| Melendez v Parkchester Med. Servs., P.C. |
| 2010 NY Slip Op 06715 [76 AD3d 927] |
| September 28, 2010 |
| Appellate Division, First Department |
| Frances Melendez, as Administrator of the Estate of Nury Noboa,Also Known as Nury P. Noboa Melendez, Deceased, et al., Appellant, v ParkchesterMedical Services, P.C., et al., Defendants, and Montefiore Medical Center et al.,Respondents. |
—[*1] Garson, DeCorato & Cohen, LLP, New York (Jason D. Turken of counsel), forrespondents.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 1, 2009,which granted the motion by the Montefiore defendants for summary judgment dismissing thecomplaint against them, unanimously affirmed, without costs.
"The proponent of a summary judgment motion must make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence to [demonstrate theabsence of] any material issues of fact" (Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]). Once this showing is made, the burden shifts to the opposing party toproduce evidentiary proof in admissible form sufficient to establish the existence of triable issuesof fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In a medicalmalpractice action, this burden is met by a medical expert's demonstration that the defendant'sactions were a departure from the accepted standard of care in the medical community, and aproximate cause—i.e., a substantial factor—in bringing about the injury (Sisko vNew York Hosp., 231 AD2d 420, 422 [1996], lv dismissed 89 NY2d 982 [1997]; see also Coronel v New York City Health& Hosps. Corp., 47 AD3d 456 [2008]). For this purpose, general allegations of medicalmalpractice that are conclusory and unsupported by competent evidence tending to establish theessential elements of medical malpractice are insufficient to defeat a malpractice defendant'smotion for summary dismissal (Fileccia v Massapequa Gen. Hosp., 99 AD2d 796 [1984],affd 63 NY2d 639 [1984]).
Montefiore's submissions in support of its motion met the required prima facie showing towarrant judgment as a matter of law. In May 1997, plaintiff's decedent presented at Montefiorecomplaining only of hemorrhoids, without any recorded complaints as to abdominal pain or othercolorectal problems. An anoscopy was performed, revealing no internal hemorrhoids, and thedecedent was conservatively treated. Two years later, in June 1999, decedent again presented toMontefiore complaining of hemorrhoids and rectal bleeding for three days, and this time a2½-centimeter thrombosed hemorrhoid was found and evacuated under anesthesia. OnAugust 27, 1999, only after the decedent returned to Montefiore with new [*2]complaints of rectal bleeding, a 10-pound weight loss and nohemorrhoids, was she referred for a colonoscopy and ultimately diagnosed with colon cancer.According to Montefiore's expert, the three-month gap between commencement of the decedent'streatment for a thrombosed hemorrhoid and her cancer diagnosis did not negatively impact on hersubsequent treatment or chances for survival, inasmuch as "[w]ell differentiated colonicadenocarcinoma is a slow growing cancer and three months is insufficient time for Ms. Noboa'soutcome to have been effected [sic] in any way."
In opposition, plaintiff failed to rebut this evidence. She argues that Montefiore failed toelicit the decedent's gastrointestinal history. But the absence of a notation in the hospital recordsindicating that the decedent was questioned about her pertinent prior medical history is not proofthat she was not so questioned (Krapivka v Maimonides Med. Ctr., 119 AD2d 801[1986]; see also Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682, 684 [1981]). Plaintiff'sassertion to that effect is speculative, particularly in light of the detailed, three-page medicalhistory that was recorded during the decedent's initial intake.
Plaintiff's reliance on the Noseworthy doctrine is misplaced. While a plaintiff in awrongful death action "is not held to as high a degree of proof of the cause of action as where aninjured plaintiff can himself describe the occurrence" (Noseworthy v City of New York,298 NY 76, 80 [1948]), that doctrine can only be invoked where the plaintiff first makes ashowing of facts from which negligence can be inferred (Stankowski v Kim, 286 AD2d282, 284 [2001], appeal dismissed 97 NY2d 677 [2001]). Plaintiff has failed to providesuch proof.
Plaintiff's expert asserted that Montefiore departed from the accepted standard of medicalpractice by improperly performing a rectal examination and an anoscopy, instead of acolonoscopy. However, until 1999, Montefiore was not actively treating the decedent for"colorectal problems" because hers was a straightforward case of hemorrhoids. Plaintiff'sargument of insufficient examination based on an anoscopy, and that the cancerous polyps wouldlikely have been detected and the decedent's course of treatment altered had Montefioreperformed a colonoscopy, is unavailing. Concur—Andrias, J.P., Saxe, McGuire,Moskowitz and Freedman, JJ.