| Brady v Westchester County Healthcare Corp. |
| 2010 NY Slip Op 08886 [78 AD3d 1097] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Susan Brady, Individually and as Administratrix of the Estate ofMaryAnn Reichardt, Deceased, Respondent, v Westchester County HealthcareCorporation et al., Appellants. |
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In an action to recover damages for medical malpractice, wrongful death, and lack ofinformed consent, the defendants Westchester County Healthcare Corporation, WestchesterMedical Center, Steven B. Zelicof, and Specialty Orthopedics appeal, as limited by their brief,from so much of an order of the Supreme Court, Westchester County (DiBella, J.), enteredNovember 12, 2009, as denied their motion for summary judgment dismissing the complaintinsofar as asserted against them, and the defendant Winifred Masterson Burke RehabilitationCenter separately appeals, as limited by its brief, from so much of the same order as denied itsmotion for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the separate motions which were for summary judgment dismissing the causesof action alleging lack of informed consent and substituting therefor a provision granting thosebranches of the motions; as so modified, the order is affirmed, without costs or disbursements.
On December 8, 2004, the decedent elected to have the defendant Steven B. Zelicof, M.D.,an orthopedic surgeon allegedly employed by the defendant Specialty Orthopedics, performbilateral knee replacement surgery at Westchester Medical Center. The surgery was performedwithout complication. However, a postoperative chest CT scan revealed bilateral pulmonaryopacities suspected to represent infection or edema. On December 12, 2004, the decedent wasstarted on intravenous antibiotics. On December 14, 2004, the decedent was cleared for dischargeby Dr. Zelicof, and transferred to the Winifred Masterson Burke Rehabilitation Center(hereinafter Burke) for postoperative rehabilitation where she was continued on oral antibiotics.On December 17, 2004, the decedent was found in respiratory arrest in her room at Burke andsoon went into [*2]cardiac arrest. The decedent was resuscitatedand rushed to the hospital; however, after suffering two more cardiac arrests, she died later thatday.
The plaintiff, the decedent's sister, commenced this action against Westchester CountyHealthcare Corporation, Westchester Medical Center, Dr. Zelicof, and Specialty Orthopedics(hereinafter collectively the hospital defendants), as well as Burke, to recover damages forwrongful death, medical malpractice, and lack of informed consent alleging, inter alia, that thedefendants failed to diagnose and improperly treated the decedent's aspiration pneumonia. Thehospital defendants moved for summary judgment dismissing the complaint insofar as assertedagainst them, and Burke separately moved for the same relief. The Supreme Court denied bothmotions.
The requisite elements of proof in a medical malpractice action are a deviation or departurefrom accepted community standards of practice, and evidence that such deviation or departurewas a proximate cause of injury or damage (see Castro v New York City Health & Hosps.Corp., 74 AD3d 1005 [2010]; Deutsch v Chaglassian, 71 AD3d 718 [2010];Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842 [2008]). A defendant physicianmoving for summary judgment in a medical malpractice action has the initial burden ofestablishing, prima facie, either the absence of any departure from good and accepted medicalpractice or that any departure was not the proximate cause of the alleged injuries (seeShichman v Yasmer, 74 AD3d 1316, 1318 [2010]; Larsen v Loychusuk, 55 AD3d560 [2008]; Sandmann v Shapiro, 53 AD3d 537 [2008]). " 'In opposition, a plaintiff mustsubmit evidentiary facts or materials to rebut the [defendant physician's] prima facie showing, soas to demonstrate the existence of a triable issue of fact' " (Castro v New York City Health &Hosps. Corp., 74 AD3d at 1006, quoting Deutsch v Chaglassian, 71 AD3d at 719).
Here, the hospital defendants and Burke met their prima facie burdens of establishing theirentitlement to judgment as a matter of law dismissing the causes of action alleging medicalmalpractice and wrongful death insofar as asserted against them by submitting, inter alia, anexpert physician's affidavit asserting that they did not deviate from the relevant standards ofpractice, and that any alleged departures were not a proximate cause of the decedent's injuriesand death. However, in opposition, the plaintiff raised a triable issue of fact by submitting anaffidavit of a physician asserting that the decedent had acquired aspiration pneumoniapostoperatively, that the defendants failed to properly diagnose and treat her aspirationpneumonia, and that the defendants' negligence in failing to properly diagnose and treat thedecedent's aspiration pneumonia ultimately led to her death (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; Feinberg v Feit, 23 AD3d 517, 519 [2005]).
We do not reach the hospital defendants' and Burke's challenge to the form of the plaintiff'sexpert affidavit as it is improperly raised for the first time on appeal (see BTJ Realty, Inc. vCaradonna, 65 AD3d 657, 658-659 [2009]).
The Supreme Court erred, however, in denying those branches of the separate motions whichwere for summary judgment dismissing the causes of action alleging lack of informed consent.The hospital defendants and Burke made a prima facie showing of entitlement to judgment as amatter of law establishing that the plaintiff was not alleging that the decedent's injuries and deathwere due, in whole or in part, to her having undergone "some affirmative violation of [her]physical integrity" in the absence of informed consent (Karlsons v Guerinot, 57 AD2d 73,82 [1977]; see Public Health Law § 2805-d; see also Martin v Hudson Val.Assoc., 13 AD3d 419 [2004]; Sample v Levada, 8 AD3d 465, 467 [2004]; Schelv Roth, 242 AD2d 697 [1997]). In opposition, the plaintiff failed to raise a triable issue offact, since she did not address those causes of action or specifically oppose those branches of themotions (see Rebozo v Wilen, 41 AD3d 457, 459 [2007]).
The appellants' remaining contentions are without merit. Florio, J.P., Belen, Lott and Austin,JJ., concur.