| Nichols v Stamer |
| 2008 NY Slip Op 02805 [49 AD3d 832] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Robert Nichols, Appellant, v David Stamer et al.,Defendants, and Orthopedic Associates of Dutchess County, P.C.,Respondent. |
—[*1] Steinberg, Symer & Platt, LLP, Poughkeepsie, N.Y. (Ellen Fischer Bopp and Jonathan Symerof counsel), for respondent.
In an action to recover damages for medical malpractice, the plaintiff appeals from ajudgment of the Supreme Court, Dutchess County (Brands, J.), entered June 9, 2006, which, aftera jury trial, and upon granting the motion of the defendant Orthopedic Associates of DutchessCounty, P.C., for judgment as a matter of law pursuant to CPLR 4401, made at the close ofevidence, is in favor of that defendant and against him, dismissing the complaint insofar asasserted against it.
Ordered that the judgment is affirmed, with costs.
To be entitled to judgment as a matter of law pursuant to CPLR 4401, the defendant has theburden of showing that, upon viewing the evidence in the light most favorable to the plaintiff, theplaintiff has not made out a prima facie case (see Godlewska v Niznikiewicz, 8 AD3d 430, 431 [2004];Lyons v McCauley, 252 AD2d 516, 517 [1998]; Hughes v New York Hosp.-CornellMed. Ctr., 195 AD2d 442, 443 [1993]; Colozzo v LoVece, 144 AD2d 617, 618[1988]). The court may grant the motion only if there is no rational process by which the jurycould find for the plaintiff against the moving defendant (see Farrukh v Board of Educ. ofCity of N.Y., 227 AD2d 440, 441 [1996]).
"To establish a prima facie case of liability in a medical malpractice action, a plaintiff must[*2]prove (1) the standard of care in the locality where thetreatment occurred, (2) that the defendant breached that standard of care, and (3) that the breachof the standard was the proximate cause of injury" (Berger v Becker, 272 AD2d 565, 565[2000] [citations omitted]; see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986])."Expert testimony is necessary to prove a deviation from accepted standards of medical care andto establish proximate cause" (Lyons v McCauley, 252 AD2d 516, 517 [1998], citingKoehler v Schwartz, 48 NY2d 807 [1979]).
The instant case concerns the treatment of the plaintiff's left leg for "compartmentsyndrome." The leg contains four compartments, each of which contains muscles, arteries, andnerves. A bad fracture, such as the one sustained by the plaintiff, can increase the pressure in oneof these compartments. Increased pressure can impede blood flow through the capillaries in thecompartment, which can damage the muscular, vascular, and nervous tissue in the compartment.The pressure can be relieved by performing a fasciotomy—cutting open the leg specificallyto relieve the pressure.
Here, the plaintiff's expert testified that the defendant Orthopedic Associates of DutchessCounty, P.C. (hereinafter the defendant), departed from the accepted standard of care by delayingthe treatment of the plaintiff's left leg for compartment syndrome for 24 hours. This opinion wasflatly contradicted by the record. The expert was confronted with undisputed evidence that theplaintiff's left leg contained no necrotic tissue two days after his fasciotomy. The expert concededthat this indicated that the plaintiff could only have been experiencing compartment syndromefor a few hours when the doctors intervened. Thus, the testimony of the plaintiff's expertestablished neither that the defendant departed from accepted medical practice, nor that any suchdeparture was a proximate cause of his injuries. Therefore, the Supreme Court properly grantedthe defendant's motion for judgment as a matter of law pursuant to CPLR 4401.
The plaintiff's remaining contentions are without merit. Mastro, J.P., Dickerson, Belen andChambers, JJ., concur.