| Selmensberger v Kaleida Health |
| 2007 NY Slip Op 09263 [45 AD3d 1435] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| Cynthia Selmensberger, as Executor of Clara F. Badzinski,Deceased, Respondent, v Kaleida Health et al., Appellants, et al.,Defendant. |
—[*1] Damon & Morey LLP, Buffalo (Brian A. Birenbach of counsel), for defendant-appellantJames Corasanti, M.D. Brown & Tarantino, LLC, Buffalo (Nicole Schreib Mayer of counsel), fordefendant-appellant Thomas Z. Lajos, M.D. The Kammholz Law Firm, Rochester (Bradley P. Kammholz of counsel), forplaintiff-respondent.
Appeals from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered July24, 2006 in a medical malpractice action. The order denied the motion of defendants JamesCorasanti, M.D. and Thomas Z. Lajos, M.D. for summary judgment dismissing the complaintagainst them and denied the motion of defendant Kaleida Health for summary judgmentdismissing the complaint and cross claim against it.
It is hereby ordered that the order so appealed from be and the same hereby is modified onthe law by granting the motion of defendant Kaleida Health and dismissing the complaint andcross claim against it and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for the alleged medicalmalpractice of defendants in their diagnosis and treatment of plaintiff's decedent, who sufferedfrom a perforation of her esophagus, a condition that led to her death nine days after she had beenhospitalized with complaints of epigastric pain. We conclude that Supreme Court properlydenied the motion of defendants James Corasanti, M.D. and Thomas Z. Lajos, M.D. (physicians)for summary judgment dismissing the complaint against them. The deposition testimony andaffidavits submitted by the physicians in support of their motion "established that they exerciseddue care in treating plaintiff's decedent" and that their care and treatment was not a cause ofdecedent's death (Moticik v SistersHealthcare, 19 AD3d 1052, 1052-1053 [2005]; see generally Nestorowich vRicotta, 97 NY2d 393, 398 [2002]), and the physicians thus established their entitlement tojudgment as a matter of law (see Lifshitz v Beth Israel Med. Ctr.-Kings Highway Div., 7AD3d [*2]759, 760 [2004]; see generally Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]). Nevertheless, plaintiff raised triable issues of factconcerning the physicians' alleged medical malpractice and causation (see Anderson vLamaute, 306 AD2d 232, 233-234 [2003]; see also Kless v Paul T.S. Lee, M.D., P.C., 19 AD3d 1083, 1084[2005]). Plaintiff submitted the redacted affidavit of an expert witness, who averred that thephysicians failed "promptly and accurately" to diagnose decedent's condition and, uponeventually doing so, failed to "pursue a coherent plan of treatment." The expert detailedinadequacies in the procedures employed by the physicians and deviations from the standard ofcare and opined that such negligence caused or contributed to decedent's death. "The motionpapers presented a credibility battle between the parties' experts, and issues of credibility areproperly left to a jury for its resolution" (Barbuto v Winthrop Univ. Hosp., 305 AD2d623, 624 [2003]; see Allen v GeneralElec. Co., 32 AD3d 1163, 1166 [2006]).
We conclude, however, that the court erred in denying the motion of defendant KaleidaHealth (hospital) for summary judgment dismissing the complaint and cross claim against it, andwe therefore modify the order accordingly. The hospital met its initial burden, and plaintiff failedto raise a triable issue of fact (see generally Zuckerman, 49 NY2d at 562). In particular,the redacted affidavit of plaintiff's medical expert fails to state in detail how the actions ofhospital staff deviated from the standard of care or proximately caused decedent's injury anddeath (see Moticik, 19 AD3d at 1053; see also Thompson v Orner, 36 AD3d 791, 792 [2007]), and it iswell established that, "[w]here the expert's ultimate assertions are speculative or unsupported byany evidentiary foundation . . . , the opinion should be given no probative force"(Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). We thus conclude thatthe affidavit of plaintiff's medical expert " 'is insufficient to raise . . . a triablefactual issue concerning medical malpractice' " with respect to the hospital (Moticik, 19AD3d at 1053).
All concur except Scudder, P.J., and Peradotto, J., who dissent in part and vote to reverse inaccordance with the following memorandum.
Scudder, P.J., and Peradotto, J. (dissenting). We respectfully dissent in part. We agree withthe majority that Supreme Court erred in denying the motion of defendant Kaleida Health(hospital) seeking summary judgment dismissing the complaint and cross claim against it. In ourview, however, the court also erred in denying the motion of defendants James Corasanti, M.D.and Thomas Z. Lajos, M.D. (physicians) seeking summary judgment dismissing the complaintagainst them because we cannot agree with the majority that the affidavit of plaintiff's expertraised an issue of fact sufficient to defeat that motion. We therefore would reverse the order,grant the motion of the hospital, dismiss the complaint and cross claim against it and grant themotion of the physicians and dismiss the complaint against them.
Although the majority writes that plaintiff's "expert detailed inadequacies in the proceduresemployed by the physicians and deviations from the standard of care," in our view the expert setforth only "ultimate assertions [that] are speculative or unsupported by any evidentiaryfoundation, [and thus the expert's] opinion should be given no probative force" (Diaz v NewYork Downtown Hosp., 99 NY2d 542, 544 [2002]). The record establishes that the primarycause of the death of plaintiff's decedent was sepsis as a consequence of esophageal perforation,and it is undisputed that the sepsis had developed prior to any treatment by the physicians.Plaintiff's expert failed to identify any vital signs, test results, clinical findings or other competentevidence to support the expert's opinion that the physicians deviated from accepted standards ofcare and worsened decedent's already grave and deteriorating condition.
With respect to Dr. Corasanti, plaintiff's expert opined that his performance of an endoscopyand placement of a PEG tube was a "departure from accepted medical practice" because theprocedure "caused more contamination of an already compromised esophagus . . .and caused a further delay in the surgical treatment." The expert further opined that "theendoscopic procedure was a substantial factor" in causing decedent's death. We note, however,[*3]that the expert failed to explain how the insertion of the tubecould, or did, contaminate the esophagus or cause respiratory failure. Indeed, the expert failed toestablish any causal nexus between the alleged malpractice of Dr. Corasanti and decedent'sinjuries and death. It is undisputed that decedent developed pulmonary and circulatory collapseas a consequence of sepsis before the endoscopy procedure was performed by Dr. Corasanti, andplaintiff's expert admitted that if sepsis develops and is "left undetected the sepsis progresseswith pulmonary and circulatory collapse and death occurring within hours to days."
With respect to Dr. Lajos, it is undisputed that plaintiff had been diagnosed with anesophageal perforation and had developed sepsis by the time Dr. Lajos became involved in hercare. Plaintiff's expert averred that the failure of Dr. Lajos to perform surgery for 1½ dayswas a "departure from accepted practice" and was a "substantial factor" in causing decedent'sdeath. Notably, however, plaintiff's expert failed to state why the failure to perform surgerysooner was a departure from accepted practice or why the alleged departure was a proximatecause of decedent's injury and death (seeMoticik v Sisters Healthcare, 19 AD3d 1052, 1053 [2005]; see also Thompson v Orner, 36 AD3d791, 792 [2007]).
We thus conclude that the affidavit of plaintiff's expert is " 'conclusory in nature. . . and thus is insufficient to raise the existence of a triable factual issueconcerning medical malpractice' " with respect to the physicians (Moticik, 19 AD3d at1053). Present—Scudder, P.J., Gorski, Centra, Lunn and Peradotto, JJ.