| Shahid v New York City Health & Hosps. Corp. |
| 2008 NY Slip Op 00484 [47 AD3d 800] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Maryum Shahid, Respondent, v New York City Health &Hospitals Corporation, Defendant, and Bum Y. Park, Appellant. |
—[*1] Morrison & Wagner, New York, N.Y. (Eric Morrison of counsel), for respondent.
In an action to recover damages for medical malpractice, the defendant Bum Y. Park appealsfrom an order of the Supreme Court, Queens County (Elliot, J.), dated May 4, 2006, whichdenied his motion for summary judgment dismissing the complaint insofar as asserted againsthim.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantBum Y. Park for summary judgment dismissing the complaint insofar as asserted against him isgranted.
On November 11, 1999 the 26-month-old plaintiff was seen by the defendant doctor Bum Y.Park, who diagnosed viral tonsillitis and prescribed medications to alleviate her symptoms. Laterthat day, the plaintiff developed additional symptoms and was admitted to Elmhurst HospitalCenter (hereinafter Elmhurst) on November 12, 1999. The admitting diagnosis was pneumoniabased upon a chest X-ray and blood test. During the plaintiff's 13-day hospital stay, variousantibiotic treatments were administered. Shortly after the plaintiff's discharge from the hospitalon November 24, 1999 her mother noticed that the plaintiff did not respond to speech and sound,indicating hearing loss, which was ultimately determined to be complete and permanent.
In 2002 the plaintiff, by her mother, commenced the instant action against the defendant NewYork City Health & Hospitals Corporation, alleging negligent failure to diagnose and treatmeningitis, causing the plaintiff's permanent hearing loss. In 2005, after Park was deposed as a[*2]nonparty witness, the plaintiff filed an amended complaintadding him as a defendant and alleging that he negligently failed to test for meningitis during theplaintiff's office visit on November 11, 1999. The Supreme Court denied Park's motion forsummary judgment dismissing the complaint insofar as asserted against him, holding thatconflicting expert medical opinion evidence raised a triable issue of fact. We reverse.
On a motion for summary judgment in a medical malpractice action, a defendant doctor hasthe burden of establishing the absence of any departure from good and accepted medical practice,or that the plaintiff was not injured thereby (see Rebozo v Wilen, 41 AD3d 457, 458 [2007]; Thompson v Orner, 36 AD3d 791,791-792 [2007]; Williams v Sahay,12 AD3d 366, 368 [2004]). Here, Park established his prima facie entitlement to judgmentas a matter of law by submitting the affidavit of a medical expert who opined, to a reasonabledegree of medical certainty, that Park's examination and treatment of the plaintiff on November11, 1999 did not depart from accepted standards of medical practice and that the plaintiff'shearing loss was not causally related to treatments rendered by Park.
Once Park made this prima facie showing, the burden shifted to the plaintiff to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). A physician'saffidavit in opposition to a motion for summary judgment must attest to the defendant's departurefrom accepted practice, which departure was a competent producing cause of the injury (seeRebozo v Wilen, 41 AD3d at 458, Domaradzki v Glen Cove Ob/Gyn Assoc., 242AD2d 282 [1997]). General and conclusory allegations unsupported by competent evidence areinsufficient to defeat a motion for summary judgment (see Alvarez v Prospect Hosp., 68NY2d at 325; Thompson v Orner, 36 AD3d at 792; DiMitri v Monsouri, 302AD2d 420, 421 [2003]).
Here, the plaintiff's expert opined that, had Park conducted a proper examination in his officeon November 11, 1999 he would have detected more definitive symptoms of meningitis whichwould have required immediate transfer of the plaintiff to the hospital for a spinal tap, whichwould have resulted in a firm diagnosis of meningitis and timely antibiotic therapy to salvage theplaintiff's hearing. The expert's opinion was based upon a string of assumptions not supported byfacts in the record and thus did not raise a triable issue of fact as to whether Park's examinationand treatment of the plaintiff was a competent producing cause of her injuries (see Thompsonv Orner, 36 AD3d at 792). Accordingly, Park's motion for summary judgment dismissing thecomplaint insofar as asserted against him should have been granted. Skelos, J.P., Santucci,Lifson and Carni, JJ., concur.