| Garbowski v Hudson Val. Hosp. Ctr. |
| 2011 NY Slip Op 05019 [85 AD3d 724] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Joseph Garbowski, Jr., et al.,Appellants-Respondents, v Hudson Valley Hospital Center et al.,Respondents-Appellants, and Michael Lasser, Respondent, et al.,Defendants. |
—[*1] Pilkington & Leggett, P.C., White Plains, N.Y. (Michael N. Romano of counsel), forrespondent-appellant Hudson Valley Hospital Center. Vout É, Lohrfink, Magro & Collins, LLP, White Plains, N.Y. (Joseph B. Failla ofcounsel), for respondents-appellants Obstetrics and Gynecology Associates and Jay Kalinsky. Gerspach Sikoscow LLP, New York, N.Y. (Alexander Sikoscow of counsel), for respondentMichael Lasser.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from somuch of an order of the Supreme Court, Westchester County (Smith, J.), dated February 3, 2010,as granted those branches of the motion of the defendants Obstetrics and Gynecology Associatesand Jay Kalinsky which were for summary judgment dismissing the complaint insofar as assertedagainst them except to the extent the complaint alleges a failure by those defendants tocontinually monitor the fetal heart rate during the administration of Pitocin and a failure toperform a more timely cesarean section, granted those branches of the motion of the defendantHudson Valley Hospital Center which were for summary judgment dismissing the complaintinsofar as asserted against it except to the extent the complaint alleges a failure by that defendantto continually monitor the fetal heart rate, and granted the motion of the defendant MichaelLasser for summary judgment dismissing the complaint insofar as asserted against him, thedefendant Hudson Valley Hospital Center cross-appeals from so much of the same order asdenied that branch of its motion which was for summary judgment dismissing the complaintinsofar as asserted against it to the extent the complaint alleges a failure to continually monitorthe fetal heart rate, and the defendants Obstetrics and Gynecology Associates and Jay Kalinskyseparately cross-appeal from so much of the same order as denied those branches of their motionwhich were for summary judgment dismissing the complaint insofar as asserted against them tothe extent the complaint alleges a failure by those defendants to continually monitor the fetalheart rate during the administration of Pitocin and a failure to perform a more timely cesareansection.[*2]
Ordered that the order is affirmed insofar as appealed andcross-appealed from, with one bill of costs to the defendant Michael Lasser, payable by theplaintiffs.
The defendant Jay Kalinsky and his practice, the defendant Obstetrics and GynecologyAssociates (hereinafter together Dr. Kalinsky), provided prenatal treatment to the plaintiffStephanie Garbowski during her pregnancy in 2001, which was complicated by a diagnosis ofgestational diabetes. In accordance with his standard practice of treatment for patients withgestational diabetes, Dr. Kalinsky made the decision to induce labor at the defendant HudsonValley Hospital Center (hereinafter the hospital), which involved the administration of Pitocin, alabor-inducing medication that required electronic monitoring of the fetal heart rate. Duringlabor, a number of late decelerations in the fetal heart rate were detected, and Dr. Kalinsky madethe decision to deliver the infant plaintiff by cesarean section. The defendant Michael Lasser(hereinafter Dr. Lasser) was the attending pediatrician during the infant plaintiff's delivery andhospitalization and provided care and treatment to the infant plaintiff in the months after hisbirth.
The plaintiffs commenced this medical malpractice action against, among others, Dr.Kalinsky, Dr. Lasser, and the hospital, alleging that various deviations from accepted medicalpractice by these defendants in prenatal care, during labor and delivery, and in treating the infantplaintiff after birth proximately caused the infant plaintiff's neurological and developmentalinjuries. Thereafter, each of these defendants moved for summary judgment dismissing thecomplaint insofar as asserted against each of them.
The Supreme Court denied those branches of Dr. Kalinsky's motion which were for summaryjudgment dismissing the complaint insofar as asserted against him to the extent the complaintalleges a failure to continually monitor the fetal heart rate during the administration of Pitocinand a failure to perform a more timely cesarean section, but otherwise granted the motion forsummary judgment dismissing the complaint insofar as asserted against him. The Supreme Courtalso denied the hospital's motion as to the plaintiffs' cause of action alleging a failure on the partof its nursing staff to continually monitor the fetal heart rate during the administration of Pitocin,but otherwise granted the motion for summary judgment dismissing the remainder of thecomplaint insofar as asserted against it. The Supreme Court granted Dr. Lasser's motion forsummary judgment dismissing the complaint insofar as asserted against him. The plaintiffsappeal, and Dr. Kalinsky and the hospital separately cross-appeal. We affirm.
