| Chipley v Stephenson |
| 2010 NY Slip Op 03573 [72 AD3d 1548] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| Morgan L. Chipley, Individually and as Mother and NaturalGuardian of Kadin A. Brown, an Infant, Appellant, v Grant W. Stephenson, M.D.,Individually and Doing Business as Dr. Grant W. Stephenson Family Medicine, et al.,Respondents. |
—[*1] Gibson, McAskill & Crosby, LLP, Buffalo (Angelo S. Gambino of counsel), fordefendant-respondent Grant W. Stephenson, M.D., individually and doing business as Dr. GrantW. Stephenson Family Medicine. Roach, Brown, McCarthy & Gruber, P.C., Buffalo (J. Mark Gruber of counsel), fordefendant-respondent Westfield Memorial Hospital, Inc. Damon Morey LLP, Buffalo (Jesse B. Baldwin of counsel), for defendant-respondentRichard J. DeFranco, M.D., individually and doing business as G&P Gyne Care and/or G&PGyne Care, Inc.
Appeal from an order of the Supreme Court, Chautauqua County (Timothy J. Walker, A.J.),entered November 25, 2008 in a medical malpractice action. The order granted defendants'motions for summary judgment.
It is hereby ordered that the order so appealed from is modified on the law by denying themotions of defendants Grant W. Stephenson, M.D., individually and doing business as Dr. GrantW. Stephenson Family Medicine, and Richard J. DeFranco, M.D., individually and doingbusiness as G&P Gyne Care and/or G&P Gyne Care, Inc., and reinstating the complaint againstthem and as modified the order is affirmed without costs.[*2]
Memorandum: Plaintiff commenced this medicalmalpractice action, individually and on behalf of her son, seeking damages for injuries sustainedwhen plaintiff gave birth to her son. We agree with plaintiff that Supreme Court erred in grantingthe motions of defendants Grant W. Stephenson, M.D., individually and doing business as Dr.Grant W. Stephenson Family Medicine, and Richard J. DeFranco, M.D., individually and doingbusiness as G&P Gynecare, P.C., incorrectly sued as G&P Gyne Care and/or G&P Gyne Care,Inc., for summary judgment dismissing the complaint against them, and we thus modify theorder accordingly. Although those defendants met their initial burden of establishing theirentitlement to judgment as a matter of law, we conclude that the affidavit of plaintiff's expertsubmitted in opposition to the respective motions raised triable issues of fact sufficient to defeatthe motions (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).We reject Stephenson's contention, as an alternative ground for affirmance (see generallyParochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]; Cataract Metal Finishing, Inc. v City ofNiagara Falls, 31 AD3d 1129, 1130 [2006]), that plaintiff's expert was not qualified torender an opinion with respect to Stephenson's treatment of plaintiff and her son (cf. Geffner v North Shore Univ. Hosp.,57 AD3d 839, 842 [2008]). Indeed, plaintiff's expert had 40 years of experience in the fieldof obstetrics and gynecology and was affiliated with the hospital where the delivery occurred forthe purpose of consulting on problematic cases in that field. We also reject the contention ofDeFranco, as an alternative ground for affirmance, that the court abused its discretion inconsidering plaintiff's opposing papers (cf. Mosheyeva v Distefano, 288 AD2d 448[2001]). Although we agree with DeFranco that plaintiff's expert relied on facts not in evidenceat one point in his affirmation, we conclude that the remainder of that affirmation was properlybased on the facts in evidence. We thus conclude that the opinion of plaintiff's expert that theinjuries sustained by plaintiff and her son " 'were caused by a deviation from relevant industrystandards . . . preclude[s] a grant of summary judgment in favor of [DeFranco]' "(Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; see Tuorto v Jadali, 62 AD3d 784[2009]; see also Cooper v St. Vincent's Hosp. of N.Y., 290 AD2d 358 [2002]). Contraryto DeFranco's further contention, plaintiff's bill of particulars in response to the demand byDeFranco was not insufficient inasmuch as it provided the requisite general statement " 'of theacts or omissions constituting the negligence claimed' " (Stidham v Clerk, 57 AD3d 1369, 1369 [2008]).
