| Oestreich v Present |
| 2008 NY Slip Op 03706 [50 AD3d 522] |
| April 24, 2008 |
| Appellate Division, First Department |
| Joyce Oestreich, as Administratrix of the Estate of Holly Oestreich,Deceased, Appellant, v Daniel L. Present, M.D., et al., Respondents, et al.,Defendant. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Richard E. Lerner ofcounsel), for Daniel L. Present, M.D., Adam F. Steinlauf, M.D. and Michael T. Harris, M.D.,respondents. Martin Clearwater & Bell LLP, New York (Claudia J. Charles of counsel), for Blair S.Lewis, M.D., respondent. Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York (Anthony J. Connors ofcounsel), for Anna C. Gregoriou, M.D. and The Mount Sinai Medical Center,respondents.
Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered July 10, 2006,which granted defendants-respondents' motions for summary judgment dismissing the complaint,and order, same court and Justice, entered January 12, 2007, which, to the extent appealed fromas limited by the briefs, denied plaintiff's motion for leave to renew the prior motion,unanimously affirmed, without costs.
Defendants-respondents made a prima facie showing of entitlement to summary judgmentdismissing this medical malpractice action by submitting affidavits from medical expertsestablishing that the treatment provided to plaintiff's decedent, including the recommendation forsurgery, comported with good and accepted practice. In response, plaintiff failed to raise a triablefactual issue, as her expert anesthesiologist's affirmation, based on assumptions that were notsupported by the record, set forth general conclusions, misstatements of evidence and wasinsufficient to demonstrate that said defendants failed to comport with accepted medical practiceor that any such failure was the proximate cause of decedent's injuries (see Diaz v New YorkDowntown Hosp., 99 NY2d 542, 544 [2002]; Coronel v New York City Health & Hosps. Corp., 47 AD3d 456[2008]). The anesthesiologist based his opinion on the use of an eight millimeter endotrachealtube to intubate decedent during the surgery she underwent in April 2001, asserting [*2]that the size of the tube, which was inappropriate given decedent'ssize, weight and poor health, combined with the fact that a nasogastric tube was used for theduration of the surgery, which lasted nine hours, led to the development of an esophageal fistula.The record, however, demonstrates that a six millimeter tube was used and does not indicateanywhere that a nasogastric tube was utilized. The expert also strenuously asserted that the injurywas to decedent's trachea and not her esophagus, while plaintiff's bill of particulars refers to aninjury to the esophagus.
Plaintiff's expert gastroenterologist similarly submitted a conclusory affirmation that fails toset forth how or why defendants departed from good and accepted medical practice. The expertsuggests that the results of the diagnostic tests were inconsistent with a diagnosis of Crohn'sdisease of the esophagus, but fails to explain why they were inconsistent with the diagnosis orwhy the diagnosis was allegedly incorrect. This expert also fails to explain why therecommendation that decedent undergo a high-risk surgical procedure to address the conditionwas a deviation. The expert asserts that dilatation of the esophagus was possible at the time therecommendation for surgery was made and would have been the better course, but the recorddemonstrates that such a procedure was not possible at that time because attempts at passing ascope through decedent's esophagus were unsuccessful.
The court also properly denied the motion to renew. Although plaintiff submitted anaffirmation of clarification from her expert anesthesiologist, she failed to provide a reasonableexplanation as to why she had not offered this information in opposition to the prior motions(see CPLR 2221 [e] [3];Crawford v Sorkin, 41 AD3d 278 [2007]). In any event, the new material would nothave warranted a different result. Concur—Tom, J.P., Mazzarelli, Williams and Sweeny,JJ.