| Wexelbaum v Jean |
| 2011 NY Slip Op 00508 [80 AD3d 756] |
| January 25, 2011 |
| Appellate Division, Second Department |
| Martin Wexelbaum et al., Respondents, v Jean Claude Jeanet al., Appellants, and Madhu Saxena et al., Respondents. |
—[*1] Duffy & Duffy, Uniondale, N.Y. (Mary Ellen Duffy and James Wilkens of counsel), forplaintiffs-respondents.
In an action to recover damages for medical malpractice, etc., the defendants Jean ClaudeJean and Jean Claude Jean, Physicians, P.C., appeal from so much of an order of the SupremeCourt, Kings County (Jackson, J.), dated May 27, 2009, as denied their motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them.Presiding Justice Prudenti has been substituted for the late Justice Fisher. Justice Skelos has beensubstituted for former Justice Santucci. Justice Covello has been substituted for former JusticeHoward Miller (see 22 NYCRR 670.1 [c]).
Ordered that the order is affirmed insofar as appealed from, with costs to theplaintiffs-respondents.
The plaintiffs commenced this action against, among others, the appellants, Dr. Jean ClaudeJean and his professional corporation, Jean Claude Jean, Physicians, P.C., alleging medicalmalpractice and related claims. The plaintiffs allege that Jean was negligent in, among otherthings, failing to properly diagnose and treat a stroke which the plaintiff Martin Wexelbaumallegedly suffered while he was a patient under Jean's care at the defendant Mary ImmaculateHospital.
"The essential elements of medical malpractice are (1) a deviation or departure from acceptedmedical practice, and (2) evidence that such departure was a proximate cause of injury"(DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; see Roca v Perel, 51 AD3d 757, 758 [2008]; Flaherty v Fromberg, 46 AD3d743, 746 [2007]). Thus, on a motion for summary judgment dismissing the complaint in amedical malpractice action, the defendant doctor has the initial burden of establishing theabsence of any departure from good and accepted medical practice or that the plaintiff was notinjured thereby (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Roca vPerel, 51 AD3d at 758).
The appellants met their initial burden of demonstrating their entitlement to judgment as amatter of law by submitting an expert's affirmation establishing that Jean did not deviate fromaccepted standards of medical practice. The expert reached this conclusion since the onlyapproved [*2]treatment for this type of stroke, which had to beadministered within three hours of the onset of symptoms, was contraindicated in this casebecause the onset of the stroke occurred before the patient was under Jean's care and the time thestroke occurred could not be determined. Moreover, the patient had symptoms that otherwisewould have excluded him as a candidate for the treatment.
The burden then shifted to the plaintiffs to produce evidentiary proof in admissible formsufficient to rebut the appellants' prima facie showing, so as to demonstrate the existence of atriable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324; Deutsch v Chaglassian, 71 AD3d718, 719 [2010]). The Supreme Court properly determined that the plaintiffs met this burdenwith the affidavit of their expert which refuted the assertions of the appellants' expert, opiningthat the stroke occurred while the patient was under Jean's care, that the symptoms would havebeen evident if the patient had been receiving proper care, and that the subject treatment wouldnot have been contraindicated for this patient.
"Summary judgment is not appropriate in a medical malpractice action where the partiesadduce conflicting medical expert opinions. Such credibility issues can only be resolved by ajury" (Feinberg v Feit, 23 AD3d517, 519 [2005] [citations omitted]; see Darwick v Paternoster, 56 AD3d 714, 715 [2008]; Bjorke v Rubenstein, 53 AD3d519, 520 [2008]; Roca v Perel, 51 AD3d at 759). Accordingly, the appellants'motion for summary judgment was properly denied. We note that the appellants' argumentsconcerning vicarious liability are raised for the first time on appeal and, thus, are not properlybefore us. Prudenti, P.J., Skelos, Covello and Lott, JJ., concur.