| Olgun v Cipolla |
| 2011 NY Slip Op 02643 [82 AD3d 1186] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Sadriye Tezir Olgun, Respondent, v Anthony P. Cipolla etal., Appellants, et al., Defendants. |
—[*1] Bruce G. Clark and Associates, P.C., Port Washington, N.Y. (Diane C. Cooper of counsel),for respondent.
In an action, inter alia, to recover damages for medical malpractice, etc., the defendantsAnthony P. Cipolla and Anthony P. Cipolla, M.D., P.C., appeal from an order of the SupremeCourt, Suffolk County (Spinner, J.), entered September 17, 2009, which denied their motion forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
On December 6, 2004, the plaintiff's husband, the late Sebahattin Olgun (hereinafter thedecedent), visited his primary care physician, the defendant Anthony P. Cipolla, complainingprimarily of chest pains that he had experienced two days prior to the visit for two hours andagain for a few minutes the day before the visit. The decedent was obese and had a history ofincreased cholesterol levels, which Dr. Cipolla had addressed with a low cholesterol diet. Duringthe December 6th visit, Dr. Cipolla, who specialized in internal medicine, performed anelectrocardiogram (hereinafter EKG) and interpreted it as showing no abnormalities. In order torule out a cardiac cause for the decedent's chest pain, Dr. Cipolla made an appointment for him atthe defendant South Shore Cardiovascular Medicine, P.C. (hereinafter South ShoreCardiovascular), for the following day. On December 7, 2004, the decedent was examined atSouth Shore Cardiovascular by the defendant Dima Teitelman, who performed anechocardiogram and another EKG. After interpreting both as showing no abnormalities, Dr.Teitelman sent the decedent home. Two days later, on December 9, 2004, the decedent died of acardiomyopathy with acute cardiac failure.
The plaintiff commenced this action against Dr. Cipolla and Anthony P. Cipolla, M.D., P.C.(hereinafter together the appellants), as well as South Shore Cardiovascular and its physicians,Dima Teitelman, John A. Ruisi, and Raman Kumar, alleging, inter alia, that the defendantsnegligently interpreted the EKGs and negligently failed to diagnose and treat the decedent's heartcondition. The [*2]Supreme Court denied the appellants' motionfor summary judgment dismissing the complaint insofar as asserted against them, holding thatthe conflicting expert opinions established the existence of triable issues of fact. We affirm.
In a medical malpractice action, the requisite elements of proof are "a deviation or departurefrom accepted practice and evidence that such departure was a proximate cause of injury ordamage" (Hamilton v Good Samaritan Hosp. of Suffern, N.Y., 73 AD3d 697, 698[2010]; Rebozo v Wilen, 41 AD3d 457, 458 [2007]; Thompson v Orner, 36AD3d 791, 791-792 [2007]). When moving for summary judgment, "a defendant doctor has theburden of establishing the absence of any departure from good and accepted medical practice orthat the plaintiff was not injured thereby" (Simmons v Brooklyn Hosp. Ctr., 74 AD3d1174, 1178 [2010] [internal quotation marks and citation omitted]; see Rebozo v Wilen,41 AD3d at 458; Thompson v Orner, 36 AD3d at 792).
While the appellants' contention that they did not have a duty to diagnose the decedent's heartcondition because it was outside Dr. Cipolla's scope of expertise as an internist is without merit,as he involved himself with this aspect of the decedent's care when he performed the EKG(cf. Wasserman v Staten Is. Radiological Assoc., 2 AD3d 713, 714 [2003]; Yasin vManhattan Eye, Ear & Throat Hosp., 254 AD2d 281, 282-283 [1998]), the appellants mettheir prima facie burden of establishing their entitlement to judgment as a matter of law bysubmitting an expert affirmation which demonstrated that the appellants did not depart fromgood and accepted medical practice in their treatment of the decedent (see Dandrea vHertz, 23 AD3d 332, 332 [2005]; Ventura v Beth Israel Med. Ctr., 297 AD2d 801,803 [2002]) and that, in any event, any departure would not have been a proximate cause of thedecedent's death.
In opposition, however, the affirmation from the plaintiff's expert raised triable issues of factas to whether the appellants deviated from accepted medical practice and whether suchdepartures were a proximate cause of the decedent's death. Contrary to the appellants' contention,the affirmation from the plaintiff's expert is not so conclusory or unsupported by the facts as torender it insufficient to raise a triable issue of fact (see Wallenquest v Brookhaven Mem.Hosp. Med. Ctr., 28 AD3d 538, 539 [2006]; cf. Rebozo v Wilen, 41 AD3d at 459)."Moreover, drawing all reasonable inferences from the affirmation of the plaintiff's expert in theplaintiff's favor, one could reasonably infer a nexus between the alleged departures fromacceptable medical practice and [the decedent's] subsequent death" (Wallenquest vBrookhaven Mem. Hosp. Med. Ctr., 28 AD3d at 539 [citation omitted]). Angiolillo, J.P.,Florio, Belen and Miller, JJ., concur.