| Barila v Comprehensive Pain Care of Long Is. |
| 2007 NY Slip Op 07807 [44 AD3d 806] |
| October 16, 2007 |
| Appellate Division, Second Department |
| Gabriel Barila et al., Appellants, v Comprehensive PainCare of Long Island et al., Respondents. |
—[*1] Law Offices of Charles X. Connick, PLLC, Mineola, N.Y. (Barbara A. Myers of counsel),for respondents.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal,as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Doyle,J.), dated January 12, 2006, as granted those branches of the defendants' motion which were forsummary judgment dismissing the causes of action alleging medical malpractice and loss ofconsortium.
Ordered that the order is affirmed insofar as appealed from, with costs.
"To establish a prima facie case of liability in a medical malpractice action, a plaintiff mustprove (1) the standard of care in the locality where the treatment occurred, (2) that the defendantbreached that standard of care, and (3) that the breach of the standard was the proximate cause ofinjury" (Berger v Becker, 272 AD2d 565 [2000]; see Alvarez v Prospect Hosp.,68 NY2d 320 [1986]). "Expert testimony is necessary to prove a deviation from acceptedstandards of medical care and to establish proximate cause unless the matter is one which iswithin the experience and observation of the ordinary juror" (Lyons v McCauley, 252AD2d 516, 517 [1998], citing Koehler v Schwartz, 48 NY2d 807 [1979]).
Here, the plaintiff Gabriel Barila (hereinafter the plaintiff) alleged that he experiencedparalysis in his left foot as a result of the defendants' malpractice in performing a lumbar facetjoint [*2]block procedure on April 2, 2001. The purpose of theprocedure was to relieve pain that the plaintiff had been experiencing in his lower back, radiatingdown through his left foot. The procedure consisted of four injections, each administered at fourdifferent points along the plaintiff's lower left spine.
The defendants established their prima facie entitlement to judgment as a matter of law bysubmitting the affirmation of an expert, who stated that if the injections had indeed caused theplaintiff's injury, then the plaintiff would have experienced symptoms immediately following theprocedure, and would have experienced muscle atrophy in his left foot well within six months,neither of which occurred here.
The affirmation of the plaintiffs' expert, submitted in opposition, failed to contradict thedefendants' expert on these issues. Moreover, the plaintiffs' expert's affirmation was conclusory,and therefore insufficient to raise a triable issue of fact (see Keevan v Rifkin, 41 AD3d 661, 662 [2007]; Gargiulo v Geiss, 40 AD3d 811,812 [2007]). Therefore, the Supreme Court properly granted those branches of the defendants'motion which were for summary judgment dismissing the causes of action alleging medicalmalpractice and loss of consortium. Miller, J.P., Skelos, Covello and McCarthy, JJ., concur.