| Simmons v Brooklyn Hosp. Ctr. |
| 2010 NY Slip Op 05536 [74 AD3d 1174] |
| June 22, 2010 |
| Appellate Division, Second Department |
| Ivette Sheyanne Simmons et al.,Appellants-Respondents, v Brooklyn Hospital Center et al., Respondents, andBedford-Williamsburg Medical Group et al., Respondents-Appellants, et al.,Defendants. |
—[*1] Bartlett McDonough Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro,Jr., and Adonaid C. Medina of counsel), for respondents-appellants Bedford-WilliamsburgMedical Group, Phillippe J. Day, and Central Brooklyn Medical Group, P.C. Peltz & Walker, New York, N.Y. (Michael A. Calandra, Sr., of counsel), forrespondent-appellant Leone L. Waltrous. McMahon, Martine & Gallagher, LLP, Brooklyn, N.Y. (Louis J. Martine and Roderick J.Coyne of counsel), for respondent-appellant Snehaprabha Lotlikar. Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell ofcounsel), for respondents Brooklyn Hospital Center and Patrick LeBlanc.
In an action to recover damages for medical malpractice, etc., (1) the plaintiffs appeal, aslimited by their notice of appeal and brief, from so much of an order of the Supreme Court,Kings County (Dabiri, J.), dated July 13, 2009, as granted the motion of the defendants PatrickLeBlanc and the Brooklyn Hospital Center for summary judgment dismissing the complaintinsofar as asserted against them, granted the cross motion of the defendant Leone L. Waltrous forsummary judgment dismissing the complaint insofar as asserted against her, and granted thosebranches of the cross motion of the defendants Philippe J. Day, Bedford-Williamsburg MedicalGroup, and Central Brooklyn Medical Group, P.C., which were for summary judgmentdismissing the complaint insofar as asserted against the defendant Philippe J. Day and insofar asit asserted vicarious liability claims against the defendants Bedford-Williamsburg MedicalGroup and Central Brooklyn Medical Group, P.C., for the alleged medical malpractice of thedefendants Philippe J. Day and Leone L. Waltrous, (2) the defendants Philippe J. Day,Bedford-Williamsburg Medical Group, and Central Brooklyn Medical Group, P.C., cross-appeal,as limited by their brief, from so much of the same order as denied that branch of their crossmotion which was for summary judgment dismissing the complaint insofar as it assertedvicarious liability claims against the defendants Bedford-Williamsburg Medical Group andCentral Brooklyn Medical Group, P.C., for the alleged medical [*2]malpractice of the defendant Snehaprabha Lotlikar, (3) thedefendant Leone L. Waltrous separately cross-appeals from stated portions of the same order,and (4) the defendant Snehaprabha Lotlikar separately cross-appeals from so much of the sameorder as denied her cross motion for summary judgment dismissing the complaint insofar asasserted against her.
Ordered that the cross appeal by the defendant Leone L. Waltrous is dismissed; and it isfurther,
Ordered that the order is reversed insofar as cross-appealed from by the defendants PhilippeJ. Day, Bedford-Williamsburg Medical Group, Central Brooklyn Medical Group, P.C., andSnehaprabha Lotlikar, that branch of the cross motion of the defendants Philippe J. Day,Bedford-Williamsburg Medical Group, and Central Brooklyn Medical Group, P.C., which wasfor summary judgment dismissing the complaint insofar as it asserted vicarious liability claimsagainst the defendants Bedford-Williamsburg Medical Group and Central Brooklyn MedicalGroup, P.C., for the alleged medical malpractice committed by the defendant SnehaprabhaLotlikar is granted, the cross motion of the defendant Snehaprabha Lotlikar for summaryjudgment dismissing the complaint insofar as asserted against her is granted; and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants Philippe J. Day, Leone L.Waltrous, Snehaprabha Lotlikar, Patrick LeBlanc, the Brooklyn Hospital Center,Bedford-Williamsburg Medical Group, and Central Brooklyn Medical Group, P.C., appearingseparately and filing separate briefs, payable by the plaintiffs.
The appeal by the defendant Leone L. Waltrous (hereafter Dr. Waltrous) must be dismissedon the ground that she is not aggrieved by the order appealed from (see CPLR 5511).The issues raised on Dr. Waltrous's appeal have been considered in support of her contention thatthe order appealed from should be affirmed to the extent it granted her cross motion for summaryjudgment dismissing the complaint insofar as asserted against her (see Parochial Bus Sys. vBoard of Educ. of City of N.Y., 60 NY2d 539 [1983]).
On May 23, 1994, the wife of the plaintiff Ulysses Simmons gave birth to their daughter, theinfant plaintiff, Ivette Sheyanne Simmons, following what was an otherwise normal anduncomplicated pregnancy, via vaginal delivery after about two hours of labor, at the defendantBrooklyn Hospital Center (hereafter the Hospital). However, according to medical records, theinfant plaintiff was born macrosomic (excessive size), blue and diagnosed with fetal hydrops,also referred to as hydrops fetalis (total body edema) presumably due to intrauterine infection,resulting in anemia, thrombocytopenia (low platelet count), and brain hemorrhage. The infantwas subsequently diagnosed with cerebral palsy involving global developmental delays andseizures.
