| Muniz v Katlowitz |
| 2008 NY Slip Op 01928 [49 AD3d 511] |
| March 4, 2008 |
| Appellate Division, Second Department |
| David Muniz et al., Respondents, v Nachum M. Katlowitzet al., Appellants. |
—[*1] Borrell & Riso, LLP, Staten Island, N.Y. (Jeffrey F. P. Borrell of counsel), forrespondents.
In an action, inter alia, to recover damages for medical malpractice, etc., the defendantsNachum M. Katlowitz, Maimonides Medical Center, and Daniel Lehman appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.),dated November 28, 2006, as denied their motion for summary judgment dismissing thecomplaint.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the defendants' motion which were for summary judgment dismissing thecomplaint insofar as asserted against the defendants Maimonides Medical Center and DanielLehman and substituting therefor provisions granting those branches of the motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff David Muniz (hereinafter Muniz) and his wife, the plaintiff Cathy Muniz,commenced this action in November 2004 alleging that Muniz's ilioinguinal nerve was injuredduring surgery performed by the defendants Dr. Nachum M. Katlowitz and Dr. Daniel Lehman inMarch 2003. At the time of the surgery, Dr. Katlowitz was an attending physician and Dr. DanielLehman was a resident employed by the defendant Maimonides Medical Center (hereinafterMaimonides). The complaint asserted causes of action sounding in medical malpractice and lackof informed consent.
In moving for summary judgment dismissing the medical malpractice cause of action, Dr.[*2]Katlowitz submitted the purported affirmation of expert Dr.Peter Schlegel. The statement by Dr. Schlegel did not constitute competent evidence as it was not"subscribed and affirmed by him to be true under the penalties of perjury" (CPLR 2106; seeBourgeois v North Shore Univ. Hosp. at Forest Hills, 290 AD2d 525, 526 [2002]; Parisiv Levine, 246 AD2d 583 [1998]). While Dr. Katlowitz subscribes and affirms the truth of hisaccompanying statement under penalty of perjury, he was not entitled to submit an affirmation inlieu of an affidavit as he was a party to the action (see CPLR 2106; DeLeonardis v Brown, 15 AD3d525 [2005]). Therefore, Dr. Katlowitz did not establish his prima facie entitlement tosummary judgment dismissing the medical malpractice cause of action insofar as asserted againsthim, regardless of the sufficiency of the plaintiffs' opposing papers.
As to the lack of informed consent cause of action asserted against Dr. Katlowitz, he failed toestablish his prima facie entitlement to summary judgment since both he and his expert "failed toallege that a reasonably prudent person in the plaintiff's position would not have declined toundergo the procedure in question if he or she had been fully informed" (Baez v Lockridge,259 AD2d 573, 573 [1999]; seeHaggerty v Wyeth Ayerst Pharms., 11 AD3d 511, 512-513 [2004]; Colon v Klindt,302 AD2d 551, 553 [2003]; Catechis v Corines, 242 AD2d 519 [1997]; PublicHealth Law § 2805-d [1], [3]). Thus, Dr. Katlowitz is not entitled to summary judgmentdismissing the lack of informed consent cause of action regardless of the adequacy of theplaintiffs' opposing papers (see Colon v Klindt, 302 AD2d 551 [2003]; Catechis vCorines, 242 AD2d 519 [1997]).
Dr. Katlowitz's argument that he was under no duty to disclose the risk of nerve injurybecause it was a rare complication and therefore not reasonably foreseeable (see PublicHealth Law § 2805-d [1], [3]) is raised for the first time on appeal and thus not properlybefore this Court (see Rotundo v S & C Magnetic Resonance Imaging, 255 AD2d 573,574 [1998]).
The complaint, however, should have been dismissed insofar as asserted against Dr. Lehmanand Maimonides. "A resident who assists a doctor during a medical procedure, and who does notexercise any independent medical judgment, cannot be held liable for malpractice so long as thedoctor's directions did not so greatly deviate from normal practice that the resident should be heldliable for failing to intervene" (Soto vAndaz, 8 AD3d 470, 471 [2004]; see Toth v Bloshinsky, 39 AD3d 848 [2007]; Cook v Reisner,295 AD2d 466 [2002]; Filippone v St. Vincent's Hosp. & Med. Ctr. of N.Y., 253AD2d 616 [1998]).
Here, Dr. Lehman and Maimonides satisfied their initial burden by submitting bothphysicians' deposition testimony and hospital records demonstrating that Dr. Lehman was underDr. Katlowitz's direct supervision at the time of the procedure, and that Dr. Katlowitz did not sogreatly deviate from normal practice that Dr. Lehman should be liable for failing to intervene.
In opposition, the plaintiffs failed to raise a triable issue of fact. "Although the evidencedemonstrated that [Dr. Lehman] played an active role in [Muniz's] procedure, it did notdemonstrate the exercise of independent medical judgment" (Soto v Andaz, 8 AD3d at471; see Crawford v Sorkin, 41AD3d 278 [2007]; Walter v Betancourt, 283 AD2d 223 [2001]). In addition, theplaintiffs did not raise a triable issue of fact as to whether Dr. Katlowitz's directions "so greatlydeparted from normal practice" that Dr. Lehman should be held liable for failing to intervene(Cook v Reisner, 295 AD2d at 467; see Welch v Scheinfeld, 21 AD3d 802, 808 [2005]; Soto vAndaz, 8 AD3d at 471-472). Indeed, the plaintiffs' expert did not even mention Dr. Lehman(cf. Petty v Pilgrim, 22 AD3d478 [2005]).[*3]
Accordingly, the Supreme Court erred in denying thosebranches of the defendants' motion which were for summary judgment dismissing the complaintinsofar as asserted against Dr. Lehman and Maimonides. Spolzino, J.P., Santucci, Angiolillo andBalkin, JJ., concur.