| Bell v Ellis Hosp. |
| 2008 NY Slip Op 02942 [50 AD3d 1240] |
| April 3, 2008 |
| Appellate Division, Third Department |
| Richard Bell, as Administrator of the Estate of Roland RichardBell, Deceased, Respondent, v Ellis Hospital et al., Defendants, and Michele Gorla,Appellant. |
—[*1] Finkelstein & Partners, L.L.P., Newburgh (Terry D. Horner of counsel), forrespondent.
Peters, J.P. Appeal from an order of the Supreme Court (Giardino, J.), entered February 1,2007 in Schenectady County, which, among other things, denied defendant Michele Gorla'smotion for summary judgment dismissing the complaint against him.
On January 13, 2003, Roland Richard Bell (hereinafter decedent), a patient at defendantNorthwoods Rehabilitation and Extended Care Facility-Hilltop, was admitted to defendant EllisHospital. Defendant Michele Gorla, a physician, examined decedent, reviewed various laboratorytests, determined that he had metabolic acidosis resulting from either dehydration or septic shock,and ordered a CT scan of his abdomen. Upon receipt of a verbal report from the radiologist thatthe CT scan showed extensive pneumatosis, small bowel ileus, air in the portal venous systemand mild hydronephrosis, Gorla, believing that surgery might be warranted, contacted defendantIftikhar A. Syed, the Chief of Surgery at Ellis. Syed recommended hydration, antibiotics andcontinued monitoring, and advised Gorla that he would see decedent [*2]for a consultation in the morning. Early the following morning,Syed examined decedent and, based on certain changes in his condition, determined that surgerywas necessary. Shortly after the completion of surgery, decedent's condition worsened and heultimately died.
Plaintiff, as administrator of decedent's estate, commenced this action against Ellis,Northwoods, Highgate LTC Management, LLC, Syed and Gorla alleging medical malpracticeand negligence. Following joinder of issue and discovery, Gorla and others moved for summaryjudgment dismissing the complaint. Finding that plaintiff's expert raised issues of fact sufficientto withstand summary judgment in favor of Gorla, Supreme Court denied his motion. Gorlaappeals.
The gravamen of plaintiff's claim is that Gorla and Syed improperly deferred a surgicalevaluation of decedent and the performance of surgery until the morning of January 14, 2003.Plaintiff does not dispute that Gorla made a prima facie showing of entitlement to summaryjudgment. Therefore, in order to rebut his showing, plaintiff was required to demonstrate,through competent expert medical opinion evidence, both a deviation from the accepted standardof care and that the departure was a proximate cause of decedent's death (see Hranek v United Methodist Homes ofWyo. Conference, 27 AD3d 879, 880 [2006]; Schuller v Martinelli, 304 AD2d967, 968 [2003], lv denied 100 NY2d 509 [2003]). To this end, plaintiff submitted theaffirmation of an anonymous physician, licensed to practice in New York and board certified ininternal medicine and gastroenterology.
Initially, we reject Gorla's argument that the affirmation of plaintiff's expert is insufficient todemonstrate that the expert possessed the requisite skill or expertise to render an opinion on theissue of his negligence because it fails to set forth the expert's practice experience. Thespecialized skills of plaintiff's expert as demonstrated through his board certifications, takentogether with the nature of the medical subject matter of this action, are sufficient to support theinference that his opinion regarding decedent's treatment was reliable (see Romano vStanley, 90 NY2d 444, 452 [1997]; Flower v Noonan, 271 AD2d 825, 826 [2000];compare Hoffman v Pelletier, 6AD3d 889, 890-891 [2004]), and any alleged lack of skill or experience goes to the weightto be given to the opinion, not its admissibility (see Hranek v United Methodist Homes ofWyo. Conference, 27 AD3d at 880; Payant v Imobersteg, 256 AD2d 702, 705[1998]).
We also disagree with Gorla's contention that the affirmation of plaintiff's expert wassubstantively deficient and, therefore, failed to raise an issue of fact requiring a trial. Although"[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competentevidence tending to establish the essential elements of medical malpractice, are insufficient todefeat [a] defendant physician's summary judgment motion" (Alvarez v Prospect Hosp.,68 NY2d 320, 325 [1986]; see Chase vCayuga Med. Ctr. at Ithaca, 2 AD3d 990, 990-991 [2003]), we find that the affirmationof plaintiff's expert, while sparse, was sufficient to raise a triable issue of fact precludingsummary judgment. According to plaintiff's expert, "the decision by Dr. Gorla and/or Dr. Syed todefer a surgical evaluation until morning" constituted a deviation from the accepted standard ofmedical care which was a factor in bringing about decedent's death. As Syed had testified that thedecision to defer a surgical consultation until morning was made jointly with Gorla, the expertaffirmation, which was based upon a review of decedent's medical records, medical history andthe discovery materials exchanged, adequately set forth the elements of the medical malpracticeclaim by factual references to the care and treatment of decedent (see Dandrea v Hertz, 23 AD3d332, 333 [2005]; Flower v Noonan, 271 AD2d at 826; Lowery v Hise, 202AD2d 948, 949 [1994]). Thus, Supreme Court did not err in denying Gorla's summary [*3]judgment motion.
Rose, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed, withcosts.