| Barrett v Hudson Val. Cardiovascular Assoc., P.C. |
| 2012 NY Slip Op 00317 [91 AD3d 691] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Beatrice Barrett, Appellant, v Hudson ValleyCardiovascular Associates, P.C., Doing Business as The Heart Center, et al., Respondents, et al.,Defendants. |
—[*1] Feldman, Kleidman & Coffey, LLP, Fishkill, N.Y. (Marsha S. Weiss of counsel), forrespondent Hudson Valley Cardiovascular Associates, P.C., doing business as the Heart Center. Sholes & Miller, LLP, Poughkeepsie, N.Y. (Sarah E. Sholes of counsel), for respondentPamela Torres.
In an action to recover damages for medical malpractice, the plaintiff appeals from an orderof the Supreme Court, Dutchess County (Sproat, J.), dated October 15, 2010, which granted theseparate motions of the defendant Pamela Torres and the defendant Hudson ValleyCardiovascular Associates, P.C., doing business as the Heart Center, for summary judgmentdismissing the complaint insofar as asserted against each of them.
Ordered that the order is affirmed, with one bill of costs.
On October 16, 2007, the plaintiff underwent a chemical stress test, known as a MyocardialPerfusion Study with Nuclear Imaging, at the defendant Hudson Valley CardiovascularAssociates, P.C., doing business as the Heart Center (hereinafter the Heart Center). The testinvolves the establishment of an intravenous (hereinafter IV) line and the insertion of an IVneedle into the veins of a patient's arm to enable the administration of the chemical Adenosine, aprocedure which takes the place of the physical exercise and exertion frequently induced for thepurpose of measuring heart function. The plaintiff alleged that the defendant Pamela Torres, aregistered nurse employed by the Heart Center, negligently established the IV line and injured herright median nerve while inserting a butterfly needle in her right arm slightly above the elbow.The plaintiff claimed that the nerve injury caused permanent damage to her right arm andconstant pain to her right arm, shoulder, and several fingers.
On a motion for summary judgment, the defendant has the "burden of establishing [*2]the absence of any departure from good and accepted medicalpractice or that the plaintiff was not injured thereby" (Rebozo v Wilen, 41 AD3d 457, 458 [2007]; see Stukas v Streiter, 83 AD3d 18[2011]; Keevan v Rifkin, 41 AD3d661 [2007]; Thompson vOrner, 36 AD3d 791, 792 [2007]). To successfully oppose the motion, the plaintiff"must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as todemonstrate the existence of a triable issue of fact" (Deutsch v Chaglassian, 71 AD3d 718, 719 [2010]; see Garbowski v Hudson Val. Hosp.Ctr., 85 AD3d 724, 726 [2011]). General allegations that are conclusory andunsupported by competent evidence tending to establish the essential elements of medicalmalpractice are insufficient to defeat summary judgment (see Alvarez v Prospect Hosp.,68 NY2d 320, 325 [1986]; Flanagan vCatskill Regional Med. Ctr., 65 AD3d 563, 565 [2009]).
Torres and the Heart Center (hereinafter together the defendants) established their primafacie entitlement to judgment as a matter of law by submitting the expert affidavits of aneurologist and a cardiologist. Both expert affidavits were detailed and concluded that, based onthe medical records, there was no objective evidence that the plaintiff's injuries were related tothe establishment and insertion of the IV line and needle by Torres. In opposition, the plaintiffsubmitted an affidavit from a registered nurse, Mari Cordes, and an affirmation from neurologistMichael Weintraub. Both of the plaintiff's experts concluded that the plaintiff suffered from anerve injury, which was caused by Torres's establishment and insertion of the IV line and needleinto her veins during the course of the chemical stress test. However, Cordes did not explain howTorres's alleged deviations from the standard of care, including the alleged failure to explain theprocedure to the plaintiff and follow up on the plaintiff's complaints, resulted in injury to theplaintiff's nerve, and did not refer to any facts or evidence to support her conclusion that theplaintiff's injury was proximately caused by Torres's actions. Similarly, Dr. Weintraub'saffirmation and attached report were conclusory, and summarily stated that the plaintiff sufferedfrom a nerve injury caused by Torres's insertion of the IV needle during the stress test. Dr.Weintraub's affirmation and report also failed to address the contentions raised by the defendants'experts and failed to refer to any specific facts or other evidence to support his conclusion thatthe plaintiff's right median nerve was injured by the establishment and insertion of the IV lineand needle. Accordingly, neither Cordes's affidavit, nor Dr. Weintraub's affirmation and report,were sufficient to raise a triable issue of fact as to whether Torres's alleged deviations were aproximate cause of the plaintiff's injuries (see Garbowski v Hudson Val. Hosp. Ctr., 85AD3d at 727; Andreoni vRichmond, 82 AD3d 1139, 1140 [2011]; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842 [2008];DiMitri v Monsouri, 302 AD2d 420, 421 [2003]). Thus, the Supreme Court properlygranted the separate motions of Torres and the Heart Center for summary judgment dismissingthe complaint insofar as asserted against each of them. Dillon, J.P., Dickerson, Eng andLeventhal, JJ., concur.