| Martino v Miller |
| 2012 NY Slip Op 05688 [97 AD3d 1009] |
| July 19, 2012 |
| Appellate Division, Third Department |
| Melissa Martino, Appellant, v James Miller,Respondent. |
—[*1] Thuillez, Ford, Gold, Butler & Young, LLP, Albany (Daisy Ford Paglia of counsel), forrespondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Devine, J.), entered April 19,2011 in Albany County, which, among other things, granted defendant's motion for summaryjudgment dismissing the complaint.
Defendant, a board-certified plastic surgeon, performed numerous surgeries onplaintiff,[FN1]including, in late September 2006, a bilateral breast reduction surgery, and, at the same time,liposuction and brachioplasty. During the breast reduction surgery, defendant used a techniqueknown as the pedicle technique, which involves preserving a pedicle of pyramid-shaped tissueattached to the nipple areolar complex (hereinafter NAC). Plaintiff was released from thehospital and presented to defendant for follow-up care. On her third follow-up visit, defendantnoted that the NAC tissue on plaintiff's right breast displayed some superficial skin loss anddiminished sensation. The tissue continued to deteriorate and, by the end of November 2006,defendant informed plaintiff that reconstructive surgery might be needed to [*2]correct the damage done to it. Plaintiff ceased treating withdefendant and commenced this medical malpractice action alleging that he was negligent in themanner in which the surgery was performed and in the care he provided following the surgery.Thereafter, defendant moved for summary judgment dismissing the complaint and plaintiffcross-moved for summary judgment seeking to dismiss certain affirmative defenses raised bydefendant. Supreme Court granted defendant's motion and denied plaintiff's cross motion.Plaintiff now appeals.
As the movant for summary judgment in a medical malpractice action, defendant wasrequired to establish that during his treatment of plaintiff, " 'there was no departure from acceptedstandards 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]; accord Derusha v Sellig, 92 AD3d1193, 1193 [2012]; see Hickey vArnot-Ogden Med. Ctr., 79 AD3d 1400, 1401 [2010]). In such an action, the affidavit ofa defendant physician may be sufficient to meet that burden if it is "detailed, specific and factualin nature and does not assert in simple conclusory form that the physician acted within theaccepted standards of medical care" (Toomey v Adirondack Surgical Assoc., 280 AD2d754, 755 [2001]; see Horth v Mansur, 243 AD2d 1041, 1042 [1997]).
Here, defendant affirmed that there were no complications during the surgical procedure heperformed on plaintiff and that he comported with appropriate standards of medical care.Defendant stated that he chose the pedicle surgical technique—one that he had maintainedis commonly employed in breast reduction surgical procedures performed in the UnitedStates—because "the viability of the [NAC] is maintained by preserving a pedicle ofpyramid shaped tissue attached to the NAC." Defendant explained that, to avoid compromisingthe viability of NAC tissue during surgery, he periodically examined the NAC on both breasts toensure that their color was normal and that there was adequate "capillary refill." He stated that,while performing the surgery, he "removed tissue from the right breast while maintaining thevascular pedicle intact, sparing as much tissue as possible, slowly, meticulously, carefullyexcising the breast tissue around the pedicle to preserve a broad base and blood supply to theNAC." He averred that "[t]his technique met or even exceeded all standards of care for a plasticsurgeon performing this procedure" and that "even with this technique compromise of the NACis a well known complication of breast reduction surgery and can and does occur in the absenceof negligence." In addition, defendant stated that, prior to conducting the surgery, he consultedwith plaintiff's hematologist, who recommended that Heparin be given to plaintiff to prevent anyclotting that might occur as a result of the surgery. Moreover, defendant maintained thatplaintiff's post-surgery anemia and blood clotting disorder were not related to the loss of theNAC, and neither was the liposuction procedure that was performed on plaintiff at the same time.This affidavit was sufficient to shift the burden to plaintiff to demonstrate that triable questionsof fact exist as to whether defendant departed from accepted standards of medical practice in themanner in which the surgical procedure was performed—and in the post-surgical careprovided plaintiff—and, as a result, plaintiff was injured (see Derusha v Sellig, 92AD3d at 1193; Snyder v Simon, 49AD3d 954, 956 [2008]; Passero vPuleo, 17 AD3d 953, 954 [2005]; Toomey v Adirondack Surgical Assoc., 280AD2d at 755).
In that regard, plaintiff submitted the affirmation of Peter Neumann, a board-certified plasticsurgeon, which, in effect, restated many of the allegations set forth in plaintiff's bill ofparticulars. Notably, Neumann concluded that defendant was negligent because he departed fromaccepted standards of medical practice in the treatment rendered plaintiff, but failed to identifywhat those accepted practices are and how defendant's treatment of plaintiff deviated [*3]from them (see Passero v Puleo, 17 AD3d at 954; Tornsv Samaritan Hosp., 305 AD2d 965, 967 [2003]; Yamin v Baghel, 284 AD2d 778,779 [2001]). Neumann also contended that defendant committed malpractice by performing"blunt force liposuction to the lateral chest wall at the same time as breast reduction," but doesnot explain why performing such a procedure contemporaneously with the breast reductionsurgery constituted a departure from acceptable medical practice or how performing the twoprocedures during the same surgery caused plaintiff's injury (see Snyder v Simon, 49AD3d at 956; Passero v Puleo, 17 AD3d at 954-955).
We also note that Neumann's assertion that defendant failed to "timely diagnose and properlytreat wound abscess in [p]laintiff's right breast [NAC]" is belied by the record and ignores,without explanation, defendant's deposition testimony and medical records documenting thepostoperative examinations performed on plaintiff by defendant. In particular, this evidence,which is essentially uncontradicted, established that during plaintiff's first two postoperativeappointments with defendant, the NAC wound appeared "clean" and only upon the third visit was"some NAC superficial epidermis lysis" with diminished sensation noted. In addition theserecords document that during these examinations, defendant treated plaintiff's wound with topicalmedication and discussed with her possible approaches to be employed in remedying the tissuedamage to the NAC. Further, defendant recommended that plaintiff wear a looser fitting brassiereto enhance blood circulation to the affected area. Finally, while plaintiff argues that defendant'suse of an ACE bandage to dress her wound following the surgery constituted a departure fromaccepted medical standards, Neumann, in his affirmation, does not suggest any other method thatshould have been employed to dress plaintiff's wounds following the surgery (see Snyder vSimon, 49 AD3d at 956; Passero v Puleo, 17 AD3d at 954-955).[FN2]As such, the affirmation of plaintiff's expert failed to raise any triable issues of fact as to whetherdefendant deviated from accepted standards of medical practice in the care he provided plaintiffand, therefore, defendant's motion for summary judgment was properly granted. As a result, weneed not reach plaintiff's claims regarding her cross motion.
Mercure, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: This included anabdominoplasty surgery conducted in 2003 which resulted in plaintiff developing a pulmonaryembolism and she was placed on anticoagulation medication.
Footnote 2: Neumann also argued thatdefendant departed from accepted standards of care by failing to advise plaintiff of the increasedrisk of damage to the NAC as a result of her prior abdominoplasty and history of anemia, as wellas the use of anticoagulation medication prior to the surgery. However, plaintiff, in her bill ofparticulars, specifically states that she is "not asserting a claim for lack of informed consent at thepresent time," and no such claim has since been raised by plaintiff in the course of this action.