| Rosenman v Shrestha |
| 2008 NY Slip Op 01737 [48 AD3d 781] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Joseph Rosenman, Respondent, v Sharavan Shrestha et al.,Defendants, and Ravi Loona et al., Appellants. |
—[*1] Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro,Jr., and Gina Bernardi DiFolco of counsel), for appellant Samuel Bernard Fineman. Schiavetti, Corgan, DiEdwards & Nicholson, LLP, New York, N.Y. (Angela M. Ribaudo andSamantha E. Quinn of counsel), for appellant Charles H. Bagley. Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell and Tracey A.Reiser-Pertoso of counsel), for appellant Flushing Hospital and Medical Center. Duffy, Duffy & Burdo, Uniondale, N.Y. (James N. LiCalzi of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice, the defendants RaviLoona and Ravi Loona, M.D., P.C., appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Queens County (Hart, J.), entered October 4, 2006, as denied their motion forsummary judgment dismissing the complaint insofar as asserted against them, the defendantSamuel Bernard Fineman separately appeals, as limited by his brief, from so much of the sameorder as denied his motion for summary judgment dismissing the complaint insofar as assertedagainst him, the defendant Charles H. Bagley separately appeals, as limited by his brief, from somuch of the same order as denied that branch of his motion which was for summary judgmentdismissing the complaint insofar as asserted against him, and the defendant Flushing Hospitaland Medical Center separately appeals from so much of the same order as denied that branch ofthe motion of the [*2]defendants Flushing Hospital and MedicalCenter and Pankaj Patel which was for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthe motion of the defendants Ravi Loona and Ravi Loona, M.D., P.C., for summary judgmentdismissing the complaint insofar as asserted against them and substituting therefor a provisiongranting the motion, and (2) by deleting the provision thereof denying that branch of the motionof the defendants Flushing Hospital and Medical Center and Pankaj Patel which was forsummary judgment dismissing the complaint insofar as asserted against the defendant FlushingHospital and Medical Center and substituting a provision therefor granting that branch of themotion; as so modified, the order is affirmed insofar as appealed from, with one bill of costspayable by the plaintiff to the defendants Ravi Loona and Ravi Loona, M.D., P.C., and thedefendant Flushing Hospital and Medical Center, appearing separately and filing separate briefs,and one bill of costs payable by the defendants Samuel Bernard Fineman and Charles H. Bagleyto the plaintiff.
The plaintiff, who suffered from migraine headaches, and whose use of a particular narcoticto treat such headaches sharply increased over a few months' time, alleged, inter alia, that thedefendant Samuel Bernard Fineman, who was his neurologist, departed from good and acceptedmedical practice by continuing to prescribe that narcotic to him. The plaintiff further alleged thatas a result of his use of the narcotic, he suffered from, among other injuries, compartmentsyndrome in his arm and encephalopathy.
The plaintiff sought a second opinion regarding his use of the narcotic from the defendantCharles H. Bagley, who was also a neurologist. The plaintiff alleged, inter alia, that Bagley, whowas aware of the sharp increase in the plaintiff's use of the narcotic, departed from good andaccepted medical practice in failing to investigate and eliminate the plaintiff's use of the narcotic.
During the course of time that the plaintiff was using the narcotic, he was, on two occasions,taken to the defendant Flushing Hospital and Medical Center (hereinafter the Hospital) becausehe was unconscious for prolonged periods of time, allegedly as a result of his use of the narcotic.After the first episode, the plaintiff was evaluated in the Hospital by the defendant Ravi Loona,who was an orthopedic surgeon. The plaintiff alleged, inter alia, that Loona improperlydiagnosed him with a contused arm, instead of compartment syndrome.
Regarding the Hospital, the plaintiff alleged, inter alia, that after the first episode ofunconsciousness, the Hospital's staff departed from good and accepted medical practice in failingto investigate and eliminate his use of the narcotic. The plaintiff further alleged that after thesecond episode, the Hospital's staff departed from good and accepted medical practice inbelatedly diagnosing his compartment syndrome.