We reject, however, plaintiff's contention that the court erred in granting that part of themotion of defendant Westfield Memorial Hospital, Inc. (WMH) for summary judgmentdismissing the claim that it violated the Emergency Medical Treatment and Active Labor Act(EMTALA) (42 USC § 1395dd). Even assuming, arguendo, that the EMTALA claim wasproperly pleaded, we agree with the court that it is time-barred inasmuch as the action wascommenced approximately two years and six months after the EMTALA claim accrued(see 42 USC § 1395dd [d] [2] [C]). Contrary to plaintiff's further contention, thetoll for infancy does not apply to extend the statute of limitations with respect to that claim(see Vogel v Linde, 23 F3d 78, 80 [1994]). In any event, the EMTALA claim is withoutmerit because the record contains no evidence of disparate treatment of plaintiff by WMH(see generally Lidge v Niagara Falls Mem. Med. Ctr. [appeal No. 2], 17 AD3d 1033,1035 [2005]).
Finally, we note that plaintiff does not contend that the court erred in granting those parts ofthe motion for summary judgment dismissing the negligence and breach of contract causes ofaction against WMH, and she therefore has abandoned any issues concerning those causes ofaction (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]).
All concur except Smith, J.P., who dissents in part and votes to affirm in the followingmemorandum.
Smith, J.P. (dissenting in part). I respectfully disagree with the majority's conclusion thatplaintiff raised triable issues of fact in opposition to the motions of the Stephenson and DeFrancodefendants (collectively, defendants) for summary judgment dismissing the complaint againstthem. I therefore dissent in part and would [*3]affirm the order.
In support of their motion, defendants had the initial "burden of establishing the absence ofany departure from good and accepted medical practice or that the plaintiff [and her son were]not injured thereby" (Murray vHirsch, 58 AD3d 701, 702 [2009], lv denied 12 NY3d 709 [2009]; see O'Shea v Buffalo Med. Group,P.C., 64 AD3d 1140 [2009], appeal dismissed 13 NY3d 834 [2009]). Asplaintiff correctly concedes, they met that burden, whereupon "[t]he burden then shifted toplaintiff[ ] to raise triable issues of fact by submitting a physician's affidavit [or affirmation] bothattesting to a departure from accepted practice and containing the attesting [physician's] opinionthat the defendant[s'] omissions or departures were a competent producing cause of theinjur[ies]" (O'Shea, 64 AD3d at 1141 [internal quotation marks omitted]). Contrary tothe contention of plaintiff, she failed to raise the requisite triable issues of fact by submitting herexpert's affirmation in opposition to defendants' motions.
The affirmation of plaintiff's expert identified several alleged failures of defendants,including their failure to order an amniocentesis, to have a "backup" plan for plaintiff's cesareansection, and to advise plaintiff to go immediately to another hospital when she went into labor.The expert failed, however, to identify a standard of care requiring that such steps be taken or toindicate that the failure to take such steps was a departure from accepted practice. Where, ashere, "the expert's ultimate assertions are speculative or unsupported by any evidentiaryfoundation . . . , the opinion should be given no probative force and is insufficientto withstand summary judgment" (Diaz v New York Downtown Hosp., 99 NY2d 542,544 [2002]; see Rodriguez v MontefioreMed. Ctr., 28 AD3d 357 [2006]). In any event, even assuming, arguendo, that theaffirmation established that defendants' treatment constituted a departure from accepted practice,I conclude that plaintiff failed to raise a triable issue of fact sufficient to defeat the motionsbecause her expert did not ultimately conclude that defendants' omissions or departures were aproximate cause of the injuries sustained by plaintiff and her son (see Pigut v Leary, 64 AD3d 1182[2009]; Murray v Hirsch, 58 AD3d701, 703 [2009]; Mosezhnik vBerenstein, 33 AD3d 895, 897 [2006]; cf. Selmensberger v Kaleida Health, 45 AD3d 1435, 1436 [2007]).Present—Smith, J.P., Centra, Fahey and Pine, JJ.