| Forrest v Tierney |
| 2012 NY Slip Op 00327 [91 AD3d 707] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| William Forrest, Appellant, et al., Plaintiff, v Sean Tierney,D.O., et al., Defendants, and Mercy Medical Center et al.,Respondents. |
—[*1] Martin Clearwater & Bell, LLP, New York, N.Y. (Arjay G. Yao, Sean F.X. Dugan, RosaleenT. McCrory, and Scott O. Frycek of counsel), for respondent Mercy Medical Center. Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., ofcounsel), for respondents Daniel G. Murphy, Christopher Edelstein, P.A., and Long IslandEmergency Care, P.C.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff WilliamForrest appeals, as limited by his brief, from so much of an order of the Supreme Court, NassauCounty (Parga, J.), entered November 9, 2010, as granted the motion of the defendant MercyMedical Center and the separate motion of the defendants Daniel G. Murphy, ChristopherEdelstein, P.A., and Long Island Emergency Care, P.C., for summary judgment dismissing thecomplaint insofar as asserted against each of them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondents appearing separately and filing separate briefs.
On December 31, 2004, at approximately 4:01 p.m., the plaintiff William Forrest (hereinafterForrest) presented to the emergency room at the defendant Mercy Medical Center (hereinafterMercy), arriving by ambulance. Forrest complained of right flank pain radiating to the rightshoulder for the past two weeks. He was examined by a triage nurse.
He was next examined by a physician's assistant, the defendant Christopher Edelstein, at 7:00p.m. Edelstein ordered a laboratory work-up, an electrocardio-gram (hereinafter EKG), a chest Xray, and a CT scan of Forrest's abdomen and pelvis. The EKG results were normal. The X rayshowed "infiltrate, perhaps with fluid at the right base" of the right lung. The CT scan of thepelvis and abdomen showed a kidney stone measuring 3 to 4 millimeters in diameter and"evidence of a right base atelectasis versus infiltrate and a small pericardial effusion." Edelsteindocumented these findings on Forrest's chart and made a preliminary diagnosis of lobarpneumonia.[*2]
Edelstein then presented the case to the defendant DanielMurphy, a physician. Murphy also performed a physical examination of Forrest. Murphy notedthat the chest X ray was positive for pneumonia, consistent with the symptoms observed. Murphynoted that he had received the CT scan results indicating an incidental, or small, pericardialeffusion. Murphy diagnosed Forrest with pneumonia based on Forrest's history, physicalexamination, and chest X ray. In addition, Forrest was diagnosed with a kidney stone and apericardial effusion.
Murphy instructed Edelstein to prescribe Forrest an antibiotic that is effective for pneumonia,and a pain medication. Murphy did not admit Forrest to the hospital because he did not presentwith any of the symptoms of toxicity which would have indicated the need for hospitaladmittance, such as low oxygen, dehydration, or unstable pulse or blood pressure. Forrest did nothave a fever, appeared healthy, had a normal white blood cell count, and had a normal EKG, andthe chest X ray showed infiltrate, but nothing "gigantic."
Forrest was discharged at 8:11 p.m. with a diagnosis of lobar pneumonia and renal calculus,or kidney stone. Forrest was given his prescriptions and told to see a recommended pulmonaryand critical care specialist at Mercy in three days and to return to the emergency room if hiscondition worsened. Forrest signed a statement stating that he received discharge instructions andwould arrange follow-up care as instructed.
Forrest did not see the recommended doctor or seek treatment from any other doctor for fivedays. On January 5, 2005, Forrest returned to the emergency room at Mercy, was admitted with adiagnosis of right lobe pneumonia with empyema, and subsequently underwent two surgicalprocedures.
Forrest, and his wife, suing derivatively, commenced this action, inter alia, to recoverdamages for medical malpractice against, among others, Mercy, Murphy, Edelstein, and LongIsland Emergency Care, P.C. Mercy, and Murphy, Edelstein, and Long Island Emergency Care,P.C. (hereinafter collectively the defendants), separately moved for summary judgmentdismissing the complaint insofar as asserted against each of them The Supreme Court granted theseparate motions. Forrest appeals, and we affirm.
The defendants established their prima facie entitlement to judgment as a matter of lawthrough, inter alia, the submission of Forrest's deposition testimony, Murphy's depositiontestimony, Forrest's medical records, and the defendants' expert affirmation. The defendants'expert opined that the defendants did not deviate from good and accepted standards of medicalcare during the treatment rendered to Forrest and that, in any event, their treatment of Forrest wasnot a proximate cause of any injuries Forrest may have sustained (see Graziano v Cooling, 79 AD3d803, 805 [2010]; Swezey vMontague Rehab & Pain Mgt., P.C., 59 AD3d 431, 433 [2009]; Breland v Jamaica Hosp. Med. Ctr., 49AD3d 789, 790 [2008]).
Contrary to Forrest's contention, the affirmation of the plaintiffs' expert, submitted inopposition to the motions, failed to raise a triable issue of fact. The plaintiffs' expert's affirmationwas conclusory and speculative, and failed to address the specific assertions of the defendants'expert, including the assertion regarding proximate cause (see Alvarez v Prospect Hosp.,68 NY2d 320, 324-325 [1986]; Stukas vStreiter, 83 AD3d 18, 25-26 [2011]; Graziano v Cooling, 79 AD3d at 805; Thompson v Orner, 36 AD3d 791[2007]; Barila v Comprehensive PainCare of Long Is., 44 AD3d 806, 807 [2007]; Rebozo v Wilen, 41 AD3d 457, 459 [2007]; DiMitri vMonsouri, 302 AD2d 420, 421 [2003]; Domaradzki v Glen Cove Ob/Gyn Assoc.,242 AD2d 282 [1997]). For example, the plaintiffs' expert did not contradict the defendants'expert's opinion that Forrest did not exhibit symptoms requiring hospitalization on December 31,2004. Furthermore, Forrest himself testified at his deposition that he did not follow the aftercareinstructions provided to him by the defendants to follow up with the pulmonary and critical carespecialist at Mercy within three days. Therefore, there was no support for the expert's conclusoryand speculative statement that Forrest's claimed injuries were caused or worsened by thedefendants' alleged deviations from the recognized standard of care (see Graziano vCooling, 79 AD3d at 805; Dixon v Freuman, 175 AD2d 910, 911 [1991]).Accordingly, the Supreme Court properly granted the defendants' motions for summary judgmentdismissing the complaint insofar as asserted [*3]against them.Dillon, J.P., Florio, Chambers and Miller, JJ., concur.