"The requisite elements of proof in a medical malpractice action are a deviation or departurefrom accepted community standards of practice and evidence that such departure was aproximate cause of injury or damage" (Heller v Weinberg, 77 AD3d 622, 622 [2010]; see Stukas v Streiter, 83 AD3d 18[2011]; Dolan v Halpern, 73 AD3d1117, 1118 [2010]). "On a motion for summary judgment, a defendant doctor has the burdenof establishing the absence of any departure from good and accepted medical practice or that theplaintiff was not injured thereby" (Heller v Weinberg, 77 AD3d at 622-623; seeStukas v Streiter, 83 AD3d at 24; Dolan v Halpern, 73 AD3d at 1118). In opposition,"a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facieshowing, so as to demonstrate the existence of a triable issue of fact" (Deutsch v Chaglassian, 71 AD3d718, 719 [2010]; see Stukas v Streiter, 83 AD3d at 24; Brady v Westchester County HealthcareCorp., 78 AD3d 1097, 1098 [2010]). "General allegations of medical malpractice,merely conclusory and unsupported by competent evidence tending to establish the essentialelements of medical malpractice, are insufficient to defeat defendant physician's summaryjudgment motion" (Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; see Deutschv Chaglassian, 71 AD3d at 719).
Here, Dr. Kalinsky established his prima facie entitlement to judgment as a matter of law bysubmitting, inter alia, his deposition testimony and his affidavit, in which he asserted that he didnot deviate from accepted standards of medical practice (see Joyner-Pack v Sykes, 54 AD3d 727, 729 [2008]; Thomas v Richie, 8 AD3d 363,364 [2004]), and an affirmation from an expert who opined that the cause of the infant plaintiff'sinjuries was genetically based and, thus, any departure from accepted standards of medicalpractice was not the proximate cause of the injuries. However, in opposition, the plaintiffs raisedtriable issues of fact by submitting affirmations of two physicians asserting that Dr. Kalinskyfailed to continuously monitor the fetal heart rate during the [*3]administration of Pitocin and failed to initiate an emergentC-section rather than an urgent C-section, and that these deviations from accepted medicalpractice proximately caused the infant plaintiff's injuries (see Brady v Westchester CountyHealthcare Corp., 78 AD3d at 1099; Feinberg v Feit, 23 AD3d 517, 519 [2005]; Erbstein vSavasatit, 274 AD2d 445, 445-446 [2000]; cf. Shectman v Wilson, 68 AD3d 848, 849-850 [2009]). Contraryto the plaintiffs' contention, however, their expert affirmations were otherwise conclusory andfailed to address the specific assertions of Dr. Kalinsky with respect to the remaining theories ofliability asserted against him (see Alvarez v Prospect Hosp., 68 NY2d at 325; Graziano v Cooling, 79 AD3d803, 804-805 [2010]). Accordingly, the Supreme Court properly granted those branches ofDr. Kalinsky's motion which were for summary judgment dismissing the complaint insofar asasserted against him except to the extent that the complaint alleges a failure by Dr. Kalinsky tocontinually monitor the fetal heart rate during the administration of Pitocin and a failure toperform a more timely cesarean section.
The hospital established its prima facie entitlement to judgment as a matter of law bysubmitting, inter alia, an expert affirmation asserting that the Hospital nursing staff did notdeviate from accepted standards of medical practice and that, in any event, any departure was notthe proximate cause of the infant plaintiff's injuries. In opposition, the plaintiffs' two medicalexperts raised a triable issue of fact by asserting that the nursing staff failed to continuouslymonitor the fetal heart rate during the administration of Pitocin, and that this deviation fromaccepted medical practice proximately caused the infant plaintiff's injuries (see Costello v Kirmani, 54 AD3d656, 657 [2008]). However, the affirmations of the plaintiffs' experts, including the entiretyof an affirmation from a registered nurse, were otherwise conclusory and failed to address thespecific assertions of the hospital's expert with respect to the remaining theories of liabilityasserted against it. Accordingly, the Supreme Court properly granted the hospital's motion forsummary judgment dismissing the complaint insofar as asserted against it except to the extentthat the complaint alleges a failure to continually monitor the fetal heart rate.
Dr. Lasser established his prima facie entitlement to judgment as a matter of law bysubmitting, inter alia, an expert affirmation asserting that he did not deviate from acceptedstandards of medical practice and that, in any event, any departure was not the proximate causeof the infant plaintiff's injuries. In opposition, the plaintiffs failed to raise a triable issue of factwith respect to any departure from accepted standards of medical practice on the part of Dr.Lasser, as their expert in pediatrics and neurology offered conclusory and unsubstantiatedallegations of malpractice (see Alvarez v Prospect Hosp., 68 NY2d at 325; Simmons v Brooklyn Hosp. Ctr., 74AD3d 1174, 1178 [2010]; Ramsayv Good Samaritan Hosp., 24 AD3d 645, 647 [2005]). Accordingly, the Supreme Courtproperly granted Dr. Lasser's motion for summary judgment dismissing the complaint insofar asasserted against him. Mastro, J.P., Dickerson, Chambers and Roman, JJ., concur.