictionary1711-1712, 2185 [19th ed 2001]).
Footnote 3: The cerebellopontine angle isthe angle formed by the junction of the cerebellum, at the back of the brain, and the pons, in thebrainstem (see Taber's Cyclopedic Medical Dictionary 122, 283-286, 378-379 [19th ed2001]).
Footnote 4: Portal hypertension is an"[i]ncreased pressure in the portal vein caused by an obstruction of the flow of blood through theliver" (Taber's Cyclopedic Medical Dictionary 1033 [19th ed 2001]). Splenomegaly is anenlargement of the spleen that may be caused by portal hypertension and "may cause a sense ofdiscomfort in the left upper quadrant of the abdomen" (Taber's Cyclopedic Medical Dictionary2030 [19th ed 2001]).
Footnote 5: Given that plaintiff has notshown that Conrad or Leonardo were negligent nor any alleged independent action of the hospitalsubjecting it to liability, the complaint was also properly dismissed as against Bassett Healthcare(see Machac v Anderson, 261 AD2d 811, 813 [1999]).
Footnote 6: On appeal, plaintiff does notcontest the dismissal of his claims for intentional interference with a contractual relationship andintentional infliction of emotional distress. As such, any challenge to the dismissal of theseclaims has been abandoned (see Matterof Lake Grove Entertainment, LLC v Megna, 81 AD3d 1191, 1192 n [2011]; Costa v Callahan, 41 AD3d 1111,1117 [2007]).