| Adams v Anderson |
| 2011 NY Slip Op 03931 [84 AD3d 1522] |
| May 12, 2011 |
| Appellate Division, Third Department |
| Sandra E. Adams, Appellant, v Eldridge T. Anderson et al.,Respondents. |
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Appeal from an order of the Supreme Court (Mulvey, J.), entered April 19, 2010 inTompkins County, which granted defendants' motion for summary judgment dismissing thecomplaint.
Plaintiff was injured in a motor vehicle accident in September 2004. She was transported tothe hospital, where she was diagnosed with a concussion, a left orbit fracture and minorcontusions. In mid-October 2004, plaintiff went to defendant Ithaca Orthopaedic Group, P.C. tohave her left wrist examined. Defendant Susan Herr, a physician's assistant, treated plaintiff byinitially placing plaintiff's wrist in a cast. A few weeks later, defendant Eldridge T. Anderson, anorthopaedic surgeon, removed the cast, splinted her wrist and gave her exercises to do.
In late November 2004, plaintiff began to complain of significant shoulder pain. Herr notedin plaintiff's medical records that it was "probable chronic regional pain syndrome," more oftenreferred to as complex regional pain syndrome (hereinafter CRPS), and instructed plaintiff tobegin physical therapy and to undergo a bone scan. Although plaintiff commenced physicaltherapy and continued such treatment on a regular basis, she was concerned with the possibleeffects of a bone scan and declined to have one performed. In January 2005, Anderson discussedwith plaintiff the need for pain management, including possible stellate ganglion blocks, butplaintiff refused to undergo that procedure as well. In June 2005, Anderson referred plaintiff to a[*2]different physician and, approximately one year later, shecommenced this action alleging medical malpractice for failure to timely diagnose and treatCRPS. Defendants moved for summary judgment dismissing the complaint and Supreme Courtgranted the motion. Plaintiff now appeals and we affirm.
A finding of medical malpractice requires proof that defendants deviated from acceptedmedical practice and that such deviation was the proximate cause of plaintiff's injury (see Caulkins v Vicinanzo, 71 AD3d1224, 1226 [2010]; Hytko vHennessey, 62 AD3d 1081, 1083-1084 [2009]). Here, in support of their motion,defendants submitted the affidavit of Jack Sproul, a licensed physician. Sproul opined that,because CRPS is a chronic pain syndrome, there is no specific diagnostic test or cure, andtreatment involves elimination of the painful symptoms through medicine and physical therapy.He asserted that defendants' diagnosis was timely because it was made when plaintiff firstexhibited symptoms of CRPS in November 2004, and she was appropriately referred to physicaltherapy and directed to take pain medication as necessary. Based on these assertions, Sproulopined that plaintiff's injuries were not caused by any negligence or deviation from acceptedstandards of care on the part of defendants. Thus, defendants met their initial burden ofdemonstrating their right to judgment as a matter of law, thereby shifting the burden to plaintiffto raise a question of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Hickey v Arnot-Ogden Med. Ctr., 79AD3d 1400, 1401 [2010]).
In opposition to the motion, plaintiff submitted the affidavit of Aldo Iulo, a licensedphysician certified in orthopaedic surgery. Iulo indicated, among other things, that defendants'proffered treatments should have occurred earlier and, therefore, the conclusive diagnosis ofCRPS and "the rapid treatment that would have addressed the CRPS" were delayed. However,the uncontroverted evidence demonstrates that, when defendants recommended the verytreatments that Iulo opined should have been undertaken, plaintiff refused such treatments. Thus,even assuming that Iulo's affidavit was sufficient to allege a deviation from accepted standards ofcare, it did not raise a triable issue of fact as to the nexus between the alleged malpractice andplaintiff's injury and was insufficient to defeat defendants' motion (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]; Caulkins v Vicinanzo, 71 AD3d at1226-1227).
Plaintiff's remaining contentions have been reviewed and are without merit.
Peters, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,with costs.