| Carter v Tana |
| 2009 NY Slip Op 10011 [68 AD3d 1577] |
| December 31, 2009 |
| Appellate Division, Third Department |
| Norman Carter, Respondent, v Zenaida Tana et al., Defendants,and Alison Spear et al., Appellants. |
—[*1] Thuillez, Ford, Gold, Butler & Young, L.L.P., Albany (William C. Firth of counsel), forMohammed Monzur and another, appellants. Napierski, Vandenburgh & Napierski, L.L.P., Albany (Thomas J. O'Connor of counsel), forJohn Bennett and others, appellants. Law Office of Lawrence P. Biondi, White Plains (Richard Mandel, Garden City, of counsel),for respondent.
Spain, J. Appeal from an order of the Supreme Court (McDonough, J.), entered December10, 2008 in Albany County, which, among other things, denied certain defendants' motions forsummary judgment dismissing the complaint.
After visiting his primary care physician in February, March and April 2005 complaining ofswelling in both legs, plaintiff was referred to defendant Mohammed Monzur, a nephrologist andpartner with defendant Capital District Renal Physicians, P.C. (hereinafter CDRP), to rule outpossible nephrotic syndrome, a disease of the kidney. Upon plaintiff's initial visit in April 2005,Monzur noted a two plus bilateral pitting edema of plaintiff's legs and [*2]prescribed a diuretic for the swelling. On May 6, 2005 whenplaintiff again saw Monzur, he continued to complain of swelling in both legs. Monzur notedthat plaintiff had increased to four plus bilateral pitting edema and, based upon various bloodwork and results of a kidney biopsy, diagnosed plaintiff with minimal change disease (a kidneydisorder) for which he prescribed various medications and scheduled a follow-up visit in eightweeks.
Several days later, on May 17, 2005, plaintiff presented at defendant Albany MemorialHospital where he was seen by defendant Alison Spear, an emergency room physician. Plaintiff'sprimary complaint was sudden and worsening swelling in both legs and feet. He also reportedthat two days earlier he experienced shortness of breath upon exertion and severe but brief chestpains. Spear examined plaintiff, noting bilateral pitting edema, no chest pain and slightlyelevated troponin, indicative of possible cardiac event, and requested that defendant RamonFabregas, a cardiologist and partner with defendant Primary Care Physicians, PLLC (hereinafterPCP), evaluate plaintiff. Based upon plaintiff's worsening leg swelling, history of kidney disease,discomfort in his left foot suggesting claudication of his left lower extremity and elevatedtroponin level, Fabregas admitted him to the hospital for observation due to a possiblemyocardial infarction. Defendant John Bennett, also a cardiologist and PCP partner, oversawplaintiff's treatment while in the hospital and ultimately diagnosed an elevated troponin level andchest pain of an unclear etiology, ruled out a myocardial infarction and released plaintiff on May19, 2005.
Thereafter, on May 28, 2005, plaintiff reported to his primary care physician due toincreased swelling and multiple blisters on his left leg, which the physician lanced and bandaged.On May 31, 2005, plaintiff notified Monzur's office of his recent visit with his primary carephysician and complained of continuing swelling, blistering and an inability to bend his left leg.He was given the next available appointment on June 2, 2005, at which time Monzur noted thatplaintiff's left big toe was gangrenous and cold and immediately referred him to an emergencyroom to be evaluated by a vascular surgeon. Plaintiff was eventually diagnosed with peripheralvascular insufficiency and left lower extremity ischemia with skin ulceration. After attempts torestore circulation in his leg proved unsuccessful, plaintiff underwent an above-the-kneeamputation of his left leg.
Plaintiff commenced this medical malpractice and negligence action alleging that defendants'failure to properly examine and diagnose a peripheral vascular condition, for which referral andtreatment of the condition was delayed, resulted in the above-the-knee amputation of his left leg.Following joinder of issue, Spear, Monzur, CDRP, Fabregas, Bennett and PCP (hereinaftercollectively referred to as defendants)[FN*]moved for summary judgment dismissing the complaint. Supreme Court denied the motions,finding that the conflicting medical opinion of plaintiff's expert raised issues of fact precludingsummary judgment. This appeal ensued.
Initially, there is no dispute that defendants met their initial burden of establishing a primafacie entitlement to summary judgment by submitting affidavits from experts in their [*3]respective medical fields who opined, with a reasonable degree ofmedical certainty, that given plaintiff's presentation of symptoms and recent history of nephroticsyndrome, defendants did not depart from the standard of medical care in treating plaintiff aslimited by their respective medical specialties. Accordingly, the burden shifted to plaintiff topresent expert medical opinion evidence that there was a deviation from the accepted standard ofcare and that this departure was a proximate cause of plaintiff's injury (see Daugharty vMarshall, 60 AD3d 1219, 1221 [2009]; Bell v Ellis Hosp., 50 AD3d 1240, 1241[2008]).
In that regard, plaintiff submitted a redacted affidavit of a physician licensed to practicemedicine in New York and certified by the American Board of Surgery with concentrations ingeneral and vascular surgery. The affidavit addressed each defendant physician separately,making factual references to their individual treatment and care of plaintiff. Given his review ofthe medical records, depositions and his own training and experience, it was his opinion, with areasonable degree of medical certainty, that each defendant physician "departed from good andacceptable standards of medical care and treatment" that was a substantial factor in causingand/or contributing to the loss of plaintiff's left leg. According to plaintiff's expert, each of thefour defendant physicians failed to obtain and/or heed plaintiff's proper and thorough clinical andmedical history. The expert also set forth specific symptoms plaintiff presented with at eachexamination that are indicative of vascular disease, as well as noted specific factors in plaintiff'smedical history that increased his risk for peripheral vascular insufficiency. Given plaintiff'scomplaints and history, plaintiff's expert essentially opined that a thorough examination ofplaintiff's lower extremities for vascular disease should have ensued, noting specific diagnostictests, and that a prompt referral for a vascular consult should have been made. Additionally,plaintiff's expert indicated that this delay in examination, treatment and consultation forperipheral vascular disease—which he represented was present in May 2005—was asubstantial factor in causing or contributing to the amputation of plaintiff's leg.
We are unpersuaded by defendants' contentions that the expert's affirmation was speculativeand conclusory and, therefore, insufficient to defeat the motions for summary judgment."Although '[g]eneral allegations of medical malpractice, merely conclusory and unsupported bycompetent evidence tending to establish the essential elements of medical malpractice, areinsufficient to defeat [a] defendant physician's summary judgment motion' " (Bell v EllisHosp., 50 AD3d at 1242, quoting Alvarez v Prospect Hosp., 68 NY2d 320, 325[1986]), here, we find that the expert's affirmation sufficiently set forth the essential elements ofplaintiff's claim. Furthermore, although plaintiff's expert did not practice in any of defendantphysicians' particularized medical fields, given the nature of the medical subject matter of themalpractice action, there is a sufficient basis from which to infer that the expert's opinionregarding examination and treatment of plaintiff is reliable (see Bell v Ellis Hosp., 50AD3d at 1242). Contrary to defendants' contentions, we find that the specialized skills andexpertise of plaintiff's expert were sufficiently set forth in the affidavit, and "any alleged lack ofskill or experience goes to the weight to be given to the opinion, not its admissibility" (Bell vEllis Hosp., 50 AD3d at 1242).
In light of the foregoing, we find that summary judgment was properly denied.
Cardona, P.J., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: Plaintiff's medical malpracticeand negligence actions against his primary care physician, the practice with which she wasassociated, another physician in that practice, as well as Albany Memorial Hospital werediscontinued during the pendency of this appeal.