| LaFountain v Champlain Val. Physicians Hosp. Med. Ctr. |
| 2012 NY Slip Op 05772 [97 AD3d 1060] |
| July 26, 2012 |
| Appellate Division, Third Department |
| Cindi L. LaFountain et al., Respondents, v Champlain ValleyPhysicians Hospital Medical Center et al., Appellants, and Olof Franzon et al.,Respondents. |
—[*1] E. Stewart Jones, PLLC, Troy (James C. Knox of counsel), for Cindi L. Lafountain andanother, respondents. Maguire & Cardona, PC, Menands (Randall J. Ezick of counsel), for Olof Franzon andanother, respondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Muller, J.), entered September 15,2011 in Clinton County, which denied a motion by defendants Champlain Valley PhysiciansHospital Medical Center and Craig Hofsess for summary judgment dismissing the complaintagainst them.
In 2007, plaintiff Cindi L. LaFountain (hereinafter plaintiff) underwent a hysterectomy andbilateral salpingo-oophroectomy at defendant Champlain Valley Physicians Hospital MedicalCenter (hereinafter CVPH).[FN*]The surgery was performed by defendant Olof Franzon and [*2]anesthesia was administered by defendant Craig Hofsess. Followingthe surgery, plaintiff complained of numbness in her right hand and pain in her right shoulder.Thereafter, plaintiff and her husband, derivatively, commenced this personal injury actionasserting that plaintiff sustained nerve injuries to her right upper extremity during surgery thatwas caused by defendants' negligence. Supreme Court subsequently denied a motion by Hofsessand CVPH (hereinafter collectively referred to as defendants) for summary judgment, concludingthat plaintiffs had raised a triable issue of fact in opposition to the motion. Defendants nowappeal.
We affirm, albeit on a different ground than relied upon by Supreme Court. As the proponentof a motion for summary judgment in a medical malpractice action, defendants were required toestablish as a matter of law that they did not depart from accepted standards of medical practicein their treatment of plaintiff or that such a departure, if it did exist, did not cause her injury (see Menard v Feinberg, 60 AD3d1135, 1136 [2009]; accord Derushav Sellig, 92 AD3d 1193, 1193 [2012]). While the affidavit of a defendant physicianmay, in a given circumstance, suffice to establish entitlement to summary judgment, such anaffidavit must be "detailed, specific and factual in nature" (Toomey v Adirondack SurgicalAssoc., 280 AD2d 754, 755 [2001]; accord Amodio v Wolpert, 52 AD3d 1078, 1079 [2008]; Suib v Keller, 6 AD3d 805, 806[2004]). Further, "affidavits which [do] no more than simply state, in conclusory fashion, that[the physician has] acted in conformity with the appropriate standard of care . . .[or] bare conclusory assertions . . . that [the physician] did not deviate from goodand accepted medical practices, with no factual relationship to the alleged injury, do not establishthat the cause of action has no merit so as to entitle [the movant] to summary judgment"(Machac v Anderson, 261 AD2d 811, 812-813 [1999] [internal quotation marks andcitations omitted]; see Alvarez v Prospect Hosp., 68 NY2d 320, 325-326 [1986];Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Here, the record reflects that plaintiff was positioned for surgery so that her head was lowerthan her abdomen. In order to administer anesthesia, plaintiff's right arm was secured to a paddedarm board attached to the operating table and wrapped with a gel pad to protect the ulnar nervearea. Although the surgery was expected to last approximately two hours, complications aroseand it took five hours to complete. As relevant here, plaintiffs allege that plaintiff suffered nervedamage to her right arm and shoulder because Hofsess failed to properly restrain her arm andcorrectly apply protective padding on known pressure points during the surgical procedure anddid not review or inspect the positioning or padding during the operation, even though it lastedsignificantly longer than expected.
In support of their motion, defendants rely on the affidavit of Hofsess, who simply states,based on his review of plaintiff's chart, that there was "no deviation from the norm" in themanner in which he positioned and secured plaintiff's right arm on the arm board. He furthermaintained that he found "no deviation of any kind from the appropriate standard of care by[CVPH] or its employees, including myself." Notably, Hofsess does not rebut plaintiffs' claimswith any factual proof that is in any way related to plaintiff's alleged injury. Further, at hisdeposition, Hofsess testified that he had no independent recollection of plaintiff's surgery andcould only describe in general terms how a patient is positioned during such a surgical procedure,the manner in which the arm is padded and how anesthesia is administered. More importantly,nowhere in his affidavit does he make any reference to the relationship between the proceduresroutinely employed during such a surgical procedure and plaintiff's claim of injury. Inasmuch asHofsess's affidavit in sum and substance is simply a recitation of his opinion that there was nodeviation from accepted medical practice without any factual proof related to plaintiff's specificinjury, defendants' motion for summary judgment had to be denied (see Winegrad v NewYork [*3]Univ. Med. Ctr., 64 NY2d at 853; Machac vAnderson, 261 AD2d at 813). In light of this conclusion, we need not address the sufficiencyof plaintiffs' papers in opposition (see Alvarez v Prospect Hosp., 68 NY2d at 325-326;Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
Peters, P.J., Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed, with onebill of costs. [Prior Case History: 32 Misc 3d 1240(A), 2011 NY Slip Op 51648(U).]
Footnote *: These procedures involved theremoval of plaintiff's uterus and both ovaries.