| Murray v Hirsch |
| 2009 NY Slip Op 00359 [58 AD3d 701] |
| January 20, 2009 |
| Appellate Division, Second Department |
| David Murray et al., Respondents, v Stephen Hirsch et al.,Appellants. |
—[*1] Wingate, Russotti & Shapiro, LLP, New York, N.Y. (Jason M. Rubin of counsel), forrespondents.
In an action to recover damages for medical malpractice, etc., the defendants appeal from somuch of an order of the Supreme Court, Nassau County (Cozzens, J.), entered January 16, 2008,as denied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendants' motion for summary judgment dismissing the complaint is granted.
The plaintiff David Murray (hereinafter the plaintiff) went to the defendant Stephen Hirsch(hereinafter the defendant), a urologist, in January 2004 complaining of darkened semen. Thedefendant advised the plaintiff that the darkening was caused by blood in his semen, a conditionknown as hematospermia. The defendant examined the plaintiff's prostate and found it normal.The plaintiff's prostate specific antigen (PSA) score was 1.87, a rise of .57 from the testconducted in 2001. The defendant told the plaintiff that the condition was benign and wouldclear up on its own. The plaintiff was subsequently diagnosed with prostate cancer. The plaintiffand his wife commenced this action against the defendants asserting, inter alia, that thedefendant should have ordered a prostate sonogram and biopsy [*2]when he had first complained of hematospermia because his risingPSA scores, combined with the hematospermia, were indicative of an elevated risk of prostatecancer. The Supreme Court denied the defendants' motion for summary judgment dismissing thecomplaint. We reverse.
On a motion for summary judgment, a defendant doctor has the burden of establishing theabsence of any departure from good and accepted medical practice or that the plaintiff was notinjured thereby (see Shahid v New YorkCity Health & Hosps. Corp., 47 AD3d 800 [2008]; Rebozo v Wilen, 41 AD3d 457 [2007]; Williams v Sahay, 12 AD3d 366[2004]). The affirmation of the defendants' expert was sufficient to establish that the defendantdid not depart from good and accepted medical practice.
Once a defendant has made this prima facie showing, the burden shifts to the plaintiff toestablish the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]). In opposition, the plaintiff must submit a physician's affidavit attesting to thedefendant's departure from accepted practice, which departure was a competent producing causeof the injury (see Rebozo v Wilen, 41 AD3d at 458; Domaradzki v Glen CoveOb/Gyn Assoc., 242 AD2d 282 [1997]). The affirmation of the plaintiffs' expert wassufficient to raise a triable issue of fact as to whether the defendant departed from good andaccepted medical practice. However, in his affirmation, the plaintiffs' expert completely failed toaddress the issue of how the defendant's departure was a proximate cause of the plaintiff'sinjuries.
Accordingly, the defendants' motion for summary judgment dismissing the complaint shouldhave been granted. Fisher, J.P., Miller, Carni and Balkin, JJ., concur.