| Geffner v North Shore Univ. Hosp. |
| 2008 NY Slip Op 10124 [57 AD3d 839] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Rebecca Geffner, Appellant, v North Shore University Hospitalet al., Respondents, et al., Defendants. |
—[*1] Martin Clearwater & Bell, LLP, New York, N.Y. (Ellen B. Fishman, Anthony M. Sola, andThomas J. Kroczynski of counsel), for respondent North Shore University Hospital. Vincent D. McNamara, East Norwich, N.Y. (Karen Walsh of counsel), for respondents Steve W.Rucker, Jim N. Hilepo, and J. Ezra Haller.
In an action, inter alia, to recover damages for medical malpractice, wrongful death, and lack ofinformed consent, the plaintiff appeals (1) from an order of the Supreme Court, Queens County(Dollard, J.), dated March 30, 2007, which (a) denied her motion, inter alia, to strike the answer of thedefendant North Shore University Hospital based on spoliation of evidence and to hold that defendantin civil contempt for violating two temporary restraining orders of the same court dated June 4, 2002and October 10, 2002, respectively, and (b) granted the separate cross motions of the defendantsSteve W. Rucker, Jim N. Hilepo, and J. Ezra Haller, and the defendant North Shore UniversityHospital for summary judgment dismissing the complaint insofar as asserted against them, (2) as limitedby her brief, from so much of an order of the same court (O'Donoghue, J.), dated May 2, 2007, asdenied the plaintiff's motion, inter alia, to strike the papers of the defendant North Shore UniversityHospital submitted in opposition to her prior motion to strike the answer of that defendant, and (3) froma judgment of the same court (Dollard, J.), dated May 10, 2007, which, upon the order dated March30, 2007, is in favor of the defendants Steve W. Rucker, Jim N. Hilepo, J. Ezra Haller, and NorthShore University Hospital and against her, dismissing the complaint insofar as asserted against thosedefendants.[*2]
Ordered that the appeals from the orders are dismissed; and itis further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
The appeals from the intermediate orders must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d241, 248 [1976]). The issues raised on the appeals from the intermediate orders are brought up forreview and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The Supreme Court providently exercised its discretion in denying that branch of the plaintiff'smotion which was to strike the answer of the defendant North Shore University Hospital (hereinafterNorth Shore) based on spoliation of evidence. "The court has broad discretion in determining thesanction for spoliation of evidence and may, under the appropriate circumstances, impose a sanction ifthe destruction occurred through negligence rather than willfulness" (Molinari v Smith, 39 AD3d 607, 608[2007]; see Dean v Usine Campagna, 44AD3d 603, 605 [2007]). Although reluctant to strike a pleading absent willful or contumaciousconduct, courts will consider the prejudice resulting from spoliation in determining whether such drasticaction is necessary as a matter of elementary fairness (see Dean v Usine Campagna, 44 AD3dat 605; De Los Santos v Polanco, 21AD3d 397, 398 [2005]; Favish v Tepler, 294 AD2d 396 [2002]). Where a party'snegligent loss or destruction of evidence does not deprive its opponent of a means to present or defendagainst a claim, striking a spoliator's pleading is not warranted (see Dean v Usine Campagna,44 AD3d at 605; E.W. Howell Co., Inc.v S.A.F. La Sala Corp., 36 AD3d 653, 655 [2007]; De Los Santos v Polanco, 21AD3d at 397-398). Here, there was no showing that North Shore willfully and contumaciouslydiscarded specimens, samples, blood, bodily fluids, or any other physical matter of the plaintiff'sdecedent which it was directed to preserve pursuant to two temporary restraining orders (cf.DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53 [1998]). Furthermore, the failure topreserve certain specimens did not prevent the plaintiff from proving her case (see Denoyelles v Gallagher, 40 AD3d1027 [2007]; Iannucci v Rose, 8AD3d 437, 438 [2004]).
The Supreme Court properly denied that branch of the plaintiff's motion which was to punish NorthShore for civil contempt. In order to prevail on a motion to punish a party for civil contempt, themovant must demonstrate that the party charged with the contempt violated a clear and unequivocalcourt order, thereby impairing or prejudicing a right of another party to the litigation (seeJudiciary Law § 753 [A] [3]; McCain v Dinkins, 84 NY2d 216, 225-226 [1994];Matter of McCormick v Axelrod, 59 NY2d 574, 584 [1983]; Goldsmith v Goldsmith,261 AD2d 576, 577 [1999]). Here, the plaintiff failed to demonstrate that North Shore's conductin discarding certain specimens in violation of two temporary restraining orders was calculated to oractually did defeat, impair, impede, or prejudice her rights or remedies in any way (see Matter ofCongregation Yetev Lev D'Satmar v Kahana, 308 AD2d 447, 448 [2003]; City ofPoughkeepsie v Hetey, 121 AD2d 496, 497 [1986]).
