| Dunn v Khan |
| 2009 NY Slip Op 04024 [62 AD3d 828] |
| May 19, 2009 |
| Appellate Division, Second Department |
| Mitchell Dunn, Appellant, v Aijaz Khan et al.,Respondents, et al., Defendant. |
—[*1] Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, N.Y. (JamesM. Furey, Jr., and Susan Darlington of counsel), for respondent Aijaz Khan. Bartlett McDonough Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro,Jr., and Patricia D'Alvia of counsel), for respondents South Nassau Communities Hospital andCesar Dumayas Florita.
In an action to recover damages for medical malpractice, the plaintiff appeals, as limited byhis brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), datedSeptember 28, 2007, as granted the separate motions of the defendant Aijaz Khan and thedefendants Cesar Dumayas Florita and South Nassau Communities Hospital for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondents appearing separately and filing separate briefs.
On the morning or August 19, 2003 the decedent Pauline Dunn was brought to the defendantSouth Nassau Communities Hospital (hereinafter South Nassau) after having ingested 50 Xanaxpills. She was treated for her medical condition by the defendant Aijaz Khan, M.D, and, overseveral days, by the defendant Cesar Florita, M.D., for her psychiatric condition. On August 23,2003 Dr. Kahn discharged the decedent pursuant to Dr. Florita's recommendation. Dr. Floritaprescribed several medications to address the decedent's anxiety, and made arrangements withthe [*2]plaintiff, the decedent's husband, for the decedent to getoutpatient treatment.
Two days later, the plaintiff found the decedent dead in their bathtub, having drowned.Although the drugs Fiorcet and Tylenol were found in her system, the parties' experts offeredconflicting conclusions as to whether she ingested the drugs in amounts sufficient to havecontributed to her death.
The plaintiff thereafter brought this action against the defendants, alleging medicalmalpractice. Dr. Khan moved, and Dr. Florita and South Nassau separately moved, for summaryjudgment dismissing the complaint insofar as asserted against them. In an order dated September28, 2007, the Supreme Court, inter alia, granted the motions, finding that Dr. Khan, Dr. Florita,and South Nassau each established, prima facie, that they were entitled to judgment as a matterof law. The court also found that the expert opinions offered by the plaintiff were conclusory,and therefore insufficient to raise a triable issue of fact in opposition. The plaintiff appeals. Weaffirm the order insofar as appealed from.
"To establish a prima facie case of liability in a medical malpractice action, a plaintiff mustprove (1) the standard of care in the locality where the treatment occurred, (2) that the defendantbreached that standard of care, and (3) that the breach of the standard was the proximate cause ofinjury" (Berger v Becker, 272 AD2d 565, 565 [2000] [citation omitted]; see Alvarezv Prospect Hosp., 68 NY2d 320 [1986]; Nichols v Stamer, 49 AD3d 832 [2008]). "Expert testimony isnecessary to prove a deviation from accepted standards of medical care and to establishproximate cause" (Lyons v McCauley, 252 AD2d 516, 517 [1998] [citations omitted],citing Koehler v Schwartz, 48 NY2d 807 [1979]).
Dr. Khan established his entitlement to judgment as a matter of law by submitting theaffidavit of an expert who opined that Dr. Khan conformed to good and accepted practices intreating the decedent and in relying on Dr. Florita's advice that the decedent should bedischarged since there was no medical condition which precluded her discharge. The expertopinion offered by the plaintiff in opposition was conclusory, and therefore insufficient to raise atriable issue of fact (see Brady vBisogno & Meyerson, 32 AD3d 410 [2006]; Schrader v Sunnyside Corp., 297AD2d 369, 371 [2002]; see generally Zuckerman v City of New York, 49 NY2d 557,562 [1980]).
Dr. Florita and South Nassau demonstrated their prima facie entitlement to judgment as amatter of law by submitting the affirmation of an expert psychiatrist, who concluded that Dr.Florita properly recommended the decedent's discharge after examining her throughout herhospitalization. In opposition, the plaintiff's expert psychiatrist concluded that Dr. Floritadeparted from the accepted practices used to determine when to discharge psychiatric patients,but failed to articulate what those accepted practices were, and how Dr. Florita deviated fromthem. Thus, the plaintiff submitted only conclusory assertions that were insufficient to raise atriable issue of fact (see Brady vBisogno & Meyerson, 32 AD3d 410 [2006]; Schrader v Sunnyside Corp., 297AD2d 369 [2002]).
Therefore, the Supreme Court properly granted Dr. Khan's motion, and the separate motionof Dr. Florita and South Nassau, for summary judgment dismissing the complaint insofar asasserted against them.
In view of the foregoing, we do not address the parties' remaining contentions. Skelos, J.P.,Fisher, Leventhal and Lott, JJ., concur. [See 2007 NY Slip Op 33311(U).]