| Derusha v Sellig |
| 2012 NY Slip Op 01407 [92 AD3d 1193] |
| February 23, 2012 |
| Appellate Division, Third Department |
| —Timothy J. Derusha, Appellant, v Robert G. Sellig,Respondent, et al., Defendants. |
—[*1] Thuillez, Ford, Gold, Butler & Young, L.L.P., Albany (Kelly M. Monroe of counsel), forrespondent.
Stein, J. Appeal from an order of the Supreme Court (Krogmann, J.), entered May 18, 2011in Warren County, which granted defendant Robert G. Sellig's motion for summary judgmentdismissing the complaint against him.
In August 2001, plaintiff injured himself in his employer's parking lot when his knee gaveout. Plaintiff was examined at defendant Adirondack Orthopedic Physicians and Surgeons(hereinafter Adirondack) by defendant Robert G. Sellig (hereinafter defendant), a medical doctorat Adirondack.[FN1]In the course of his physical examination of plaintiff's knee at that time, defendant heard a "clickover the medial joint line." Based on this examination, defendant diagnosed plaintiff with a tornmedial meniscus, referred him to defendant Douglas M. Petroski, another medical doctor atAdirondack, and requested authorization for a medial meniscectomy to be performed by Petroski.Twelve days later, plaintiff saw Petroski, who subsequently performed a medial meniscectomyand discovered that plaintiff did not have a torn medial meniscus. Plaintiff thereafter hadmultiple elective surgeries on his knee, followed by a knee replacement, which led to an infectedprosthesis and staph infection. Ultimately, plaintiff elected [*2]toundergo an above-the-knee amputation. Plaintiff commenced the instant action for medicalmalpractice against, among others, Adirondack and several doctors at Adirondack, includingdefendant. Defendant moved for summary judgment dismissing the complaint against him.Supreme Court granted defendant's motion and this appeal by plaintiff ensued.
We reverse. As the proponent of a motion for summary judgment in a medical malpracticeaction, defendant " 'bore the initial burden of establishing that there was no departure fromaccepted standards of practice or that plaintiff was not injured thereby' " (Menard v Feinberg, 60 AD3d1135, 1136 [2009], quoting Amodio v Wolpert, 52 AD3d 1078, 1079 [2008]). Here, plaintiffalleged that defendant deviated from the standard of care by, among other things, failing toproperly examine, test, diagnose and treat plaintiff's knee injury and pain. Defendant " 'rebut[ted]plaintiff's claim of [medical] malpractice with factual proof' " (Suib v Keller, 6 AD3d 805, 806[2004], quoting Horth v Mansur, 243 AD2d 1041, 1042 [1997]; see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]) by submitting affidavits—including hisown detailed affidavit (see Suib v Keller, 6 AD3d at 806)—deposition testimonyand medical records. Defendant testified regarding, among other things, the standard of careapplicable at the time of plaintiff's examination. In his affidavit, he specifically averred that, inhis opinion, an MRI was not indicated for evaluation of plaintiff's left knee,[FN2]and that "no act or omission by [him] caused or contributed to any injury that [plaintiff] isalleging in this lawsuit." This evidence was sufficient to establish defendant's prima facieentitlement to judgment in his favor as a matter of law, thus shifting the burden to plaintiff todemonstrate a triable question of fact with regard to defendant's departure from accepted medicalpractice and whether such departure was the proximate cause of plaintiff's injury (see Alvarezv Prospect Hosp., 68 NY2d at 324; Adams v Anderson, 84 AD3d 1522, 1523 [2011]; Caulkins v Vicinanzo, 71 AD3d1224, 1226 [2010]; Menard v Feinberg, 60 AD3d at 1137).
To that end, plaintiff submitted the affidavit of Lawrence Weis, an orthopedic surgeon, whoopined that defendant deviated from the applicable standard of care by, among other things,failing to "obtain an appropriate history," "perform an appropriate physical exam," or "obtain andconfirm the diagnosis of [a] torn medial meniscus by an MRI." Notably, Weis averred that afinding of a click over the medial joint line upon physical examination is an inadequate basisupon which to diagnose a medial meniscus tear. Weis further opined that defendant's deviationsfrom the standard of care resulted in plaintiff having to undergo an "unnecessary and anunindicated left knee arthroscopic surgery" and were a substantial factor in causing plaintiff toincur specified additional injuries. In our view, Weis' affidavit was sufficient to demonstratetriable issues of fact regarding the appropriate standard of care and whether any deviation bydefendant therefrom was a substantial factor in causing plaintiff's injuries (see Hickey v Arnot-Ogden Med. Ctr.,79 AD3d 1400, 1401 [2010]; Menard v Feinberg, 60 AD3d at 1137-1138;Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]), thereby precludingsummary judgment (see Datiz v Shoob, 71 NY2d 867, 869 [1988]; Plourd v Sidoti, 69 AD3d 1038,1039 [2010]; Carter v Tana, 68AD3d 1577, 1579-1580 [2009]).
Finally, defendant's claim that he bears no liability to plaintiff because he merely [*3]referred plaintiff to Petroski, who performed his own examinationand made an independent diagnosis, is unavailing. Where, as here, "there is evidence in therecord from which the jury could . . . conclude[ ] that defendant—thereferring [physician]—had been independently negligent in diagnosing . . .plaintiff's condition, and that this misdiagnosis constituted a proximate cause of plaintiff'sinjuries . . . , defendant, as the initial wrongdoer, cannot escape liability merely byshowing that the subsequent treating physician to whom plaintiff was referred was alsonegligent" (Datiz v Shoob, 71 NY2d at 868-869).
Rose, J.P., Malone Jr. and McCarthy, JJ., concur. Ordered that the order is reversed, on thelaw, with costs, and motion denied.
Footnote 1: This was the only time plaintiffsaw defendant.
Footnote 2: Defendant testified that, at thetime of his physical examination of plaintiff in August 2001, the standard of care did not requirean MRI, but that, at the time of his deposition in December 2009, the standard of care did requiresuch a scan.