| Wilkins v Khoury |
| 2010 NY Slip Op 03435 [72 AD3d 1067] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Katheryn Ford Wilkins, Appellant, v Mona Khoury et al.,Respondents. |
—[*1] Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), forrespondents.
In an action to recover damages for medical malpractice and lack of informed consent, theplaintiff appeals from an order of the Supreme Court, Nassau County (Martin, J.), enteredJanuary 9, 2009, which granted the defendants' motion for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed, with costs.
The requisite elements of proof in a medical malpractice action are a deviation or departurefrom good and accepted medical practice and that such departure was a proximate cause of theplaintiff's injuries (see Rebozo vWilen, 41 AD3d 457, 458 [2007]). In support of that branch of the defendants' motionwhich was for summary judgment dismissing the first cause of action alleging medicalmalpractice, the defendants submitted an affidavit from a podiatry expert that was sufficient toestablish, prima facie, that they did not depart from good and accepted standards of podiatricpractice in their treatment of the plaintiff, and that any alleged departures did not proximatelycause the plaintiff's injuries (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Rebozo v Wilen, 41 AD3d at 458). Therefore, the defendants met their burden ofestablishing their entitlement to judgment as a matter of law. While the plaintiff, in opposition,raised a triable issue of fact as to whether the defendants departed from good and acceptedpodiatric practice by failing to diagnose her potentially gangrenous condition and failing toinstruct her to go to a hospital immediately for intravenous antibiotic treatment, she failed toraise a triable issue of fact as to whether the defendants' conduct was a proximate cause of herinjuries (see Brocco v Westchester Radiological Assoc., 175 AD2d 903, 904-905[1991]). The plaintiff's voluntary act of not going to the hospital for intravenous antibiotictreatment when she was instructed to do so by an orthopedic surgeon, who saw the plaintiff aftershe was treated by the defendants, was independent of and far removed from the defendants'conduct and, thus, was a superseding act which broke the causal nexus (see Pierre v Lieber, 37 AD3d 572[2007]; Brocco v Westchester Radiological Assoc., 175 AD2d at 904-905).
In support of that branch of the defendants' motion which was for summary judgmentdismissing the second cause of action alleging lack of informed consent, the defendantsestablished their entitlement to judgment as a matter of law. In light of the plaintiff's failure toraise a triable issue of fact as [*2]to proximate cause, the plaintiffcannot sustain a cause of action predicated on lack of informed consent (see Thompson v Orner, 36 AD3d791, 792-793 [2007]; Viola vBlanco, 1 AD3d 506 [2003]).
Accordingly, the Supreme Court properly granted the defendants' motion for summaryjudgment dismissing the complaint. Skelos, J.P., Santucci, Lott and Sgroi, JJ., concur.