| Pigut v Leary |
| 2009 NY Slip Op 05456 [64 AD3d 1182] |
| July 2, 2009 |
| Appellate Division, Fourth Department |
| Jennifer Pigut, as Administrator of the Estate of Lawrence D.McLellan, Sr., Deceased, Respondent, v Daniel A. Leary, M.D., et al., Defendants, and AbbottAnesthesiologist Associates, P.C., et al., Appellants. |
—[*1] Brian P. Fitzgerald, P.C., Buffalo (Brian P. Fitzgerald of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), enteredOctober 10, 2008. The order, insofar as appealed from, denied in part the motion of, inter alia,defendants Abbott Anesthesiologist Associates, P.C. and Gregory V. Tobias, M.D. for summaryjudgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion is granted in its entirety and the complaint against defendantsAbbott Anesthesiologist Associates, P.C. and Gregory V. Tobias, M.D. is dismissed.
Memorandum: Supreme Court erred in denying those parts of the motion of, inter alia,Abbott Anesthesiologist Associates, P.C. and Gregory V. Tobias, M.D. (defendants) forsummary judgment dismissing the complaint against them in this medical malpractice actionseeking damages for the wrongful death of plaintiff's decedent. Defendants met their initialburden by submitting the affidavit of an expert who stated that Tobias, in performing hisprofessional function of intubating decedent at the request of the physician supervisingdecedent's care, did not depart from the accepted standard of care (see Lake v Kaleida Health, 59 AD3d966 [2009]; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Theaffidavit of plaintiff's expert submitted in opposition to the motion is conclusory and fails to raisea triable issue of fact (see generallyBowman v Chasky, 30 AD3d 552 [2006]). "Under these circumstances—i.e.,where [decedent] was under the care of a different physician, [Tobias] was consulted to [intubatedecedent]. . . and no evidence has been submitted that . . . [decedent'spost-operative acidosis and hypotension] had gone uninvestigated or untreated—Tobias]had no duty to scan [decedent's] chart for irregularities outside the scope of that treatment or toact upon them" (Dombroski v SamaritanHosp., 47 AD3d 80, 86 [2007]). In any event, the affidavit of plaintiff's expert fails[*2]to establish that the alleged departures from acceptedstandards of care by Tobias were a proximate cause of injury to or the death of decedent (see Mosezhnik v Berenstein, 33 AD3d895, 896 [2006]; Bowman, 30 AD3d 552 [2006]; see also Selmensberger v KaleidaHealth, 45 AD3d 1435 [2007]). We therefore reverse the order insofar as appealedfrom, grant the motion in its entirety and dismiss the complaint against defendants.Present—Hurlbutt, J.P., Martoche, Centra, Green and Gorski, JJ.