| Muniz v Mount Sinai Hosp. of Queens |
| 2012 NY Slip Op 00192 [91 AD3d 612] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| Margarita Muniz et al., Respondents, v Mount SinaiHospital of Queens et al., Appellants. |
—[*1] Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro,Jr., Gina Bernardi Di Folco, and Patricia D'Alvia of counsel), for appellants Shishir Kumas Boseand Queens-Long Island Medical Group, P.C. Argyropoulos & Bender, Astoria, N.Y. (Michael S. Bender and Susan E. Paulovich ofcounsel), for respondents.
In an action to recover damages for medical malpractice, wrongful death, and lack ofinformed consent, the defendants Shishir Kumar Bose and Queens-Long Island Medical Group,P.C., appeal, as limited by their brief, from so much of an order of the Supreme Court, QueensCounty (O'Donoghue, J.), entered June 11, 2009, as granted that branch of their motion whichwas for summary judgment dismissing, as time-barred, the first cause of action to recoverdamages for conscious pain and suffering based on medical malpractice insofar as assertedagainst them only to the extent that such cause of action is premised upon medical malpracticeallegedly committed prior to March 2002, denied that branch of their motion which was forsummary judgment dismissing the first and third causes of action insofar as asserted against themon the merits, and, in effect, denied that branch of their motion which was for summary judgmentdismissing the fourth cause of action to recover punitive damages insofar as asserted againstthem, and the defendant Mount Sinai Hospital of Queens separately appeals from so much of thesame order as denied its motion for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the motion of the defendants Shishir Kumar Bose and Queens-Long IslandMedical Group, P.C., which was for summary judgment dismissing, as time-barred, the firstcause of action to recover damages for conscious pain and suffering based on medicalmalpractice insofar as asserted against them only to the extent that such cause of action ispremised upon medical malpractice allegedly committed prior to March 2002, and substitutingtherefor a provision granting that branch of the motion to the extent that such cause of action ispremised upon medical malpractice allegedly committed prior to June 15, 2003, (2) by deletingthe provision thereof, in effect, denying that branch of the motion of the defendants ShishirKumar Bose and Queens-Long Island Medical Group, P.C., which was for summary judgmentdismissing the fourth cause of action to recover punitive damages insofar as asserted againstthem, and substituting therefor a provision [*2]granting thatbranch of the motion, (3) by deleting the provision thereof denying those branches of the separatemotion of the defendant Mount Sinai Hospital of Queens which were for summary judgmentdismissing the first and third causes of action insofar as asserted against it, and substitutingtherefor a provision granting those branches of the motion, and (4) by deleting the provisionthereof denying that branch of the separate motion of the defendant Mount Sinai Hospital ofQueens which was for summary judgment dismissing the fourth cause of action to recoverpunitive damages insofar as asserted against it, and substituting therefor a provision granting thatbranch of the motion; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
The defendant Shishir Kumar Bose, an internist practicing with the defendant Queens-LongIsland Medical Group, P.C. (hereinafter QLIMG), treated the plaintiff's decedent, MargaritaMuniz (hereinafter the decedent), from 1985 until her death in 2004.
On February 22, 2002, the decedent sought treatment from Bose for an infection. Bosereferred her for a blood test and advised her to follow up with him if her symptoms persisted. Thedecedent returned to him on February 27, 2002, with the same complaints. The results were notback from the blood test during this follow-up visit since the decedent had only gone for theblood test that morning. The decedent returned to Bose on March 20, 2002, at his request sincethe blood test results showed that the decedent was slightly anemic and Bose wanted to furtherevaluate the cause of the anemia. On March 2, 2004, the decedent again sought treatment fromBose, at which time Bose, among other things, ordered additional blood tests.
Subsequently, on March 30, 2004, the decedent, then 53 years old, was brought to theemergency department at the defendant Mount Sinai Hospital of Queens (hereinafter MSHQ) forevaluation of sudden onset, post-menopausal vaginal bleeding. Among other things, a blood testwas taken and the decision was made to admit the decedent to MSHQ. The decedent remainedhospitalized at MSHQ until she was discharged on April 9, 2004. Bose saw the decedent eachday during her hospitalization at MSHQ except for one day. During her hospitalization, a pelvicsonogram revealed a mass in her lower abdomen, which was thought to be a possibleleiomyosarcoma, or malignant tumor, for which a hysterectomy was performed. The surgeryconfirmed the presence of a leiomyosarcoma. The decedent was discharged from MSHQ onApril 9, 2004.
