| Hamilton v Good Samaritan Hosp. of Suffern, N.Y. |
| 2010 NY Slip Op 03871 [73 AD3d 697] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Eileen Hamilton, Respondent, v Good Samaritan Hospitalof Suffern, N.Y., et al., Defendants, and Rockland Pulmonary and Medical Associates, P.C., etal., Appellants. |
—[*1] Mark D. Lefkowitz, New York, N.Y., for respondent.
In an action to recover damages for wrongful death and medical malpractice, etc., thedefendants Rockland Pulmonary and Medical Associates, P.C., Clement Y. Osei, and StephenMenitove appeal from an order of the Supreme Court, Rockland County (Berliner, J.), dated May29, 2009, which denied their motion for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsRockland Pulmonary and Medical Associates, P.C., Clement Y. Osei, and Stephen Menitove forsummary judgment dismissing the complaint insofar as asserted against them is granted.
The plaintiff's decedent was admitted to Good Samaritan Hospital because he was sufferingfrom pneumonia. The defendant Clement Y. Osei, a pulmonologist, was the admitting physician.Since the decedent had a history of heart disease, Osei consulted with the decedent's cardiologist,the defendant Richard Roth. Roth and his colleagues, the defendants Ainat Beniaminovitz andMichael Muschel, monitored the decedent's cardiac condition while he was in the hospital. Theyfailed to detect the decedent's congestive heart failure. The decedent died of congestive heartfailure approximately three weeks after his discharge from the hospital. The plaintiff commencedthis action, alleging, inter alia, that Osei, his fellow pulmonologist Stephen Menitove, and theirprofessional corporation, Rockland Pulmonary and Medical Associates, P.C. (hereinaftercollectively the pulmonologists), committed medical malpractice by failing to diagnose and treatthe decedent's congestive heart failure.
The requisite elements of proof in a medical malpractice action are a deviation or departurefrom accepted practice and evidence that such departure was a proximate cause of injury ordamage (see Anderson v Lamaute, 306 AD2d 232, 233 [2003]; Prete vRafla-Demetrious, 224 AD2d 674, 675 [1996]). "In a medical malpractice action, a plaintiff,in opposition to a defendant physician's summary judgment motion, must submit evidentiaryfacts or materials to rebut the prima facie showing by the defendant physician that he was notnegligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact"(Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). General allegations of medicalmalpractice, merely [*2]conclusory in nature and unsupported bycompetent evidence tending to establish the essential elements of the claim, are insufficient todefeat a defendant physician's entitlement to summary judgment (see Alvarez v ProspectHosp., 68 NY2d at 325).
The expert affidavit submitted by the pulmonologists in support of their motion for summaryjudgment established, prima facie, that their treatment of the decedent was not negligent. Theydid not assume a general duty of care with regard to the care and treatment provided to thedecedent by the cardiologists (see Anderson v Lamaute, 306 AD2d at 233; Yasin vManhattan Eye, Ear & Throat Hosp., 254 AD2d 281, 282 [1998]; Donnelly v Finkel,226 AD2d 671, 672 [1996]). In his affirmation in opposition to the motion of thepulmonologists, the plaintiff's expert failed to raise a triable issue of fact as to whether thepulmonologists departed from accepted practice, and in any event, the expert failed to raise atriable issue of fact as to whether the pulmonologists' care and treatment proximately caused thedecedent's alleged injuries (see Anderson v Lamaute, 306 AD2d at 233; Yasin vManhattan Eye, Ear & Throat Hosp., 254 AD2d at 283; Bartha v Lombardo &Assoc., 212 AD2d 494 [1995]). Accordingly, the Supreme Court erred in denying thepulmonologists' motion for summary judgment dismissing the complaint insofar as assertedagainst them. Rivera, J.P., Dillon, Florio and Balkin, JJ., concur.