| Zak v Brookhaven Mem. Hosp. Med. Ctr. |
| 2008 NY Slip Op 06985 [54 AD3d 852] |
| September 16, 2008 |
| Appellate Division, Second Department |
| John M. Zak, Respondent, v Brookhaven MemorialHospital Medical Center, Appellant. |
—[*1] Bauman, Kunkis & Ocasio-Douglas (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E.DiJoseph III], of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendant appealsfrom (1) an order of the Supreme Court, Suffolk County (Pitts, J.), dated May 17, 2007, whichgranted the plaintiff's motion for summary judgment on the issue of liability, and (2) aninterlocutory judgment of the same court dated July 2, 2007, which, upon the order, is in favor ofthe plaintiff and against the defendant on the issue of liability.
Ordered that the appeal from the order is dismissed, as it was superseded by the interlocutoryjudgment entered thereon; and it is further,
Ordered that the interlocutory judgment is reversed, on the law, the plaintiff's motion forsummary judgment on the issue of liability is denied, and the order is modified accordingly; andit is further,
Ordered that one bill of costs is awarded to the defendant.
The plaintiff's decedent Anna D. Awe was admitted to the defendant Brookhaven MemorialHospital Medical Center (hereinafter the hospital) with complaints of abdominal pain and wastreated for, [*2]among other things, gastrointestinal bleeding. Thedecedent remained in the hospital and, about one month later, after the decedent wasadministered heparin without a physician's order, she experienced further gastrointestinalbleeding, declined in health, and eventually died as an inpatient. The plaintiff, as executor of thedecedent's estate, alleges that as a result of the hospital's negligence, the decedent was disabled,incurred expenses, experienced extreme mental and physical pain, and sustained injury anddamage to her person prior to death.
In order "[t]o establish a prima facie case of liability in a medical malpractice action, aplaintiff must prove (1) the standard of care in the locality where the treatment occurred, (2) thatthe defendant breached that standard of care, and (3) that the breach of the standard was theproximate cause of the injury" (Berger v Becker, 272 AD2d 565, 565 [2000]; see Nichols v Stamer, 49 AD3d832, 833 [2008]; see also Elliot vLong Is. Home, Ltd., 12 AD3d 481, 482 [2004]). The plaintiff is required to show thatthe alleged deviation was a "substantial factor in producing the injury" (Lyons vMcCauley, 252 AD2d 516, 517 [1998]). "Expert testimony is necessary to . . .establish proximate cause unless the matter is one which is within the experience and observationof the ordinary juror" (Lyons v McCauley, 252 AD2d at 517; cf. Fiore v Galang,64 NY2d 999, 1001 [1985]).
In support of his motion for summary judgment on the issue of liability, the plaintiffsubmitted, inter alia, the affidavit of a registered nurse. Although the registered nurse wasqualified to establish that the allegedly negligent administration of heparin without a physician'sorder was a departure from acceptable standards of good nursing care, she was not qualified toopine that said departure was a substantial factor in causing any injury separate and apart fromthe decedent's underlying condition (seeAbalola v Flower Hosp., 44 AD3d 522 [2007]; Elliot v Long Is. Home, Ltd., 12AD3d at 482; Mills v Moriarty, 302 AD2d 436, 436-437 [2003]; Lyons vMcCauley, 252 AD2d at 517; cf.Glasgow v Chou, 33 AD3d 959, 962 [2006]). The plaintiff's other submissions,including hospital records and deposition testimony, were also insufficient to establish a causallink between the hospital's alleged breach of duty and the decedent's deterioration and eventualdeath (see Orr v Meisel, 248 AD2d 451, 451-452 [1998]). Accordingly, the SupremeCourt should have denied the plaintiff's motion for summary judgment on the issue of liability.Skelos, J.P., Covello, Leventhal and Belen, JJ., concur.