| Swezey v Montague Rehab & Pain Mgt., P.C. |
| 2009 NY Slip Op 00676 [59 AD3d 431] |
| February 3, 2009 |
| Appellate Division, Second Department |
| Maria Swezey, Respondent, v Montague Rehab & PainManagement, P.C., et al., Defendants, and East Coast Acupuncture Services, P.C., et al.,Appellants. |
—[*1] Lawrence, Worden, Rainis & Bard, P.C., Melville, N.Y. (Roger B. Lawrence and Mary BethReilly of counsel), for appellants Chun-Yuan Li and Raksana Khanukaeva. Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, N.Y. (SusanWeihs Darlington of counsel), for appellants Michael Genco Chiropractic, P.C., and MichaelGenco, D.C., P.C. Kanterman, O'Leary & Socia, LLP, Jamaica, N.Y. (Joseph D. Furlong of counsel), forappellant Carlos A. Garcia. Daniel A. Zahn, Holbrook, N.Y., for respondent.
In a consolidated action to recover damages for medical malpractice, the defendants EastCoast Acupuncture Services, P.C., and John Iozzio appeal, and the defendant Carlos A. Garcia,and the defendants Chun-Yuan Li and Raksana Khanukaeva separately appeal, as limited bytheir respective briefs, from so much of an order of the Supreme Court, Queens County (Kitzes,J.), entered December 26, 2007, as denied their respective motions for summary judgmentdismissing the complaint insofar as asserted [*2]against each ofthem, and the defendants Michael Genco Chiropractic, P.C., and Michael Genco, D.C., P.C.,separately appeal, as limited by their brief, from so much of the same order as denied that branchof their separate motion which was for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is reversed insofar as appealed from by the defendants East CoastAcupuncture Services, P.C., and John Iozzio, and separately appealed from by the defendantsChun-Yuan Li and Raksana Khanukaeva and the defendants Michael Genco Chiropractic, P.C.,and Michael Genco, D.C., P.C., on the law, and the respective motions of the defendants EastCoast Acupuncture Services, P.C., and John Iozzio, and the defendants Chun-Yuan Li andRaksana Khanukaeva for summary judgment dismissing the complaint insofar as asserted againsteach of them, and that branch of the separate motion of the defendants Michael GencoChiropractic, P.C., and Michael Genco, D.C., P.C., which was for summary judgment dismissingthe complaint insofar as asserted against them are granted; and it is further,
Ordered that the order is affirmed insofar as separately appealed from by the defendantCarlos A. Garcia; and it is further,
Ordered that one bill of costs is awarded to the defendants East Coast Acupuncture Services,P.C., and John Iozzio, the defendants Chun-Yuan Li and Raksana Khanukaeva, and thedefendants Michael Genco Chiropractic, P.C., and Michael Genco, D.C., P.C., appearingseparately and filing separate briefs, payable by the plaintiff; and it is further,
Ordered that one bill of costs is awarded to the plaintiff payable by the defendant Carlos A.Garcia.
The plaintiff underwent surgery on November 1, 1999 to remove a needle that was lodged inthe right ventricle of her heart. The needle was revealed by a chest X ray which was taken afterthe plaintiff sought medical treatment at Elmhurst Hospital. Following her surgery, the plaintiffcommenced an action against various chiropractors and acupuncturists, including the defendantsEast Coast Acupuncture Services, P.C. (hereinafter East Coast), John Iozzio, Chun-Yuan Li,Raksana Khanukaeva, and Michael Genco Chiropractic, P.C., and Michael Genco, D.C., P.C.(hereinafter together the Genco corporations), alleging, inter alia, that they had negligentlycaused an acupuncture or EMG needle to become lodged in her chest. The plaintiff alsocommenced a second action, later consolidated with the first, against several physicians,including the defendant Carlos A. Garcia, alleging, inter alia, that he misdiagnosed andmismanaged her medical complaints. East Coast and Iozzio, Li and Khanukaeva, the Gencocorporations, and Garcia all thereafter separately moved for summary judgment dismissing thecomplaint insofar as asserted against each of them.
