| Parrilla v Buccellato |
| 2012 NY Slip Op 03820 [95 AD3d 1091] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Miriam Parrilla, Respondent, v John Buccellato, Appellant,et al. Defendant. |
—[*1] Silberstein, Awad & Miklos, P.C., Garden City, N.Y. (Dana E. Heitz of counsel), forrespondent.
In an action to recover damages for medical malpractice and wrongful death, the defendantJohn Buccellato appeals from so much of an order of the Supreme Court, Kings County (Bunyan,J.), dated January 19, 2011, as denied his motion for summary judgment dismissing thecomplaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendant John Buccellato for summary judgment dismissing the complaint insofaras asserted against him is granted.
At 8:07 a.m. on January 5, 2006, 79-year-old Ramon Parilla-Torres (hereinafter the decedent)was admitted to the emergency room at The Brooklyn Hospital Center (hereinafter the hospital)complaining of wheezing and nonproductive cough for the prior three days. Upon admission, hiscondition was classified as "non-urgent" by a triage nurse. After being examined by theemergency room resident, an electrocardio-gram (hereinafter EKG) revealed that the decedenthad atrial fibrillation. At 9:30 a.m., the defendant John Buccellato (hereinafter the appellant), theattending physician in the emergency room, examined the decedent and authored a noteindicating an initial impression of new onset atrial fibrillation and new onset congestive heartfailure. A laboratory analysis of the decedent's cardiac enzymes subsequently indicated that hewas suffering from an evolving myocardial infarction (hereinafter MI). Approximately two hoursafter the decedent was admitted to the emergency room, the appellant referred the patient to acardiac care service that admitted the decedent and took over the management of his condition.At approximately 6:00 p.m. that evening, the decedent died from, inter alia, acute MI.
Thereafter, the plaintiff, the decedent's daughter and administratrix of his estate, commencedthis action against, among others, the appellant to recover damages for medical malpractice andwrongful death, alleging, among other things, that the decedent should not have been classifiedas "non-urgent" by the triage nurse, that the appellant should have ordered a cardiology consultonce the results of the EKG were received, and that the decedent should have been [*2]administered nitroglycerine at some point prior to his death. Theappellant moved for summary judgment dismissing the complaint insofar as asserted against him,and the Supreme Court, inter alia, denied the motion. We reverse the order insofar as appealedfrom.
The appellant demonstrated his prima facie entitlement to judgment as a matter of law byestablishing, through an expert's affirmation, that he did not depart from good and acceptedmedical practice in treating the decedent and that, in any event, his treatment was not a proximatecause of the decedent's death (see Nunezv Long Is. Jewish Med. Ctr.-Schneider Children's Hosp., 82 AD3d 724, 725 [2011]; Arkin v Resnick, 68 AD3d 692[2009]). His expert opined that, in his role as an emergency room physician, the appellantproperly prescribed anticoagulants and medications to control the decedent's ventricular rate. Hisexpert further opined that the appellant properly admitted the decedent to a cardiac care unit atthe hospital once the lab results of the decedent's cardiac enzymes became available, indicatingthat the decedent was suffering from an MI. Furthermore, the expert opined that the appellant'streatment played no part in causing the decedent's cardiogenic shock and heart failure, whichoccurred several hours after he had been transferred to the cardiac care service. Contrary to theplaintiff's contention, the appellant's responsibility for the decedent ended when his care wastransferred to another attending physician (see Dombroski v Samaritan Hosp., 47 AD3d 80 [2007]).
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's experts opinedthat the decedent's presentation in the emergency room and the results of the EKG performedwhile the decedent was still under the appellant's care suggested that the decedent was sufferingfrom an MI approximately an hour before the lab results showing the decedent's elevated cardiacenzymes confirmed this diagnosis. The experts opined that the appellant therefore departed fromgood and accepted medical practice by failing to order a cardiology consult once the results of theEKG were received. However, the plaintiff's experts failed to raise a triable issue of fact as towhether this alleged departure, which resulted in a delay of about an hour in referring thedecedent to the cardiac care service, was a proximate cause of the decedent's death (see Orsi v Haralabatos, 89 AD3d997, 998 [2011], lv granted 18 NY3d 809 [2012]; Wilkins v Khoury, 72 AD3d 1067,1068 [2010]; see generally Stukas vStreiter, 83 AD3d 18, 24 [2011]). Furthermore, the remaining allegations of malpracticecited by the plaintiff's experts were conclusory and failed to differentiate between the acts andomissions of the different treatment providers (see Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]; Dellacona v Dorf, 5 AD3d 625,625 [2004]; Kaplan v Hamilton Med. Assoc., 262 AD2d 609, 610 [1999]). Accordingly,the Supreme Court should have granted the appellant's motion for summary judgment dismissingthe complaint insofar as asserted against him. Skelos, J.P., Belen, Lott and Miller, JJ., concur.