| Barnett v Fashakin |
| 2011 NY Slip Op 05212 [85 AD3d 832] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Rosemarie Barnett, Appellant, v Emmanuel Fashakin et al.,Respondents, et al., Defendant. |
—[*1] Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Dan Ratner and Daryl Paxson ofcounsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice and lack of informedconsent, the plaintiff appeals, as limited by her brief, from (1) so much of an order of theSupreme Court, Queens County (O'Donoghue, J.), entered May 28, 2010, as granted thosebranches of the motion of the defendants Emmanuel Fashakin, Surinder Malhotra, July Morbeth,Hiu Lam Ng, Nadia Younus, and Alpha-K Family Medical Practice, P.C., which were forsummary judgment dismissing so much of the complaint as sought to recover damages formedical malpractice insofar as asserted against them and as sought to recover damages for lackof informed consent insofar as asserted against the defendant Surinder Malhotra, and (2) so muchof a judgment of the same court entered July 8, 2010, as, upon the order, is in favor of thedefendants Emmanuel Fashakin, Surinder Malhotra, July Morbeth, Hiu Lam Ng, Nadia Younus,and Alpha-K Family Medical Practice, P.C., and against her dismissing so much of the complaintas sought to recover damages for medical malpractice insofar as asserted against thosedefendants and as sought to recover damages for lack of informed consent insofar as assertedagainst the defendant Surinder Malhotra.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law, those branches ofthe motion of the defendants Emmanuel Fashakin, Surinder Malhotra, July Morbeth, Hiu LamNg, Nadia Younus, and Alpha-K Family Medical Practice, P.C., which were for summaryjudgment dismissing so much of the complaint as sought to recover damages for medicalmalpractice insofar as asserted against them and as sought to recover damages for lack ofinformed consent insofar as asserted against the defendant Surinder Malhotra are denied, and theorder entered May 28, 2010, is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment entered July 8, 2010 (see Matter ofAho, [*2]39 NY2d 241, 248 [1976]). The issues raised on theappeal from the order are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
The defendant physician Emmanuel Fashakin is the owner of the defendant Alpha-K FamilyMedical Practice, P.C. (hereinafter Alpha-K), and the defendant physician assistants JulyMorbeth, Hiu Lam Ng, and Nadia Younus were employed by Alpha-K during the relevant timeperiod. In January 2005, the plaintiff began receiving treatment from Alpha-K for complaintsincluding nasal congestion and upper respiratory infection. In February 2005, the plaintiff metwith the defendant Surinder Malhotra, an otolaryngologist who is not a member of Alpha-K, andshe ultimately decided to have Malhotra perform sinus surgery. Malhotra performed the sinussurgery on April 22, 2005, and removed packing materials from the plaintiff's nose on thefollowing day. After having the packing removed, the plaintiff never saw Malhotra again.
After her sinus surgery, the plaintiff continued to receive medical treatment from Alpha-Kfor various complaints. According to the plaintiff, in September 2006, she went to Alpha-Kcomplaining of "typical postnasal drip" and also that a thin, clear water-like fluid was flowingfrom her nose. She was prescribed medication and referred to an allergist. On her final visit toAlpha-K in November 2006, she complained of frontal sinus pain and nasal congestion when shebent forward.
According to the plaintiff, she was hospitalized with meningitis in April 2007, and wassubsequently diagnosed with a hole in her cribriform plate, a bone which separates the sinuscavity from the brain, and leakage of cerebral spinal fluid (hereinafter CSF) from that hole. InAugust 2007, the plaintiff underwent surgery to address "a large anterior skull base defect" andthe CSF leak. Thereafter, she commenced this action, inter alia, to recover damages for medicalmalpractice and lack of informed consent. In her bills of particulars, the plaintiff alleged, amongother things, that Malhotra had deviated from accepted standards of medical practice byperforating her cribriform plate during the sinus surgery, and that the defendants' deviations fromthe accepted standards of medical practice had caused her to develop meningitis.
Fashakin, Morbeth, Ng, Younus, Alpha-K (hereinafter collectively the Alpha-K defendants),and Malhotra moved together, inter alia, for summary judgment dismissing so much of thecomplaint as sought to recover damages for medical malpractice insofar as asserted against themand as sought to recover damages for lack of informed consent insofar as asserted againstMalhotra. The Supreme Court, among other things, granted the aforementioned branches of theirmotion. We reverse the judgment insofar as appealed from.
