| Graziano v Cooling |
| 2010 NY Slip Op 09217 [79 AD3d 803] |
| December 14, 2010 |
| Appellate Division, Second Department |
| William Graziano, Respondent, v David S. Cooling et al.,Appellants. |
—[*1] Jeffrey J. Shapiro and Associates, LLC, Bedford, N.Y. (Steven Millon of counsel), forrespondent.
In an action to recover damages for medical malpractice and lack of informed consent, thedefendants appeal from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), enteredSeptember 23, 2009, which denied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion for summaryjudgment dismissing the complaint is granted.
The plaintiff alleges that he began to feel sick on night of September 27, 2004. On September 28,2004, he went to the emergency room at Stony Brook Hospital, where he was seen by a triage nurse at4:08 p.m., and a third-year medical student at 5:15 p.m. The defendant David S. Cooling, M.D.,examined the plaintiff at 6:15 p.m. Cooling noted that the plaintiff had nasal congestion, nonproductivecough, sore throat, and nausea, had vomited once that morning, and had experienced sinus discomfortfor a few days. Upon Cooling's examination, he observed that the plaintiff had rhinorrhea and a slightlyinfected pharynx, without exudates. Cooling noted that the plaintiff's pupils were equal, round, andreactive to light. The plaintiff was reported to be alert and oriented as to person, place, and time.Cooling further indicated that the plaintiff was in no apparent distress.
At 6:25 p.m., the plaintiff was discharged with a diagnosis of upper respiratory infection and viralsyndrome. Cooling based his diagnosis of upper respiratory infection on the plaintiff's nasal congestion,nonproductive cough, sore throat, nausea, and some sinus discomfort. The plaintiff was instructed, interalia, to return or contact his family doctor if his condition worsened or if it did not resolve itself in oneweek.
The morning after the plaintiff was seen by Cooling, the plaintiff's family brought him to their familydoctor, in part, because the plaintiff was "not making any sense" when he spoke.[*2]
The plaintiff was referred by his family doctor to the emergencyroom of another hospital. The plaintiff was admitted into the emergency room at that hospital at 11:20a.m. on September 29, 2004. The triage notes indicate that the plaintiff was oriented only as to his ownidentity, but not as to place and time, and that he was "waxing and waning." The plaintiff was observedto be very weak and ill and had a fever of up to 102� F. The plaintiff was given a blood test between11:20 a.m. and 11:25 a.m. At 11:30 a.m. the plaintiff was given an antibiotic which treats bacterialmeningitis. He underwent a lumbar puncture at 12:50 p.m., which was completed at 1:00 p.m., andshowed an elevated glucose level and white blood cell count. The plaintiff's chart notes that he was firstdiagnosed with meningococcal meningitis, a type of bacterial meningitis, between 2:00 p.m. and 2:15p.m. on September 29, 2004.
The plaintiff commenced this action to recover damages for medical malpractice and lack ofinformed consent against Cooling and Stony Brook Emergency Physicians, University Faculty PracticeCorporation (hereinafter together the defendants). The defendants moved for summary judgmentdismissing the complaint. The Supreme Court denied the motion, and we reverse.
The defendants established their prima facie entitlement to judgment as a matter of law through thesubmission of Cooling's own affidavit and their expert's affidavit, opining that Cooling did not deviatefrom good and accepted standards of medical care during the treatment he rendered to the plaintiff andthat, in any event, Cooling's treatment of the plaintiff was not the proximate cause of any injuries theplaintiff may have sustained (see Swezey vMontague Rehab & Pain Mgt., P.C., 59 AD3d 431, 433 [2009]; Breland v Jamaica Hosp. Med. Ctr., 49AD3d 789, 790 [2008]).
Contrary to the conclusion of the Supreme Court, the affidavit of the plaintiff's expert, submitted inopposition to the defendants' motion, failed to raise a triable issue of fact. The plaintiff's expert'saffidavit was conclusory, speculative, and failed to address the specific assertions of the defendants'expert, including the assertion regarding proximate cause (see Alvarez v Prospect Hosp., 68NY2d 320, 324-325 [1986]; Thompson vOrner, 36 AD3d 791 [2007]; Barilav Comprehensive Pain Care of Long Is., 44 AD3d 806, 807 [2007]; Rebozo v Wilen, 41 AD3d 457, 459[2007]; DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; Domaradzki v Glen CoveOb/Gyn Assoc., 242 AD2d 282 [1997]). For example, the plaintiff's expert did not assert that theplaintiff exhibited key symptoms such as photophobia and neck stiffness, or other "cardinal signs,"which would have led to a diagnosis of meningococcal meningitis prior to the afternoon of September29, 2004. The plaintiff's expert also did not assert that any further testing was indicated at the time thatCooling examined the plaintiff. Therefore, there was no support for the expert's conclusory andspeculative statement that the plaintiff would have been diagnosed and begun treatment sooner if not forCooling's alleged deviations from the recognized standard of care (see Dixon v Freuman, 175AD2d 910, 911 [1991]).
Since the plaintiff failed to raise a triable issue of fact with respect to the issue of proximate cause,the defendants were also entitled to summary judgment on the cause of action sounding in lack ofinformed consent (see Viola v Blanco, 1AD3d 506 [2003]; Mondo v Ellstein, 302 AD2d 437 [2003]). Rivera, J.P., Florio, Belenand Austin, JJ., concur. [Prior Case History: 2009 NY Slip Op 32183(U).]