The plaintiffs commenced this medical malpractice action against, among others, thedefendant Snehaprabha Lotlikar (hereinafter Dr. Lotlikar), an employee of the defendantBedford-Williamsburg Medical Group, which is also sued herein as the defendant CentralBrooklyn Medical Group, P.C. (hereafter together Bedford-Williamsburg). Dr. Lotlikar saw themother during the 34th week of pregnancy on April 13, 1994, and then again on April 27th,1994, during the 35th to 36th week of pregnancy. The plaintiffs alleged that Dr. Lotlikardeviated from accepted medical practice by failing to perform a sonogram on each of thosevisits, and that said departure was a proximate cause of the infant plaintiff's injuries because itwould have revealed her macrosomic condition and fetal hydrops, which in turn would have ledto delivery via cesarean section. Additionally, the plaintiffs commenced this action against thedefendant Philippe J. Day (hereinafter Dr. Day), who was also employed byBedford-Williamsburg, and who was involved in the first hour of the mother's labor at theHospital, alleging that he deviated from accepted medical practice by failing to perform asonogram. The plaintiffs also sought relief against Dr. Waltrous, who was also employed byBedford-Williamsburg, and who was involved in the second hour of the mother's labor andactually delivered the infant plaintiff, alleging that she deviated from accepted medical practiceby failing to perform a sonogram (id.). The plaintiffs also sought relief against Patrick[*3]LeBlanc (hereafter Dr. LeBlanc), who was employed by theHospital, and who treated the infant plaintiff immediately following her delivery in the Hospital'sneonatal intensive care unit for her hydrops fetalis condition, alleging that he deviated fromaccepted medical practice by engaging in a more conservative course of treatment, rather thanperforming aggressive treatment referred to as paracentesis and thoracentesis (the insertion oftubes into the body to remove fluids therefrom). Additionally, the plaintiffs seek to hold theHospital vicariously liable for Dr. LeBlanc's alleged medical malpractice, and to holdBedford-Williamsburg vicariously liable for the alleged medical malpractice of Drs. Lotlikar,Day, and Waltrous. These defendants moved and cross-moved for summary judgment dismissingthe complaint insofar as asserted against them.
The Supreme Court granted the motion and cross motions by Drs. Day, Waltrous, andLeBlanc, as well as the Hospital, in their entirety. However, the Supreme Court denied Dr.Lotlikar's cross motion, and consequently, awarded summary judgment only toBedford-Williamsburg dismissing the complaint to the extent it asserted vicarious liabilityclaims against Bedford-Williamsburg for the alleged medical malpractice of Drs. Day andWaltrous.
"The requisite elements of proof in a medical malpractice action are a deviation or departurefrom accepted community standards of practice and evidence that such departure was aproximate cause of injury or damage" (Geffner v North Shore Univ. Hosp., 57 AD3d839, 842 [2008]; see Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563 [2009];Rebozo v Wilen, 41 AD3d 457, 458 [2007]).
"On a motion for summary judgment, a defendant doctor has the burden of establishing theabsence of any departure from good and accepted medical practice or that the plaintiff was notinjured thereby" (Rebozo v Wilen, 41 AD3d at 458 [citations omitted]; seeThompson v Orner, 36 AD3d 791 [2007]; Keevan v Rifkin, 41 AD3d 661 [2007])."General allegations of medical malpractice, merely conclusory and unsupported by competentevidence tending to establish the essential elements of medical malpractice, are insufficient todefeat a defendant physician's summary judgment motion" (Alvarez v Prospect Hosp., 68NY2d 320, 325 [1986]; see Thompson v Orner, 36 AD3d 791 [2007]; Keevan vRifkin, 41 AD3d 661 [2007]).
In opposition to the prima facie showing of judgment as a matter of law by Drs. Day,Waltrous, and LeBlanc, the plaintiffs submitted a medical expert opinion which was conclusoryand speculative, and otherwise insufficient in form and substance to raise a triable issue of fact(see Keevan v Rifkin, 41 AD3d 661 [2007]; Ramsay v Good Samaritan Hosp.,24 AD3d 645 [2005]; Salamone v Rehman, 178 AD2d 638 [1991]; Marinaccio vSociety of N.Y. Hosp., 224 AD2d 596 [1996]). Accordingly, the Supreme Court correctlygranted summary judgment to those doctors dismissing the complaint insofar as asserted againstthem. Consequently, the Supreme Court also correctly granted summary judgment to theHospital dismissing the vicarious liability claims asserted against it pertaining to Dr. LeBlanc, aswell as the vicarious liability claims asserted against Bedford-Williamsburg pertaining to Drs.Day and Waltrous (see Furey v Kraft, 27 AD3d 416 [2006]; Dixon v Freuman,175 AD2d 910 [1991]; cf. Keitel v Kurtz, 54 AD3d 387 [2008]).
As to Dr. Lotlikar, the plaintiffs' opposition to her prima facie showing of entitlement tojudgment as a matter of law dismissing the complaint insofar as asserted against her, wasconclusory and speculative, particularly on the issue of proximate causation and, therefore, hercross motion should have been granted as well (see Keevan v Rifkin, 41 AD3d 661[2007]; Ramsay v Good Samaritan Hosp., 24 AD3d 645 [2005]; Salamone vRehman, 178 AD2d 638 [1991]; Marinaccio v Society of N.Y. Hosp., 224 AD2d596 [1996]). Specifically, the plaintiffs' medical expert's opinion that a sonogram performed atweeks 34, 35, or 36 of pregnancy would have detected hydrops fetalis, is based on thespeculative assumption that the in utero infection that caused this condition was present at thattime. Indeed, Dr. Lotlikar's expert observed that the medical record is void of any indication thatthe mother was suffering from an in utero infection during her two visits with Dr. Lotlikar.Inasmuch as summary judgment should have been awarded to Dr. Lotlikar dismissing thecomplaint insofar as asserted against her, the same applies to the vicarious liability claimsasserted against her employer, Bedford-Williamsburg, pertaining to her alleged medicalmalpractice (cf. Keitel v Kurtz, 54 AD3d 387 [2008]). Mastro, J.P., Florio, Belen andRoman, JJ., concur.