| O'Shea v Buffalo Med. Group, P.C. |
| 2009 NY Slip Op 05416 [64 AD3d 1140] |
| July 2, 2009 |
| Appellate Division, Fourth Department |
| Timothy D. O'Shea et al., Respondents, v Buffalo MedicalGroup, P.C., et al., Appellants. |
—[*1] Hogan Willig, PLLC, Amherst (John B. Licata of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), enteredFebruary 21, 2008 in a medical malpractice action. The order, insofar as appealed from, deniedthat part of defendants' motion for summary judgment dismissing the complaint againstdefendant Blaze Sekovski, M.D.
It is hereby ordered that the order insofar as appealed from is reversed on the law withoutcosts, the motion is granted in part, and the complaint against defendant Blaze Sekovski, M.D. isdismissed.
Memorandum: As limited by their brief, defendants appeal from an order insofar as it deniedthat part of their motion for summary judgment dismissing the complaint against BlazeSekovski, M.D. (defendant) in this medical malpractice action. We agree with defendants thatSupreme Court erred in denying that part of their motion. "On a motion for summary judgment, adefendant doctor has the burden of establishing the absence of any departure from good andaccepted medical practice or that the plaintiff was not injured thereby" (Murray v Hirsch, 58 AD3d 701,702 [2009], lv denied 12 NY3d 709 [2009]). Here, defendants met their burden bysubmitting the affidavit of defendant establishing that his administration of a stress test toplaintiff Timothy D. O'Shea was consistent with the applicable standard of care (see generally Swezey v Montague Rehab& Pain Mgt., P.C., 59 AD3d 431, 433 [2009]; Kremer v Buffalo Gen. Hosp.,269 AD2d 744 [2000]). The burden then shifted to plaintiffs to raise triable issues of fact bysubmitting a physician's affidavit both " 'attesting to a departure from accepted practice andcontaining the attesting [physician's] opinion that the defendant's omissions or departures were acompetent producing cause of the injury' " (Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]; seeMurray, 58 AD3d at 702-703;Poblocki v Todoro, 49 AD3d 1239 [2008]; Perro v Schappert, 47 AD3d 694 [2008]; DeCintio v Lawrence Hosp., 25 AD3d320 [2006]; Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916, 917 [2000], lvdenied 95 NY2d 751 [2000]). We conclude that, although the affirmation of plaintiffs' expertraises a triable issue of fact concerning a departure from accepted practice, the affirmation ismerely conclusory with respect [*2]to the issue of proximatecause and thus is insufficient to defeat the motion insofar as it seeks summary judgmentdismissing the complaint against defendant (see Selmensberger v Kaleida Health, 45 AD3d 1435, 1436 [2007];Rebozo v Wilen, 41 AD3d457, 459 [2007]; Mosezhnik, 33 AD3d at 897).
All concur except Green and Gorski, JJ., who dissent and vote to affirm in the followingmemorandum.
Green and Gorski, JJ. (dissenting). We respectfully dissent, and would affirm. We agree withthe majority that the affidavit of Blaze Sekovski, M.D. (defendant) was sufficient to establishthat his administration of the stress test to Timothy D. O'Shea (plaintiff) was consistent with theapplicable standard of care. Plaintiffs, however, do not dispute that defendant's administration ofthe test and interpretation of the result were consistent with the applicable standard of care.Rather, plaintiffs allege that defendant was negligent in making an incorrect diagnosis and givingerroneous advice to plaintiff. Plaintiffs further allege that it was foreseeable that plaintiff would,and did in fact, rely on defendant's advice and that, as a result, the correct diagnosis of plaintiff'scancerous brain tumor was delayed (see generally Heller v Peekskill Community Hosp.,198 AD2d 265, 266 [1993]; Hickey v Travelers Ins. Co., 158 AD2d 112, 115 [1990]).Defendants' motion for summary judgment dismissing the complaint thus was properly deniedinsofar as it sought summary judgment dismissing the complaint against defendant becausedefendants' submissions fail even to address those allegations (see generally Moreira v City of NewYork, 4 AD3d 311 [2004]). We note in particular that, with respect to the issue whetherthe delay in diagnosis caused injury to plaintiff, defendants failed to meet their initial burden ofestablishing their entitlement to judgment as a matter of law (see Schaub v Cooper, 34 AD3d 268, 271 [2006]). We thus neednot consider the sufficiency of plaintiffs' opposing papers with respect to that issue (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).Present—Scudder, P.J., Hurlbutt, Peradotto, Green and Gorski, JJ.