| Yaegel v Ciuffo |
| 2012 NY Slip Op 03832 [95 AD3d 1110] |
| May 15, 2012 |
| Appellate Division, Second Department |
| John Yaegel et al., Appellants, v Joseph Ciuffo, M.D.,Respondents, et al., Defendants. |
—[*1] Geisler & Gabriele, LLP, Garden City, N.Y. (Lori A. Marano of counsel), for respondentJoseph Ciuffo. Voute, Lohrfink, Magro & McAndrew, LLP, White Plains, N.Y. (Joan S. Levin of counsel),for respondent Sidney Rosman.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal, aslimited by their brief, from (1) so much of an order of the Supreme Court, Queens County(O'Donoghue, J.), dated March 30, 2011, as granted those branches of the separate motions of thedefendants Joseph Ciuffo and Sidney Rosman which were for summary judgment dismissing thecauses of action to recover damages for medical malpractice insofar as asserted against each ofthose defendants, and (2) so much of a judgment of the same court entered July 6, 2011, as, uponthe order, is in favor of those defendants and against them dismissing the causes of action torecover damages for medical malpractice insofar as asserted against each of those defendants.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law, those branches ofthe separate motions of the defendants Joseph Ciuffo and Sidney Rosman which were forsummary judgment dismissing the causes of action to recover damages for medical malpracticeinsofar as asserted against each of them are denied, those causes of action are reinstated, and theorder dated March 30, 2011, is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
In 1994, the injured plaintiff, John Yaegel, went to his primary care physician, the [*2]defendant Joseph Ciuffo, with complaints of blood in his stool.Ciuffo referred the injured plaintiff to a gastroenterologist, the defendant Sidney Rosman. InApril 1994, Rosman diagnosed the plaintiff with Crohn's disease and prescribed Asacol. Over thenext several years, the injured plaintiff was treated by both Ciuffo and Rosman, and except for aperiod from 1997 or 1998 to 2000, the injured plaintiff continued, with the knowledge of bothphysicians, to take Asacol as prescribed by Rosman.
The injured plaintiff alleged that after several years of Asacol use, he complained to Ciuffoduring a December 22, 2005, appointment, and to Rosman during a January 4, 2006,appointment, of various symptoms consistent with renal problems. In January 2006 the injuredplaintiff was rushed to a hospital, where physicians diagnosed him with interstitial nephritis, akidney disease that the injured plaintiff asserts was caused by the use of Asacol.
The injured plaintiff, with his wife suing derivatively, commenced this action against, amongothers, Ciuffo and Rosman, alleging, among other things, that they failed to conduct appropriateperiodic blood tests to monitor for possible kidney damage while he was taking Asacol. Theplaintiffs also alleged that Ciuffo, who had knowledge that Rosman had prescribed Asacol to theplaintiff, deviated from accepted medical standards by failing to order a renal chem panel onDecember 22, 2005, on which date the injured plaintiff had presented to him with symptomsconsistent with renal problems. The plaintiffs further alleged that Rosman deviated fromaccepted medical standards by, inter alia, failing to order blood tests over the approximately twoyears prior to the onset of the interstitial nephritis and in failing to order the necessary tests onJanuary 4, 2006, when the injured plaintiff presented to him with symptoms consistent with renalproblems.
Ciuffo and Rosman separately moved for summary judgment dismissing the complaintinsofar as asserted against each of them. The Supreme Court granted the motions and entered ajudgment dismissing the complaint insofar as asserted against Ciuffo and Rosman.
" 'The essential elements of medical malpractice are (1) a deviation or departure fromaccepted medical practice, and (2) evidence that such departure was a proximate cause of injury'" (Faicco v Golub, 91 AD3d817, 818 [2012], quoting Roca vPerel, 51 AD3d 757, 758 [2008]). Thus, on a motion for summary judgment dismissinga cause of action to recover damages for medical malpractice, "the defendant doctor has theinitial burden of establishing the absence of any departure from good and accepted medicalpractice or that the plaintiff was not injured thereby" (Barnett v Fashakin, 85 AD3d 832, 834 [2011]; see Faicco vGolub, 91 AD3d at 818; Roca v Perel, 51 AD3d at 758-759).
Here, Ciuffo failed to establish as a matter of law that his failure to order a renal chem panelon December 22, 2005, did not deviate from the accepted standards of care, and also failed tosupport his expert's conclusory assertions that no act or omission on his part was a proximatecause of the injured plaintiff's injuries. In essence, Ciuffo's expert "merely recounted theplaintiff's complaints to [the defendant] and the treatment rendered, and opined in a conclusorymanner that such treatment did not depart from good and accepted medical practice" (Couchv County of Suffolk, 296 AD2d 194, 198 [2002]). The proffered expert's opinion was,therefore, purely conclusory and was insufficient to establish Ciuffo's prima facie entitlement tojudgment as a matter of law (see Kotlerv Swersky, 10 AD3d 350, 352 [2004]; Couch v County of Suffolk, 296 AD2d at198). In light of Ciuffo's failure to meet his initial burden of establishing his entitlement tojudgment as a matter of law, we need not consider the sufficiency of the plaintiffs' oppositionpapers on this issue (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Rosman failed to establish, prima facie, that he did not deviate from good and acceptedmedical practice in failing to order periodic blood tests during the time that he prescribed Asacolto the injured plaintiff, as his expert proffered only a conclusory opinion that Rosman'smonitoring of blood levels was within the bounds of accepted medical practice (see Kotler vSwersky, 10 AD3d at 352; see also Ayotte v Gervasio, 81 NY2d 1062 [1993]).However, his expert's affirmation did make a prima facie showing that his alleged failure to orderperiodic blood tests in 2005 was not the proximate cause of the injured plaintiff's injuries (seeAlvarez v Prospect Hosp., 68 NY2d at 324; Roca v Perel, 51 AD3d at 759). Inopposition, however, the plaintiffs' expert raised a triable issue of fact as to whether Rosman'sfailure to order blood tests in 2005 and on [*3]January 4, 2006,was a proximate cause of the injured plaintiff's injuries (see Alvarez v Prospect Hosp., 68NY2d at 324; Wexelbaum v Jean,80 AD3d 756, 758 [2011]; Feinbergv Feit, 23 AD3d 517, 519 [2005]).
Accordingly, the Supreme Court should have denied those branches of the separate motionsof Ciuffo and Rosman which were for summary judgment dismissing the causes of action torecover damages for medical malpractice insofar as asserted against each of them. Dillon, J.P.,Eng, Belen and Sgroi, JJ., concur.