The Supreme Court properly denied Garcia's motion for summary judgment dismissing thecomplaint insofar as asserted against him. "On a motion for summary judgment in a medicalmalpractice action, a defendant doctor has the burden of establishing the absence of anydeparture from good and accepted medical practice, or that the plaintiff was not injured thereby"(Germaine v Yu, 49 AD3d685, 686 [2008], quoting Shahid vNew York City Health & Hosps. Corp., 47 AD3d 800, 801 [2008]). If the defendantdoctor sustains this burden, in order to defeat summary judgment "a plaintiff must submit aphysician's affidavit of merit attesting to a departure from accepted practice and containing theattesting doctor's [*3]opinion that the defendant's omissions ordepartures were a competent producing cause of the injury" (Domaradzki v Glen CoveOb/Gyn Assoc., 242 AD2d 282 [1997]; see Holbrook v United Hosp. Med. Ctr., 248AD2d 358, 359 [1998]). Garcia made a prima facie showing of his entitlement to judgment as amatter of law through his own affidavit, in which he averred that his evaluation and treatment ofthe plaintiff was in accord with accepted medical standards and that any alleged deviation wasnot a proximate cause of her injury (see Alvarez v Prospect Hosp., 68 NY2d 320, 325[1986]; Videnovic v Goodman, 54AD3d 937 [2008]; Breland vJamaica Hosp. Med. Ctr., 49 AD3d 789, 790 [2008]).
In opposition, the plaintiff raised a triable issue of fact by submitting the affidavit of anexpert who opined, to a reasonable degree of medical certainty, that Garcia departed from goodand accepted medical practice in his care and treatment of the plaintiff, and that the departurewas a proximate cause of the damages alleged (see Videnovic v Goodman, 54 AD3d 937 [2008]; Breland v Jamaica Hosp. Med. Ctr., 49AD3d 789 [2008]). The plaintiff's expert concluded that in light of the plaintiff's complaintsof chest pain and tightness, Garcia departed from good and accepted medical practice by failingeither to follow up with respect to the results of a chest X ray taken by a physician within thesame medical center approximately one day before he treated her or to order a chest X ray whenhe treated her. Further, the expert opined that if Garcia had followed up on the results of theprevious chest X ray or ordered another one, the needle would have been revealed. Accordingly,the Supreme Court properly denied Garcia's motion.
However, the Supreme Court should have granted the separate motions of East Coast andIozzio, and of Li and Khanukaeva (hereinafter together the acupuncture defendants). Theacupuncture defendants established their prima facie entitlement to judgment as a matter of lawby submitting evidentiary proof that the needles utilized during the plaintiff's acupuncturetreatment were composed of stainless steel and were approximately 0.22 to 0.25 millimeters indiameter, which was smaller than the needle removed from the plaintiff's heart. The acupuncturedefendants also submitted an affidavit from a metallurgical engineer who tested the needleremoved from the plaintiff's heart and concluded, based on its chemical composition anddiameter, that it was not an acupuncture needle.
In opposition, the plaintiff failed to raise a triable issue of fact (see Rebozo v Wilen, 41 AD3d457, 459 [2007]; Bowman vChasky, 30 AD3d 552, 553 [2006]). The conclusory affidavit of the plaintiff's expertlacked factual support and failed to address the results of the scientific testing performed by theacupuncture defendants' expert and the expert's conclusion that the foreign object removed fromthe plaintiff was different in chemical composition and diameter from the acupuncture needlesthey used in rendering acupuncture treatment to the plaintiff. Accordingly, the Supreme Courtshould have granted the respective motions of East Coast and Iozzio, and Li and Khanukaeva forsummary judgment dismissing the complaint insofar as asserted against each of them (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Since the plaintiff's claim against the Genco corporations is predicated solely on their allegedvicarious liability for the alleged negligence of the acupuncture defendants, the Gencocorporations were also entitled to summary judgment.
The parties' remaining contentions are without merit or have been rendered academic by ourdetermination Skelos, J.P., Dillon, Angiolillo and Eng, JJ., concur.