| Garrett v University Assoc. in Obstetrics & Gynecology, P.C. |
| 2012 NY Slip Op 03405 [95 AD3d 823] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Lynn Garrett, Respondent, v University Associates inObstetrics & Gynecology, P.C., et al., Defendants, and Brookhaven Memorial Hospital MedicalCenter et al., Appellants. |
—[*1] Kelner & Kelner, New York, N.Y. (Gerard K. Ryan, Jr., of counsel), forrespondent.
In an action to recover damages for medical malpractice and lack of informed consent, thedefendants Brookhaven Memorial Hospital Medical Center and Alan I. Nemeth appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini,J.), entered April 1, 2011, as denied their motion for summary judgment dismissing thecomplaint insofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion of the defendants Brookhaven Memorial Hospital Medical Center and AlanI. Nemeth which was for summary judgment dismissing the complaint insofar as asserted againstthe defendant Alan I. Nemeth, and substituting therefor a provision granting that branch of themotion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
On January 31, 2005, the plaintiff suffered a bowel perforation during a bilateral tuballigation performed by the defendant Sara Petruska at Stony Brook University Hospital(hereinafter Stony Brook). The perforation was not discovered during the surgery, and theplaintiff was discharged from Stony Brook the same day. After her discharge, the plaintiff was insevere pain, so she went that night to the emergency room at the defendant BrookhavenMemorial Hospital Medical Center (hereinafter Brookhaven). On February 1, 2005, atapproximately 1:30 a.m., she was seen by the defendant Alan I. Nemeth, who ordered a CT scanand various other tests and procedures. Because of the plaintiff's inability to stay still, the CTscan was delayed, and it was not done until shortly after Nemeth's shift had ended and theplaintiff's care had been transferred to Robert Ehlers. The radiologist's report of the CT scanindicated that the etiology of certain findings "includes bowel perforation," and advised "[p]leasecorrelate clinically." The plaintiff was nonetheless discharged from Brookhaven that day. Shelater returned to Stony Brook, where the perforation was eventually diagnosed and treated. Bythen, however, infection had set in and the plaintiff allegedly suffered severe consequentialinjuries.[*2]
The plaintiff commenced this action, inter alia, to recoverdamages for medical malpractice against Petruska and her professional corporations, UniversityAssociates in Obstetrics & Gynecology, P.C., University Associates in Obstetrics & Gynecology,and University Faculty Practice Corporation, as well as Nemeth and Brookhaven. She alsoasserted a cause of action against Petruska and her professional corporations alleging lack ofinformed consent. With respect to Nemeth and Brookhaven, the plaintiff alleged, among otherthings, that the failure of Nemeth and Ehlers to order various consults, obtain certain recordsfrom Stony Brook, and diagnose the bowel perforation was a departure from the acceptedstandard of care and that the departure proximately caused or contributed to her injuries. Nemethand Brookhaven (hereinafter together the appellants) moved for summary judgment dismissingthe complaint insofar as asserted against them. The Supreme Court, inter alia, denied theappellants' motion, determining that, in opposition to the appellants' prima facie showing, theplaintiff demonstrated the existence of triable issues of fact.
"In order to establish the liability of a physician for medical malpractice, a plaintiff mustprove that the physician deviated or departed from accepted community standards of practice,and that such departure was a proximate cause of the plaintiff's injuries" (Stukas v Streiter, 83 AD3d 18, 23[2011]; see Caggiano v Cooling, 92AD3d 634 [2012]; Myers vFerrara, 56 AD3d 78, 83 [2008]). A physician moving for summary judgmentdismissing a complaint alleging medical malpractice must establish, prima facie, either that therewas no departure or that any alleged departure was not a proximate cause of the plaintiff'sinjuries (see Faicco v Golub, 91AD3d 817, 818 [2012]; Stukas v Streiter, 83 AD3d at 24). The burden shifts to theplaintiff to demonstrate the existence of a triable issue of fact only upon the defendant physician'smeeting the initial burden (see Savage vQuinn, 91 AD3d 748, 750 [2012]), and only as to the elements on which the defendantmet the prima facie burden (see Haydenv Gordon, 91 AD3d 819, 821 [2012]; Stukas v Streiter, 83 AD3d at 24).
Here, the Supreme Court implicitly, and correctly, determined that the appellants established,prima facie, that neither Nemeth nor Ehlers departed from the applicable standard of care in theirtreatment of the plaintiff. The Supreme Court also correctly determined that the appellantsestablished, prima facie, that nothing Nemeth or Ehlers did, or failed to do, proximately causedor contributed to the plaintiff's injuries consequent to the perforation that occurred during thesurgery at Stony Brook (see Orsi vHaralabatos, 89 AD3d 997, 998 [2011], lv granted 18 NY3d 809, 2012 NY SlipOp 68316 [2012]). Thus, the burden shifted to the plaintiff to demonstrate the existence of triableissues of fact with respect to both doctors as to both departure and proximate cause. Based on theaffidavits submitted by the plaintiff's expert witnesses, the Supreme Court correctly determinedthat the plaintiff raised a triable issue of fact as to whether Nemeth and Ehlers departed from theaccepted standard of care (see Hayden v Gordon, 91 AD3d at 821). The plaintiff alsoraised a triable issue of fact as to whether Ehlers's alleged departures, specifically in dischargingthe plaintiff from the hospital without diagnosing the perforation, proximately caused orcontributed to her injuries (seeSandmann v Shapiro, 53 AD3d 537, 537-538 [2008]). The expert affidavits adequatelyopined to a reasonable degree of medical certainty that Ehlers's failure to diagnose the perforationwas a proximate cause of the significant worsening of the plaintiff's injuries following theperforation itself. Accordingly, the Supreme Court properly denied that branch of the appellants'motion which was for summary judgment dismissing the complaint insofar as asserted againstBrookhaven (see Stukas v Streiter, 83 AD3d at 31).
The plaintiff failed, however, to demonstrate the existence of a triable issue of fact as towhether Nemeth's alleged departures proximately caused or contributed to the plaintiff's injuries(see Barrett v Hudson Val.Cardiovascular Assoc., P.C., 91 AD3d 691, 692-693 [2012]; Orsi v Haralabatos,89 AD3d at 998). Nemeth ordered a CT scan, which, as noted in the radiologist's report, revealedthe possibility of a perforation. Nemeth had already transferred the plaintiff's care to Ehlers bythe time that test was performed, and, thus, Nemeth is not responsible for the failure to act on thereport. Moreover, the plaintiff's expert affidavits did not explain how Nemeth's allegeddepartures, such as his failure to order surgical and gynecologic consults, delayed discovery ofthe perforation. In particular, the plaintiff's experts failed to explain how, absent Nemeth'salleged departures, the perforation would have been discovered any earlier than it would havebeen if prompt attention had been given to the radiologist's report of the CT scan. Consequently,there is nothing in this record that raises a triable issue of fact as to whether Nemeth's allegedfailures delayed the [*3]discovery and treatment of the perforation(see Andreoni v Richmond, 82AD3d 1139, 1140 [2011]).
Since the plaintiff failed to raise a triable issue of fact as to whether Nemeth's allegeddepartures proximately caused or contributed to the plaintiff's injuries, the Supreme Court shouldhave granted that branch of the appellants' motion which was for summary judgment dismissingthe complaint insofar as asserted against Nemeth (see Orsi v Haralabatos, 89 AD3d at998). Balkin, J.P., Leventhal, Roman and Sgroi, JJ., concur. [Prior Case History: 31 Misc 3d1207(A), 2011 NY Slip Op 50528(U).]