Bose continued to treat the decedent from the date of her surgery through herre-hospitalization at MSHQ on May 19, 2004, for bilateral pulmonary congestion, interstitialcongestion, and nodule changes. She remained at MSHQ until her death on June 6, 2004. Duringthat period of hospitalization at MSHQ, the decedent was diagnosed with, inter alia, HIV/AIDSand PCP pneumonia, an illness that occurs primarily in patients at the end stage of untreatedAIDS. At no time during the decedent's prior hospitalization in March/April 2004 did Boseconsider a diagnosis of HIV or AIDS.
The decedent's daughter, Margarita Muniz, was appointed administrator of the decedent'sestate on December 20, 2004, and, along with the decedent's three other daughters (hereinaftercollectively the plaintiffs), commenced this action on or about December 15, 2005, against Bose,QLIMG, and MSHQ. In the amended complaint, the plaintiffs asserted causes of action torecover damages for conscious pain and suffering premised on medical malpractice against Boseand QLIMG (hereinafter together the QLIMG defendants) for treatment rendered to the decedentby them from June 3, 1985, to June 6, 2004, and against MSHQ for the treatment rendered fromMarch 30, 2004, to June 6, 2004 (first cause of action); damages resulting from the defendants'failure to obtain informed consent from the decedent with respect to the procedures andtreatments performed by the defendants in their care of her (second cause of action); damagesstemming from the decedent's wrongful death (third cause of action); and punitive damages(fourth cause of action).
The QLIMG defendants moved, among other things, for summary judgment dismissing thecomplaint insofar as asserted against them. MSHQ separately moved for summary judgmentdismissing the complaint insofar as asserted against it.[*3]
The Supreme Court, inter alia, granted that branch of theQLIMG defendants' motion which was for summary judgment dismissing, as time-barred, thefirst cause of action insofar as asserted against them only to the extent that such cause of action ispremised on acts of medical malpractice occurring prior to March 2002. The Supreme Court heldthat "[t]he continuous treatment doctrine applies to toll the statute of limitations with respect totreatment occurring as far back as March 2002." Moreover, the Supreme Court held that"[q]uestions of fact exist, including but not limited to, whether Dr. Bose departed from theaccepted standard of care during the period of treatment commencing in March 2002 by failing totest for immune system disease to determine the cause of abnormal blood levels that hedocumented in his own records, and if so whether said departure was a proximate cause ofdecedent's injuries and death which may require resolution at trial."
The Supreme Court granted that branch of the QLIMG defendants' motion which was forsummary judgment dismissing the cause of action premised on a lack of informed consentinsofar as asserted against them and denied MSHQ's motion for summary judgment dismissingthe complaint insofar as asserted against it, concluding that triable issues of fact existed as towhether MSHQ departed from the accepted standard of care and, if so, whether that departurewas a proximate cause of the decedent's death.
The Supreme Court should have granted that branch of the QLIMG defendants' motionwhich was for summary judgment dismissing, as time-barred, the first cause of action to recoverdamages for conscious pain and suffering based on medical malpractice insofar as assertedagainst them to the extent that such cause of action is premised upon medical malpracticeallegedly committed prior to June 15, 2003, which was more than 2½ years prior to thecommencement of the instant action (see CPLR 214-a; Cox v Kingsboro Med.Group, 88 NY2d 904, 906 [1996]; Stewart v Cohen, 82 AD3d 874, 875 [2011]; cf. Capece v Nash, 70 AD3d 743,745 [2010]). The plaintiffs, as the decedent's representatives, did not take advantage of CPLR210 (a) by commencing the instant action within one year of the decedent's death (cf.CPLR 210 [a]). In opposition to the prima facie showing of the QLIMG defendants, the plaintiffsfailed to raise a triable issue of fact as to the applicability of the continuous treatment doctrinesufficient to toll the statute of limitations (see Capece v Nash, 70 AD3d at 745; see also Elrington v Staub, 29 AD3d939 [2006]; Levinson v Etra, 306 AD2d 250 [2003]).
