| Caulkins v Vicinanzo |
| 2010 NY Slip Op 01727 [71 AD3d 1224] |
| March 4, 2010 |
| Appellate Division, Third Department |
| Wendy S. Caulkins, Appellant, v Lisa A. Vicinanzo et al.,Respondents. |
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Peters, J.P. Appeal from a judgment of the Supreme Court (Zwack, J.), entered April 23,2009 in Rensselaer County, which granted defendants' motions for summary judgmentdismissing the complaint.
Plaintiff sustained injuries to her neck on two separate occasions between 1993 and 1994and was found to have herniated discs as well as disc degeneration at C5-6 and C6-7. Over thenext 10 years she was treated for, among other things, chronic neck pain and spinal discomfortby several physicians and chiropractors. Between 2000 and 2004, plaintiff treated regularly withchiropractors defendant Lisa A. Vicinanzo and defendant Kathleen Bauman-Brown, withtreatments varying in frequency from once a month to multiple times per week. On September20, 2004 and September 24, 2004, Vicinanzo treated plaintiff by performing chiropracticmanipulations of her spine. Despite four subsequent treatments with defendants without anyreported change of symptoms, plaintiff contacted Bauman-Brown on October 23, 2004complaining of unbearable pain, and was treated by Bauman-Brown later that day. Two dayslater, plaintiff visited her primary care physician complaining of left side neck and shoulder[*2]pain and paraesthesias down her left arm that had since goneaway. Following an MRI, plaintiff was diagnosed with cervical spondylosis with myelopathyand she underwent cervical fusion surgery.
Plaintiff thereafter commenced this malpractice action alleging that the spinal adjustmentsperformed by defendants caused her to suffer severe spinal cord injury requiring surgicalintervention. As specified in her bills of particulars, plaintiff claimed that Vicinanzo wasnegligent in failing to properly treat her on September 20, 2004 and September 24, 2004, andthat Bauman-Brown was negligent in treating her on October 23, 2003 and vicariously liable forVicinanzo's negligence. Following joinder of issue and discovery, defendants each moved forsummary judgment dismissing the complaint. Supreme Court granted the motions, finding thatthe proof submitted by plaintiff in opposition failed to raise a triable issue of fact. Plaintiff nowappeals.
As a preliminary matter, the record amply demonstrates, and plaintiff conceded at oralargument, that Supreme Court properly granted Bauman-Brown's motion for summary judgmentdismissing the complaint against her. Accordingly, the only issue before us on this appeal iswhether the award of summary judgment in favor of Vicinanzo was proper. In that regard,plaintiff does not dispute that Vicinanzo made a prima facie showing of entitlement to summaryjudgment. Therefore, in order to rebut Vicinanzo's showing, plaintiff was required to "establish[] a departure from accepted medical practice, as well as a nexus between the alleged malpracticeand [her] injury" (Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916, 917 [2000], lvdenied 95 NY2d 751 [2000]; accord Snyder v Simon, 49 AD3d 954, 956 [2008]).
In opposition to the motion, plaintiff submitted the affidavit of her expert, a licensedchiropractor, whose name was redacted. Initially, we agree with plaintiff's assertion thatSupreme Court erred in deeming the affidavit incompetent to the extent that the expert relied onunsworn MRI reports. While it is true that "[u]ncertified medical records and unsworn letters orreports are of no probative value" in opposing a summary judgment motion (Parmisani vGrasso, 218 AD2d 870, 872 [1995]; accord Lentini v Page, 5 AD3d 914, 916 [2004]), the Court ofAppeals has instructed that a sworn medical opinion that relies on unsworn MRI reportsconstitutes competent evidence (seePommells v Perez, 4 NY3d 566, 577 n 5 [2005]). Additionally, inasmuch as Vicinanzo'sexpert quoted verbatim from, discussed and relied on the unsworn MRI reports in his affidavit,plaintiff's expert was also entitled to rely upon them (see Pietrocola v Battibulli, 238AD2d 864, 866 n [1997]; see alsoWilliams v Clark, 54 AD3d 942, 943 [2008]; Ayzen v Melendez, 299 AD2d381 [2002]).
Nevertheless, we find that the expert's affidavit failed to raise a material issue of factsufficient to preclude summary judgment. "General, conclusory allegations of medicalmalpractice, based on speculation or unsupported by competent evidence, are insufficient tomeet plaintiff's burden and defeat summary judgment" (Chase v Cayuga Med. Ctr. at Ithaca, 2 AD3d 990, 990-991 [2003][citations omitted]; see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Horth vMansur, 243 AD2d 1041, 1042 [1997]). Plaintiff's expert averred that plaintiff presented toVicinanzo on September 20, 2004 with an "acute spastic non-mobile condition" that should havebeen addressed with diagnostic evaluations, such as an MRI, rather than spinal manipulations.However, the expert failed to explain that condition or why it required such treatment, and thereis no support in the record that plaintiff was in an "acute stage" when she presented for treatmenton September 20, 2004 or that her complaints on that day were different than usual.Alternatively, the expert opined that plaintiff's 1994 and 2002 MRI studies, in and of [*3]themselves, contraindicated spinal manipulations and that theadjustments performed by Vicinanzo on September 20, 2004 and September 24, 2004 were thecause of plaintiff's injuries. Yet, the summary conclusion that those two specific spinaladjustments were the cause of plaintiff's injuries is unsupported by any competent evidence. Tothat end, although the expert averred that plaintiff presented to the hospital with upper extremityneurological deficits of which she never complained or was diagnosed with prior to theSeptember 20, 2004 treatment, plaintiff's medical records clearly reveal that she experiencedparaesthesias in her left hand and arm as well as giveaway weakness in her upper left extremitylong before the chiropractic adjustments at issue. More fundamentally, the affidavit wholly failedto rebut Vicinanzo's prima facie showing that plaintiff's condition was caused by a preexistingdegenerative condition of the spine and that the abnormalities in plaintiff's spine could not haveoccurred as a result of a single chiropractic treatment or even multiple treatments, but could onlyhave occurred over the course of many years (see Gage v Dutkewych, 3 AD3d 629, 631 [2004]; Merritt vSaratoga Hosp., 298 AD2d 802, 805 [2002]; see also DiMitri v Monsouri, 302 AD2d420, 421 [2003]; see generally Pommells v Perez, 4 NY3d at 580). For these reasons, wefind that the affidavit of plaintiff's expert was insufficient to withstand summary judgment infavor of Vicinanzo.
Rose, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed, with costs.