| Wall v Flushing Hosp. Med. Ctr. |
| 2010 NY Slip Op 08725 [78 AD3d 1043] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Daniel R. Wall, Appellant, v Flushing Hospital MedicalCenter et al., Respondents. |
—[*1] Martin Clearwater & Bell, LLP, New York, N.Y. (Arjay G. Yao and Kenneth R. Larywon ofcounsel), for respondents.
In an action to recover damages for medical malpractice, the plaintiff appeals from (1) anorder of the Supreme Court, Queens County (O'Donoghue, J.), dated September 30, 2009, whichgranted the defendants' motion for summary judgment dismissing the complaint, and (2) ajudgment of the same court entered October 29, 2009, which, upon the order, is in favor of thedefendants and against the plaintiff dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereof which isin favor of the defendants Flushing Hospital Medical Center and Todd Freeman, and against theplaintiff dismissing the complaint insofar as asserted against those defendants; as so modified,the judgment is affirmed, without costs or disbursements, that branch of the defendants' motionwhich was for summary judgment dismissing the complaint insofar as asserted against thedefendants Flushing Hospital Medical Center and Todd Freeman is denied, and the order datedSeptember 30, 2009, is modified accordingly.
The appeal from the order dated September 30, 2009, must be dismissed because the right ofdirect appeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241 [1976]). The issues raised on the appeal from the order are brought up forreview and have been considered on the appeal from the judgment (see CPLR 5501 [a][1]).
On October 17, 2005, the plaintiff suffered a laceration to his right upper thigh when he fellfrom a ladder and was impaled upon a wrought iron fence while cleaning gutters at a friend'shouse. He was brought by that friend to the defendant Flushing Hospital Medical Center(hereinafter the hospital), where he was treated by the defendant Todd Freeman, a certifiedregistered physician's assistant. Freeman testified at his deposition that he thoroughly exploredthe plaintiff's wound before closing it with 25 sutures.[*2]
On October 27, 2005, the plaintiff returned to the hospitalfor a third time, having returned in the interim on October 19, 2005, for a wound check. Theplaintiff indicated that his pain had increased. He was once again treated by Freeman, whoremoved the sutures, drained a hematoma, and prescribed an antibiotic. The defendant SherbanPavlovici, M.D., was the attending physician who oversaw Freeman's care of the plaintiff on thatlast visit.
Two days after having the sutures removed at the hospital, the plaintiff sought care at NorthShore/Long Island Jewish University Hospital (hereinafter North Shore) in Syosset, where threepieces of fabric were removed from the wound in the emergency room. Thereafter, surgery wasperformed to further explore the wound. The plaintiff remained at North Shore until October 31,2005.
In a medical malpractice action, a defendant moving for summary judgment has " 'the burdenof establishing the absence of any departure from good and accepted medical practice, or that theplaintiff was not injured thereby' " (Belak-Redl v Bollengier, 74 AD3d 1110, 1111[2010], quoting Shahid v New York City Health & Hosps. Corp., 47 AD3d 800, 801[2008]; see Fotiou v Goodman, 74 AD3d 1140, 1141 [2010]; Swezey v MontagueRehab & Pain Mgt., P.C., 59 AD3d 431, 433 [2009]; Larsen v Loychusuk, 55 AD3d560, 561 [2008]; Rebozo v Wilen, 41 AD3d 457, 458 [2007]; Thompson v Orner,36 AD3d 791, 792 [2007]). In order to sustain this burden, the defendant must address and rebutany specific allegations of malpractice set forth in the plaintiff's bill of particulars (see Grantv Hudson Val. Hosp. Ctr., 55 AD3d 874 [2008]; Terranova v Finklea, 45 AD3d 572[2007]; Ward v Engel, 33 AD3d 790 [2006]; Ticali v Locascio, 24 AD3d 430[2005]; Berkey v Emma, 291 AD2d 517 [2002]; Drago v King, 283 AD2d 603[2001]).
Here, the plaintiff alleged in his bills of particulars that the defendants were negligent "intheir care and treatment of the plaintiff, in improperly treating a laceration which the plaintiff hadsustained in the back of his thigh by improperly cleaning and irrigating the wound, in improperlyadministering 25 sutures, in failing to remove pieces of the plaintiff's clothing from the woundand stitching the clothing into the plaintiff's wound." The defendants' expert's affirmation failedto address all of these allegations, and his opinions were conclusory as to the allegations that thehospital and Freeman deviated from the accepted standard of care. Consequently, it was improperfor the Supreme Court to award summary judgment to the hospital and Freeman (seeLaVecchia v Bilello, 76 AD3d 548 [2010]; Castro v New York City Health & Hosps.Corp., 74 AD3d 1005 [2010]; Vincini v Insel, 1 AD3d 351 [2003]). In light of thisdetermination, it is unnecessary to review the sufficiency of the plaintiff's opposition as it relatesto Freeman and the hospital (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]; LaVecchia v Bilello, 76 AD3d 548 [2010]; Castro v New York CityHealth & Hosps. Corp., 74 AD3d 1005 [2010]; Vincini v Insel, 1 AD3d 351 [2003]).Accordingly, the Supreme Court should have denied that branch of the defendants' motion whichwas for summary judgment dismissing the complaint insofar as asserted against those defendants.
However, with respect to Pavlovici, the Supreme Court properly determined that thedefendants made a prima facie showing of entitlement to judgment as a matter of law. Thedefendants' submissions established that Pavlovici did not deviate or depart from acceptedmedical practice as an attending physician overseeing Freeman's treatment of the plaintiff onOctober 27, 2005 (see Swezey v Montague Rehab & Pain Mgt., P.C., 59 AD3d at433-434; Rebozo v Wilen, 41 AD3d at 459; Thompson v Orner, 36 AD3d at791-792). In opposition thereto, the plaintiff failed to raise a triable issue of fact (see Yankusv Kelly, 72 AD3d 1068, 1070 [2010]; Shectman v Wilson, 68 AD3d 848, 850[2009]; Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563, 566 [2009]; Swezey vMontague Rehab & Pain Mgt., P.C., 59 AD3d at 434). Accordingly, the Supreme Courtcorrectly granted that branch of the defendants' motion which was for summary judgmentdismissing the complaint insofar as asserted against Pavlovici. Rivera, J.P., Angiolillo, Romanand Sgroi, JJ., concur.