The Supreme Court correctly denied those branches of the QLIMG defendants' motion whichwere for summary judgment dismissing, on the merits, the first and third causes of action insofaras asserted against them. "The requisite elements of proof in a medical malpractice action are adeviation or departure from accepted community standards of practice, and evidence that suchdeviation or departure was a proximate cause of injury or damage" (Castro v New York City Health & Hosps.Corp., 74 AD3d 1005, 1006 [2010]; see Deutsch v Chaglassian, 71 AD3d 718, 719 [2010]; Geffner v North Shore Univ. Hosp., 57AD3d 839, 842 [2008]). "On a motion for summary judgment, a defendant physician has theburden of establishing the absence of any deviation or departure, or that the patient was notinjured thereby" (Castro v New York City Health & Hosps. Corp., 74 AD3d at 1006; see Stukas v Streiter, 83 AD3d 18,24 [2011]; Deutsch v Chaglassian, 71 AD3d at 719; Rebozo v Wilen, 41 AD3d 457, 458 [2007]). If a defendantestablishes, prima facie, his or her entitlement to judgment as a matter law, then the plaintiffmust submit evidentiary facts or materials to rebut the prima facie showing, so as to demonstratethe existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; Stukas v Streiter, 83 AD3d at 24; Castro v New York City Health & Hosps.Corp., 74 AD3d at 1006; Deutsch v Chaglassian, 71 AD3d at 719). Here, the QLIMGdefendants established their entitlement to judgment as a matter of law by submitting, inter alia,their expert's affirmation, wherein the expert opined that those defendants did not deviate fromaccepted standards of medical practice in their treatment of the decedent. The expert also opinedthat the QLIMG defendants' care and treatment of the decedent were not proximate causes of thedecedent's injuries (see Alvarez v Prospect Hosp., 68 NY2d at 324; Rebozo vWilen, 41 AD3d at 459). In opposition, the plaintiffs raised triable issues of fact throughtheir expert's affidavit (see McKenzie vClarke, 77 AD3d 637 [2010]; Boutin v Bay Shore Family Health Ctr., 59 AD3d 368 [2009]; Roca v Perel, 51 AD3d 757, 759[2008]).
The Supreme Court erred in denying those branches of MSHQ's motion which were forsummary judgment dismissing the first and third causes of action insofar as asserted against it.[*4]MSHQ established its entitlement to judgment as a matter oflaw by submitting, inter alia, its expert affirmation demonstrating that it could not be heldvicariously or concurrently liable for medical malpractice since its emergency room personneldid not depart from good and accepted medical practice in their treatment of the decedent, andthe decedent was under the care of a private physician who was not a MSHQ employee andwhose conduct was not contraindicated by normal practice such that ordinary prudence requiredinquiry into its correctness (see Toth vBloshinsky, 39 AD3d 848, 850 [2007]; see also Schultz v Shreedhar, 66 AD3d 666, 667 [2009]; Cookv Reisner, 295 AD2d 466, 467 [2002]). In opposition, the expert affirmation submitted bythe plaintiffs was insufficient to raise a triable issue of fact as to whether MSHQ departed fromgood and accepted medical practice in treating the decedent and as to whether the allegeddepartures were proximate causes of the decedent's injuries (see Alvarez v ProspectHosp., 68 NY2d at 324; Rosenmanv Shrestha, 48 AD3d 781, 784 [2008]; Whitman Realty Group, Inc. v Galano, 41 AD3d 590, 592 [2007]).Accordingly, the Supreme Court should have granted those branches of MSHQ's motion whichwere for summary judgment dismissing the first and third causes of action insofar as assertedagainst it.
MSHQ's contentions regarding the cause of action alleging lack of informed consent insofaras asserted against it are raised for the first time on appeal and, thus, are not properly before theCourt (see Coyle v Lefkowitz, 89AD3d 1054 [2011]; Parker vRaymond Corp., 87 AD3d 1115, 1117 [2011]; Whitehead v City of New York, 79 AD3d 858, 861 [2010]).
MSHQ also did not specifically argue before the Supreme Court that the cause of action torecover punitive damages insofar as asserted against it should be dismissed on the ground thatNew York does not recognize an independent cause of action for punitive damages. However,questions of law which appear on the face of the record and which could not have been avoidedif raised at the proper juncture may be raised for the first time on appeal (see Williams v Naylor, 64 AD3d588 [2009]; Matter of 200 Cent.Ave., LLC v Board of Assessors, 56 AD3d 679, 680 [2008]; Block v Magee,146 AD2d 730, 732-733 [1989]), and such a question of law is presented here. "New York doesnot recognize an independent cause of action for punitive damages. Instead, '[a] demand orrequest for punitive damages is parasitic and possesses no viability absent its attachment to asubstantive cause of action' " (Randi A.J. v Long Is. Surgi-Ctr., 46 AD3d 74, 80 [2007], quoting Rocanova v Equitable LifeAssur. Socy. of U.S., 83 NY2d 603, 616 [1994]; see Aronis v TLC Vision Ctrs., Inc., 49 AD3d 576, 577 [2008]; Yong Wen Mo v Gee Ming Chan, 17AD3d 356, 359 [2005]). Accordingly, the Supreme Court should have granted that branch ofMSHQ's motion which was for summary judgment dismissing the fourth cause of action torecover punitive damages insofar as asserted against it. For the same reason, the Supreme Courtshould have granted that branch of the QLIMG defendants' motion which was for summaryjudgment dismissing the fourth cause of action to recover punitive damages insofar as assertedagainst them.
The parties' remaining contentions are either not properly before this Court or without merit.Dillon, J.P., Dickerson, Hall and Austin, JJ., concur.