The Supreme Court improperly granted that branch of the motion of the Alpha-K defendantsand Malhotra (hereinafter collectively the defendants) which was to dismiss so much of thecomplaint as sought to recover damages for medical malpractice insofar as asserted against them."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 Guzzi v Gewirtz, 82 AD3d 838 [2011]). Thus, on a motion forsummary judgment dismissing the complaint in a medical malpractice action, the defendantdoctor has the initial burden of establishing the absence of any departure from good and acceptedmedical practice or that the plaintiff was not injured thereby (see Wexelbaum v Jean, 80 AD3d 756, 757 [2011]; Roca v Perel, 51 AD3d 757,758-759 [2008]). "[T]o defeat summary judgment, the nonmoving party need only raise a triableissue of fact with respect to the element of the cause of action or theory of nonliability that is thesubject of the moving party's prima facie showing" (Stukas v Streiter, 83 AD3d 18, 24 [2011]).
Here, the defendants established their prima facie entitlement to judgment as a matter of lawon the issue of deviation or departure from accepted medical practice by submitting anaffirmation from an expert otolaryngologist (see Guzzi v Gewirtz, 82 AD3d at 838).Although, when viewed in the light most favorable to the plaintiff (see Stukas v Streiter,83 AD3d at 22), that expert affirmation and Malhotra's deposition testimony presented a triableissue of fact as to whether Malhotra perforated the plaintiff's cribriform plate during sinussurgery, the defendants' expert opined, among other things, that damage to the cribriform plateduring sinus surgery did not indicate [*3]a departure from goodsurgical technique. In addition, the defendants' expert opined that the Alpha-K defendants hadnot deviated from accepted standards of medical practice in their treatment of the plaintiff.
In opposition, however, the plaintiff's expert submissions raised a triable issue of fact as towhether the defendants' treatment of the plaintiff departed from accepted standards of medicalpractice (see Guzzi v Gewirtz, 82 AD3d at 838). "Summary judgment is not appropriatein a medical malpractice action where the parties adduce conflicting medical expert opinions. . . Such credibility issues can only be resolved by a jury" (Feinberg v Feit, 23 AD3d 517, 519[2005] [citations omitted]; see Graham vMitchell, 37 AD3d 408, 409 [2007]). Here, the plaintiff proffered the affirmation of anexpert physician who opined, among other things, that Malhotra had departed from good andaccepted surgical practice during the plaintiff's sinus surgery by failing to remain in the correctsurgical field and by perforating her cribriform plate. Additionally, the plaintiff submitted asecond expert affirmation opining that the Alpha-K defendants had departed from good andaccepted medical practice in their treatment of the plaintiff both before and after her sinussurgery. Accordingly, the plaintiff's expert submissions raised triable issues of fact on the issue ofdeviation or departure from accepted medical practice (see Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]).
Furthermore, as to the element of proximate cause, the defendants failed to make a primafacie showing that any departures from accepted medical practice were not the cause of theplaintiff's injuries (see Stukas v Streiter, 83 AD3d at 24). The affirmation of thedefendants' expert offered only a conclusory opinion that the treatment provided by thedefendants was not a proximate cause of the plaintiff's alleged injuries and did not address, interalia, the plaintiff's specific claim in her bills of particulars that the defendants' departures fromaccepted medical practice had caused her to develop meningitis (see Grant v Hudson Val. Hosp. Ctr., 55AD3d 874, 874-875 [2008]; Kuri vBhattacharya, 44 AD3d 718 [2007]). Therefore, because the defendants failed to make aprima facie showing of entitlement to judgment as a matter of law on the element of proximatecause, the plaintiff was not obligated to raise a triable issue of fact with respect to this element inher opposition papers (see Stukas v Streiter, 83 AD3d at 26).
Accordingly, the Supreme Court should have denied that branch of the defendants' motionwhich was for summary judgment dismissing so much of the complaint as sought to recoverdamages for medical malpractice insofar as asserted against them (see Alvarez v ProspectHosp., 68 NY2d at 324).
Moreover, the defendants failed to make a prima facie showing of entitlement to judgment asa matter of law dismissing so much of the complaint as sought to recover damages for lack ofinformed consent insofar as asserted against Malhotra. Public Health Law § 2805-d (1)defines lack of informed consent as "the failure of the person providing the professionaltreatment . . . to disclose to the patient such alternatives thereto and the reasonablyforeseeable risks and benefits involved as a reasonable medical, dental or podiatric practitionerunder similar circumstances would have disclosed, in a manner permitting the patient to make aknowledgeable evaluation." Here, although the defendants submitted the consent form that theplaintiff signed prior to undergoing sinus surgery, the form was generic (see Rezvani v Somnay, 65 AD3d537, 538 [2009]; see alsoWilson-Toby v Bushkin, 72 AD3d 810, 810-811 [2010]). In addition, the depositiontestimony of the plaintiff and of Malhotra, both of which were submitted by the defendants,presented a triable issue of fact as to the content of the additional warnings and information theplaintiff was given prior to the surgery (see Wilson-Toby v Bushkin, 72 AD3d at 811).Accordingly, the Supreme Court should have denied this branch of the defendants' motion,regardless of the sufficiency of the plaintiff's opposition papers as to this issue (see Winegradv New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Covello, J.P., Leventhal, Lott andMiller, JJ., concur.