The Supreme Court properly granted the separate cross motions of the defendants Steve W.Rucker, Jim N. Hilepo, and J. Ezra Haller (hereinafter the defendant doctors), and the defendant NorthShore for summary judgment dismissing the complaint insofar as asserted against each of them. Theevidence submitted by the movants, including the affirmation and affidavit of North Shore's experts,James Strauchen and Jonas M. Goldstone, both physicians subcertified in [*3]hematology and medical oncology, in opposition to the plaintiff's motionand in support of their respective cross motions for summary judgment demonstrated, prima facie, thatthe defendant doctors did not depart from good and accepted medical practice (see CPLR3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy,35 NY2d 361, 364 [1974]; Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710,711 [2007]). The burden then shifted to the plaintiff to lay bare her proof and to demonstrate theexistence of a triable issue of fact (see Rosenv John J. Foley Skilled Nursing Facility, 45 AD3d 558 [2007]; Micciola v Sacchi, 36 AD3d 869, 871[2007]; Kaplan v Hamilton Med. Assoc., 262 AD2d 609, 610 [1999]). The requisite elementsof proof in a medical malpractice action are a deviation or departure from accepted communitystandards of practice and evidence that such departure was a proximate cause of injury or damage(see Spensieri v Lasky, 94 NY2d 231, 238 [1999]; Toth v Community Hosp. at GlenCove, 22 NY2d 255, 262 [1968]; Rosen v John J. Foley Skilled Nursing Facility, 45 AD3d 558 [2007];Rebozo v Wilen, 41 AD3d 457,458 [2007]; Mosezhnik v Berenstein, 33AD3d 895, 896 [2006]). The plaintiff alleged that during the decedent's admission to North Shore,the defendant doctors engaged in numerous acts and omissions that were a competent producing causeof the decedent's death, including the misdiagnoses of the decedent as suffering from, inter alia,adenocarcinoma, the failure timely to diagnose and to treat an infection, and the overadministration ofdrugs. To support her allegations, the plaintiff submitted the expert affidavit of Charles Phillips, aphysician certified in emergency medicine. Dr. Phillips' affidavit was of no probative value, however, asit contained opinions outside his area of expertise and did not establish a foundation for his opinions (see Glazer v Choong-Hee Lee, 51 AD3d970 [2008]; Mustello v Berg, 44AD3d 1018, 1018-1019 [2007]; Beharv Coren, 21 AD3d 1045, 1046-1047 [2005]). In addition, the plaintiff submitted the affidavitof a pharmacist who rendered an opinion that drug overdosing was a proximate cause of the decedent'spain and suffering and death. Even if the pharmacist were qualified to do so, he failed to render anyexpert opinion as to the appropriate standard of care for physicians in the administration and use ofdrugs in 2002 and what, if any, departures from that standard of care were committed by the defendantdoctors (see Mustello v Berg, 44 AD3d at 1019; Behar v Coren, 21 AD3d at 1047;LaMarque v North Shore Univ. Hosp., 227 AD2d 594, 594-595 [1996]). Finally, the plaintiffsubmitted the expert affirmations of Howard C. Adelman, a physician certified in clinical pathology andcytopathology, which alleged that the defendant doctors misdiagnosed the decedent as suffering frommyelodysplastic syndrome, acute myeloid leukemia, and adenocarcinoma. Dr. Adelman's affirmationswere insufficient to raise a triable issue of fact with respect to the alleged misdiagnoses since they failedto address the evidence relied upon by North Shore's experts in rendering their opinions that thediagnoses were correct (see Germaine v Yu,49 AD3d 685, 687 [2008]; Fhima v Maimonides Med. Ctr., 269 AD2d 559, 560[2000]).
The defendant North Shore established its prima facie entitlement to judgment as a matter of lawby demonstrating that the plaintiff's decedent was treated only by private attending physicians who werenot its employees and, thus, it could not be held vicariously liable for any alleged malpractice (see Rose v Horton Med. Ctr., 29 AD3d977 [2006]; Woodard v LaGuardia Hosp., 282 AD2d 529, 530 [2001]). The evidencesubmitted by the plaintiff in opposition failed to refute the opinions of North Shore's experts that noindependent acts of negligence were committed by any employees of North Shore (see Romano vStanley, 90 NY2d 444, 452 [1997]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986];Woodard v LaGuardia Hosp., 282 AD2d at 530).
The plaintiff's remaining contentions are without merit. Spolzino, J.P., Covello, Angiolillo andChambers, JJ., concur.