The Supreme Court correctly denied Fineman's motion for summary judgment dismissing thecomplaint insofar as asserted against him. The requisite elements of proof in a medicalmalpractice action are a deviation or departure from good and accepted medical practice and thatsuch departure was a proximate cause of the plaintiff's injuries (see Rebozo v Wilen, 41AD3d 457, 458 [2007]). On a motion by a defendant for summary judgment in a medicalmalpractice action, the defendant has the initial burden of establishing, prima facie, that he or shedid not depart from good and accepted medical practice, or if there was such a departure, that itwas not a proximate cause of [*3]the plaintiff's injuries (seeRebozo v Wilen, 41 AD3d at 458; Thompson v Orner, 36 AD3d 791, 792 [2007];Williams v Sahay, 12 AD3d 366, 368 [2004]). On his motion, Fineman failed todemonstrate his entitlement to judgment as a matter of law (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). The affidavit of his expert neurologist was insufficient toestablish, prima facie, that he did not depart from good and accepted medical practice in histreatment of the plaintiff (cf. Gage v Dutkewych, 3 AD3d 629, 630 [2004]), or that thealleged departure was not a proximate cause of the plaintiff's injuries (see Nwabude v Sistersof Charity Health Care Sys. Corp., 309 AD2d 909, 910 [2003]).
The Supreme Court also correctly denied that branch of Bagley's motion which was forsummary judgment dismissing the complaint insofar as asserted against him. Bagley met hisburden of demonstrating his entitlement to judgment as a matter of law (see Alvarez vProspect Hosp., 68 NY2d at 324), as he submitted an affirmation from an expert neurologistthat was sufficient to establish, prima facie, that he did not depart from good and acceptedmedical practice in his treatment of the plaintiff (see Rebozo v Wilen, 41 AD3d at 458).The burden then shifted to the plaintiff to establish, through an expert's affidavit or affirmation,the existence of triable issues of fact as to whether Bagley departed from good and acceptedmedical practice and whether such departure was a proximate cause of the plaintiff's injuries(see Rebozo v Wilen, 41 AD3d at 458; Thompson v Orner, 36 AD3d at 792;Domaradzki v Glen Cove Ob/Gyn Assoc., 242 AD2d 282 [1997]). The plaintiff providedan affirmation from an expert neurologist that was sufficient to raise triable issues of fact as towhether Bagley departed from good and accepted medical practice in his treatment of theplaintiff, and as to whether such a departure was a proximate cause of the plaintiff's injuries.
However, the Supreme Court should have granted the motion of Loona and his professionalcorporation, the defendant Ravi Loona, M.D., P.C. (hereinafter collectively the Loonadefendants), for summary judgment dismissing the complaint insofar as asserted against them.The Loona defendants met their burden of demonstrating their entitlement to judgment as amatter of law (see Alvarez v Prospect Hosp., 68 NY2d at 324), as they provided anaffirmation from an expert orthopedist that was sufficient to establish, prima facie, that Loonadid not depart from good and accepted medical practice in his examination of the plaintiff(see Rebozo v Wilen, 41 AD3d at 458). While the plaintiff provided an affirmation froman expert internist in opposition, the affirmation was insufficient to raise a triable issue of fact asto whether Loona departed from good and accepted medical practice in failing to diagnose theplaintiff with compartment syndrome, or as to whether the alleged departure exacerbated theplaintiff's arm injury.
The Supreme Court also should have granted that branch of the motion of the Hospital andthe defendant Pankaj Patel which was for summary judgment dismissing the complaint insofar asasserted against the Hospital. Those defendants met their burden of demonstrating theirentitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d at324), as they provided an affirmation from an expert internist that was sufficient to establish,prima facie, that the Hospital's staff did not depart from good and accepted medical practice in itstreatment of the plaintiff (see Rebozo v Wilen, 41 AD3d at 458). The expert affirmationsthat the plaintiff submitted in opposition were insufficient to raise triable issues of fact as towhether the Hospital's staff departed from good and accepted medical practice in treating anddiagnosing him, and as to whether the alleged departures were proximate causes of his injuries.Skelos, J.P., Ritter, Miller and Covello, JJ., concur.