| Tierney v Girardi |
| 2011 NY Slip Op 05934 [86 AD3d 447] |
| July 14, 2011 |
| Appellate Division, First Department |
| Ann Marie Tierney, as Executrix of Angelina Trotta, Deceased,Respondent, v Leonard Girardi, M.D., et al., Defendants, and David B. Messinger, M.D.,et al., Appellants. |
—[*1] Jayne L. Brayer, Bronx, for respondent.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered May 25, 2010,which, inter alia, denied defendants-appellants' motion for summary judgment dismissing thecomplaint, unanimously affirmed, without costs.
In this medical malpractice action, plaintiff, as executrix of the estate of Angelina Trotta,alleges that defendants deviated from the standard of care by failing to administer ananticoagulant to the decedent upon her development of atrial fibrillation, following heart surgery(cardiac catheterization), causing her to suffer a stroke, which led to her disability, and death atthe age of 81. Preliminarily, we reject defendant Dr. Messinger's argument that he was notobligated to care for decedent once he finished performing the cardiocatheterization on her. Dr.Messinger continued to owe a duty of care because he established a doctor-patient relationshipwith decedent, consulted with her, her family, and the cardiologist concerning her treatmentfollowing the cardiocatheterization, and continued to monitor her condition (see Cregan v Sachs, 65 AD3d 101,110 [2009]). We find, however, that defendants demonstrated, through the affidavits of theirexperts, their entitlement to judgment as a matter of law dismissing the complaint on the groundthat the treatment provided to decedent by defendant doctors comported with good and acceptedmedical practice. For instance, defendants' experts opined that it was appropriate to treat theatrial fibrillation with certain medications because anticoagulation would have presented aninordinate risk of bleeding, given, among other things, the decedent's prior medical condition.
The burden shifted to plaintiff to demonstrate the existence of a triable issue of fact. The IAScourt properly excused plaintiff's procedural oversights, including the untimely filing of herexpert's affirmation, where there was no showing that plaintiff acted in bad faith or that the latefiling prejudiced defendants, and where the court permitted defendants to respond to the [*2]supplementary affidavit (see CPLR 2001, 2004, 3101 [d][1] [i]; St. Hilaire v White, 305 AD2d 209, 210 [2003]). Plaintiff's submissions raised atriable issue of fact as to whether defendants departed from the proper standard of care.Accordingly, defendants' motion for summary judgment was properly denied.Concur—Gonzalez, P.J., Sweeny, Moskowitz, Renwick and Richter, JJ. [Prior CaseHistory: 2010 NY Slip Op 31292(U).]