| Lowhar v Eva Stern 500, LLC |
| 2010 NY Slip Op 00821 [70 AD3d 654] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Isis Lowhar, Appellant, v Eva Stern 500, LLC, et al.,Defendants, and New York Methodist Hospital et al., Respondents. |
—[*1] Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro,Jr., and Patricia D'Alvia of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appealsfrom a judgment of the Supreme Court, Kings County (Steinhardt, J.), dated May 14, 2008,which, upon an order of the same court dated April 4, 2008, granting the motion of thedefendants New York Methodist Hospital, New York Methodist Hospital Family Health Center,and Park Slope Pediatric Medicine, P.C., for summary judgment dismissing the complaintinsofar as asserted against them, dismissed the complaint insofar as asserted against thosedefendants.
Ordered that the judgment is affirmed, with costs.
The infant plaintiff, by her mother, commenced this action, inter alia, to recover damages formedical malpractice against, among others, the defendants New York Methodist Hospital, NewYork Methodist Hospital Family Health Center, and Park Slope Pediatric Medicine, P.C.(hereinafter collectively the medical defendants). The infant plaintiff alleged that she had beendiagnosed with lead poisoning, and that she had sustained injuries as a result of the poisoning.She claimed, inter alia, that the medical defendants committed medical malpractice by failing toproperly screen and test her for lead poisoning prior to the diagnosis. The medical defendantsmoved for summary judgment dismissing the complaint insofar as asserted against them. TheSupreme Court granted the medical defendants' motion. We affirm.
" 'The requisite elements of proof in a medical malpractice action are a deviation ordeparture from accepted community standards of practice and evidence that such departure was aproximate cause of injury or damage' " (Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563, 565 [2009],quoting Geffner v North Shore Univ.Hosp., 57 AD3d 839, 842 [2008]). " 'On a motion for summary judgment, a defendantdoctor has the burden of establishing the absence of any departure from good and acceptedmedical practice or that the plaintiff was not injured thereby' " (Flanagan v Catskill RegionalMed. Ctr., 65 AD3d at 565, quoting Rebozo v Wilen, 41 AD3d 457, 458 [2007]). " 'In opposition, theplaintiff must submit a physician's affidavit attesting to the defendant's departure from acceptedpractice, which departure was [*2]a competent producing causeof the injury' " (Flanagan v Catskill Regional Med. Ctr., 65 AD3d at 565, quotingRebozo v Wilen, 41 AD3d at 458).
Here, the medical defendants established their prima facie entitlement to judgment as amatter of law by submitting evidence demonstrating that their care and treatment of the infantplaintiff, specifically the manner in which they screened and tested her for elevated blood leadlevels, did not depart from good and accepted medical practices. In opposition, the plaintifffailed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Accordingly, theSupreme Court properly granted the medical defendants' motion for summary judgmentdismissing the complaint insofar as asserted against them. Skelos, J.P., Santucci, Dickerson andRoman, JJ., concur. [Prior Case History: 2008 NY Slip Op 31097(U).]