| Lau v Wan |
| 2012 NY Slip Op 02086 [93 AD3d 763] |
| March 20, 2012 |
| Appellate Division, Second Department |
| Jeannie Lau et al., Respondents, v Stephen Wan et al.,Defendants, and Joyce Cheung, Appellant. |
—[*1]
Morelli Ratner, P.C., New York, N.Y. (David S. Ratner and Jennie Shatynski of counsel), forrespondents. McAloon & Friedman, P.C., New York, N.Y. (Gina B. DiFolco, Kenneth P. Starace, andLaura R. Shapiro of counsel), for defendants Stephen Wan, Stephen Wan, M.D., PLLC, and BethIsrael Medical Center.
In an action to recover damages for medical malpractice, etc., the defendant Joyce Cheungappeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated April 6, 2011,which denied her motion for summary judgment dismissing the complaint insofar as assertedagainst her and her alternative application to direct the plaintiffs' expert witness to submit to ahearing pursuant to Frye v United States (293 F 1013 [1923]) and Parker v Mobil Oil Corp. (7 NY3d434 [2006]).
Ordered that the appeal from so much of the order as denied the application to direct theplaintiffs' expert witness to submit to a hearing pursuant to Frye v United States (293 F1013 [1923]) and Parker v Mobil OilCorp. (7 NY3d 434 [2006]), is dismissed on the ground that such portion of the order isnot appealable as of right (see CPLR 5701 [a] [2]), and we decline to grant leave toappeal, and on the ground that the appeal from that portion of the order has been renderedacademic in light of our disposition herein; and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, and the motion of thedefendant Joyce Cheung for summary judgment dismissing the complaint insofar as assertedagainst her is granted; and it is further,
Ordered that one bill of costs is awarded to the appellant, payable by the plaintiffs.
On April 2, 2004, the plaintiff Jeannie Lau gave birth to the infant plaintiff, Chloe Soo-Hoo(hereinafter the child), at the defendant hospital Beth Israel Medical Center (hereinafter BethIsrael). The defendant physician Stephen Wan delivered the child vaginally. The child, who wasmacrosomic (i.e., extra large) at the time of birth, suffered an Erb's palsy/brachial plexus injuryduring delivery. The defendant physician Joyce Cheung, an employee of the defendant medical[*2]practice Stephen Wan, M.D., PLLC, had provided most ofLau's prenatal treatment up to her last visit on March 29, 2004. Wan was the last physician totreat Lau prenatally when, on April 1, 2004, he treated her prior to delivering the child the nextday.
The plaintiffs commenced this action alleging, inter alia, that Cheung deviated from acceptedmedical practice when, after estimating the child's fetal weight on March 29, 2004, to be 3,700grams, she failed to recommend delivering the child by cesarean section rather than vaginally.The plaintiffs alleged that Lau's gestational diabetes increased the likelihood that, at birth, thechild would be of a large size, thus warranting a cesarean section, and that the injuries sufferedby the child could have been prevented had she been delivered by cesarean section. Cheungmoved for summary judgment dismissing the complaint insofar as asserted against her. In anorder dated April 6, 2011, the Supreme Court, inter alia, denied the motion, concluding thattriable issues of fact existed. Cheung appeals, and we reverse the order insofar as reviewed.
The requisite elements of proof in a medical malpractice action are a deviation or departurefrom accepted community standards of medical practice, and evidence that such deviation ordeparture was a proximate cause of injury or damage (see Castro v New York City Health & Hosps. Corp., 74 AD3d1005 [2010]; Deutsch vChaglassian, 71 AD3d 718, 719 [2010]; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842 [2008]). Adefendant physician moving for summary judgment in a medical malpractice action has theinitial burden of establishing, prima facie, either the absence of any departure from good andaccepted medical practice or that any departure was not the proximate cause of the allegedinjuries (see Shichman v Yasmer,74 AD3d 1316 [2010]; Larsen vLoychusuk, 55 AD3d 560, 561 [2008]; Sandmann v Shapiro, 53 AD3d 537 [2008]).
Cheung met her initial burden of demonstrating that she did not deviate from acceptedmedical practice in declining to recommend that Lau deliver the child by cesarean section,through, inter alia, her expert's affidavit, in which the expert opined that, as of the last date oftreatment of Lau, Cheung correctly estimated the fetal weight of the child at 3,700 grams, whichwas below the threshold of macrosomia and, thus, given that Lau's gestational diabetes was undercontrol and her pregnancy otherwise normal, delivery by cesarean section was not indicated.Further, Cheung demonstrated, prima facie, that her alleged malpractice was not a proximatecause of the plaintiffs' injuries, through evidence showing that Lau's condition had dramaticallychanged during the several days after her last visit with Cheung. Specifically, during that timeperiod, Lau gained 4.5 pounds and, by the time of her subsequent visit with Wan, Wan decided todeliver the child vaginally despite observing shoulder dystocia in utero during labor (seeRodriguez v New York City Health & Hosps. Corp., 245 AD2d 174 [1997]).
In opposition to Cheung's prima face showing, the plaintiffs failed to raise a triable issue offact (see generally Castro v New York City Health & Hosps. Corp., 74 AD3d at 1005;Deutsch v Chaglassian, 71 AD3d at 719). Since the expert affidavits they submitted wereconclusory, speculative, and without basis in the record, they were insufficient to defeat summaryjudgment (see Andreoni vRichmond, 82 AD3d 1139 [2011]; Ellis v Eng, 70 AD3d 887 [2010]; Micciola v Sacchi, 36 AD3d 869,871-872 [2007]).
Accordingly, the Supreme Court should have granted Cheung's motion for summaryjudgment dismissing the complaint insofar as asserted against her.
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Balkin, J.P., Eng, Hall and Sgroi, JJ., concur.