| Snyder v Simon |
| 2008 NY Slip Op 01900 [49 AD3d 954] |
| March 6, 2008 |
| Appellate Division, Third Department |
| Donna Snyder, Appellant, v John W. Simon et al.,Respondents. |
—[*1] Maynard, O'Connor, Smith & Catalinotto, Albany (Michael T. Snyder of counsel), forrespondents.
Mercure, J.P. Appeal from an order of the Supreme Court (Teresi, J.), entered October 19,2005 in Albany County, which, among other things, granted defendants' motion for summaryjudgment dismissing the complaint.
After noticing that her long-standing esotropia, a condition which caused her right eye to turninward, had worsened, plaintiff discussed the possibility of eye surgery with her optometrist,defendant Albert Morier. Morier referred plaintiff to defendant John W. Simon, anophthalmologist at defendant Lions Eye Institute of defendant Albany Medical Center Hospital.At Simon's request, defendant David J. Hodgetts, an orthoptist, took various measurements andfitted plaintiff for prisms on her glasses in connection with the possible eye surgery. In May2000, Simon performed eye muscle surgery on plaintiff. Thereafter, plaintiff complained ofdiplopia (double vision), pain and exotropia, i.e., outward turning, of the right eye. In August2000, after continued complaints from plaintiff, Simon performed a second surgery and deemedthe result "ideal."
Nevertheless, plaintiff commenced this action pro se in 2003, alleging that Simon committedmalpractice in performing the surgeries, causing disabling injuries to her right eye and severepain, and that Simon failed to obtain her informed consent. Following joinder of issue, [*2]Supreme Court granted defendants' motion for summary judgmentdismissing the complaint and denied plaintiff's cross motion for summary judgment. Plaintiffappeals and we now modify by reinstating her informed consent claim against Simon, Lions EyeInstitute and Albany Medical Center Hospital.
Plaintiff does not dispute that defendants made a prima facie showing of entitlement tosummary judgment; rather, she asserts that her three expert witness affidavits, consideredtogether, created triable issues of fact regarding Simon's negligence in treating her and failing toobtain her informed consent. Initially, we note that Morier's involvement in the surgery waslimited to referring plaintiff to Simon, Hodgetts' involvement was limited to performing tests andmeasurements at Simon's direction without exercising independent medical judgment, and thereis no indication that the tests greatly deviated from normal practice. As such, neither Morier norHodgetts may be held liable for any malpractice committed by Simon, and Supreme Courtproperly dismissed the third and fourth causes of action in the complaint against them (see Soto v Andaz, 8 AD3d 470,471 [2004]; Harrington v Neurological Inst. of Columbia Presbyt. Med. Ctr., 254 AD2d129, 131 [1998]).
In order to rebut Simon's showing of entitlement to summary judgment on the malpracticeclaim against him as well, plaintiff was required to "establish[ ] a departure from acceptedmedical practice, as well as a nexus between the alleged malpractice and [her] injury" (Rossiv Arnot Ogden Med. Ctr., 268 AD2d 916, 917 [2000], lv denied 95 NY2d 751[2000]; see Passero v Puleo, 17AD3d 953, 954 [2005]; Stuart v Ellis Hosp., 198 AD2d 559, 560 [1993]). It is wellsettled that "[g]eneral allegations of medical malpractice, merely conclusory and unsupported bycompetent evidence tending to establish the essential elements of medical malpractice, areinsufficient to defeat [a] defendant physician's summary judgment motion" (Alvarez vProspect Hosp., 68 NY2d 320, 325 [1986]; see Diaz v New York Downtown Hosp.,99 NY2d 542, 544 [2002]). In our view, the expert affidavits submitted by plaintiff do notidentify or define the applicable standard of care, and fail to adequately set forth both the mannerin which Simon deviated from the standard of care in treating plaintiff and the requisite nexusbetween that alleged malpractice and the injuries to plaintiff. The affidavits are generalized,conclusory and insufficient to establish the elements of a medical malpractice claim or raise aquestion of fact on her claim that Simon deviated from accepted medical practice in treating her,thereby injuring her (see Passero v Puleo, 17 AD3d at 954-955; Hoffman v Pelletier, 6 AD3d 889,891 [2004]; Grzelecki v Sipperly, 2AD3d 939, 941 [2003]; but see Lowery v Hise, 202 AD2d 948, 949 [1994]).
Finally, with respect to plaintiff's informed consent claim, defendants submitted the affidavitof Simon, who averred that prior to the first surgery, he extensively discussed therisks—including the particular possibility of double vision—and obtained plaintiff'sinformed consent. While plaintiff made no showing of qualitative insufficiency in Simon'sdiscussion of the risks—as must be established by expert medical testimony at trial(see CPLR 4401-a; King v Jordan, 265 AD2d 619, 620 [1999])—herunequivocal assertion that Simon failed to advise her of the possibility of double vision prior tothe first surgery is sufficient to create a question of fact under the circumstances of this case(see Lowery v Hise, 202 AD2d at 949; see also Santiago v Filstein, 35 AD3d 184, 187 [2006]; Corcino v Filstein, 32 AD3d 201,202 [2006]; cf. Romatowski v Hitzig, 227 AD2d 870, 871 [1996], lv dismissed anddenied 89 NY2d 915 [1996]).
Peters, Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as granted defendants' motion for summaryjudgment dismissing the second, fifth and sixth causes of action; motion denied to that extent;and, as so modified, affirmed.