| Rezvani v Somnay |
| 2009 NY Slip Op 06129 [65 AD3d 537] |
| August 4, 2009 |
| Appellate Division, Second Department |
| Farnoush Rezvani et al., Respondents, v KaumudiSomnay, Appellant. |
—[*1] Friedman Friedman Chiaravalloti & Giannini, New York, N.Y. (Mariangela Chiaravallotiand Daniel Friedman of counsel), for respondents.
In an action to recover damages for medical malpractice and lack of informed consent, etc.,the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court,Kings County (Dabiri, J.), dated August 12, 2008, as denied those branches of her motion whichwere for summary judgment dismissing so much of the cause of action to recover damages formedical malpractice as was based on her failure to timely diagnose a perforated colon and thecause of action to recover damages for lack of informed consent.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant performed an endoscopic retrograde cholangiopancreatography (hereinafterERCP) on the plaintiffs' decedent, during which the decedent's colon was perforated. Thedecedent died one month later after four corrective surgeries. The plaintiffs thereaftercommenced this action alleging causes of action to recover damages for medical malpractice andlack of informed consent and a derivative cause of action by the decedent's wife. The SupremeCourt denied those branches of the defendant's motion which were for summary judgmentdismissing so much of the cause of action to recover damages for medical malpractice as wasbased on her failure to timely diagnose the perforation and the cause of action to recoverdamages for lack of informed consent. The defendant appeals.
The Supreme Court properly denied that branch of the defendant's motion which was [*2]for summary judgment dismissing so much of the cause of action torecover damages for medical malpractice as was based on her failure to timely diagnose theperforation. The defendant failed to meet her prima facie burden of demonstrating that she timelydiagnosed the perforation. The opinion of the defendant's expert that the defendant detected theperforation "immediately" after the ERCP is not sufficiently supported by the record (seeCassano v Hagstrom, 5 NY2d 643 [1959]). Further, the defendant's expert failed to establishprima facie that any alleged delay was not a proximate cause of injury (see Nwabude vSisters of Charity Health Care Sys. Corp., 309 AD2d 909 [2003]; Scanga v FamilyPractice Assoc. of Rockland, 302 AD2d 443 [2003]).
The Supreme Court also properly denied that branch of the defendant's motion which was forsummary judgment dismissing the cause of action to recover damages for lack of informedconsent. The defendant failed to meet her prima facie burden on that branch of her motion, as sheoffered only a generic consent form signed by the decedent on the date of the procedure, as wellas an operative report which summarized the information allegedly provided to the decedent.The defendant failed, however, to offer her deposition testimony, or that of any other person withknowledge, establishing the specific risks, benefits, and alternatives of which decedent allegedlywas informed (cf. Lynn G. v Hugo, 96 NY2d 306 [2001]; Luu v Paskowski, 57 AD3d 856[2008]; see Colon v Klindt, 302 AD2d 551 [2003]).
Under these circumstances, we need not consider whether the plaintiffs' papers in oppositionwere sufficient to raise a triable issue of fact (see Chaplin v Taylor, 273 AD2d 188[2000]). Rivera, J.P., Miller, Balkin and Austin, JJ., concur.