| Bey v Neuman |
| 2012 NY Slip Op 07262 [100 AD3d 581] |
| November 7, 2012 |
| Appellate Division, Second Department |
| Dorlisa Bey, Respondent, v David Neuman et al.,Defendants, and Lenox Hill Radiology and Medical Imaging Associates, P.C., et al.,Appellants. |
—[*1] Burns & Harris, New York, N.Y. (Jean M. Prabhu, Judith F. Stempler, and Blake G.Goldfarb of counsel), for respondent.
In an action to recover damages for medical malpractice and lack of informed consent, thedefendants Lenox Hill Radiology and Medical Imaging Associates, P.C., and Thomas M. Kolbappeal from an order of the Supreme Court, Kings County (Bunyan, J.), dated November 17,2011, which denied their motion for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsLenox Hill Radiology and Medical Imaging Associates, P.C., and Thomas M. Kolb for summaryjudgment dismissing the complaint insofar as asserted against them is granted.
On September 11, 2006, the plaintiff was involved in a car accident that resulted in pain inher left shoulder. In November 2006 she underwent an MRI on her shoulder at the defendantLenox Hill Radiology and Medical Imaging Associates, P.C. (hereinafter Lenox Hill). Her MRIfilms were reviewed by the defendant Thomas M. Kolb, a radiologist employed by Lenox Hill(hereinafter together the Lenox Hill defendants). Kolb's MRI report stated that the plaintiff had,inter alia, a partial rotator cuff tear. The report did not state that the MRI showed any irregularityin the plaintiff's acromion. In December 2007, the plaintiff underwent a surgical procedure toaddress her shoulder problems, but the surgery proved unsuccessful. After the surgery, thesurgeon told the plaintiff that during the operation he had discovered and repaired a fracture inher acromion. In 2009, the plaintiff commenced this action against, among others, the Lenox Hilldefendants, alleging medical malpractice and lack of informed consent.
The plaintiff's original bill of particulars alleged that Kolb missed an acromion fracture whenhe interpreted her MRI films. Kolb later testified during his deposition that the plaintiff's MRIfilms did not show that she had an acromion fracture, but rather that she had an "os acromiale,"which he stated was a normal anatomic variant. The plaintiff then amended her bill of particularsto include an allegation that the Lenox Hill defendants engaged in medical malpractice [*2]when Kolb failed to document her os acromiale in his MRI report.
The Lenox Hill defendants moved for summary judgment dismissing the complaint insofaras asserted against them. Their experts, a radiologist and an orthopedist, opined that the plaintiffhad an os acromiale, not an acromion fracture, that Kolb did not deviate from the applicablestandard of care by not noting the os acromiale in his MRI report, and that, in any event, theLenox Hill defendants did not proximately cause the plaintiff's injuries. In opposition, theplaintiff submitted the redacted affirmation of an out-of-state orthopedic surgeon who opined thatKolb departed from good and accepted medical practice when he failed to note in his MRI reportthat the plaintiff had an os acromiale. The Supreme Court denied the motion in its entirety.
Initially, contrary to the Lenox Hill defendants' contention, under the circumstances of thiscase, we may consider the affirmation of the plaintiff's expert, which was notarized inPennsylvania, even though it lacked a certificate of conformity (see CPLR 2309 [c]; Matter of Recovery of Judgment, LLC vWarren, 91 AD3d 656, 657 [2012]; Betz v Daniel Conti, Inc., 69 AD3d 545 [2010]; Smith v Allstate Ins. Co., 38 AD3d522, 523 [2007]; see also CPLR 2001).
"The requisite elements of proof in a medical malpractice action are a deviation or departurefrom accepted practice and evidence that such departure was a proximate cause of injury ordamage" (Ramsay v Good SamaritanHosp., 24 AD3d 645, 646 [2005]). Here, the Lenox Hill defendants made a prima facieshowing that there was no departure from accepted practice, and that in any event, their actionsor inactions did not proximately cause the plaintiff's injuries (see Shectman v Wilson, 68 AD3d 848, 849-850 [2009]). Theplaintiff failed to raise a triable issue of fact in opposition. Where, as here, "a physician opinesoutside his or her area of specialization, a foundation must be laid tending to support thereliability of the opinion rendered," and the plaintiff's expert failed to lay the requisite foundation(id. at 850; see Bjorke vRubenstein, 53 AD3d 519, 520 [2008]; Glazer v Choong-Hee Lee, 51 AD3d 970, 971 [2008]; Mustello v Berg, 44 AD3d 1018,1018-1019 [2007]; cf. Texter vMiddletown Dialysis Ctr., Inc., 22 AD3d 831 [2005]). Moreover, even assuming that theLenox Hill defendants did depart from accepted practice, the plaintiff's expert's assertion that thisdeparture proximately caused the plaintiff's injuries is purely speculative, and thus insufficient todefeat summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Forrest v Tierney, 91 AD3d 707,709 [2012]; Ramsay v Good Samaritan Hosp., 24 AD3d at 647). Accordingly, the LenoxHill defendants were entitled to summary judgment dismissing the medical malpractice cause ofaction insofar as asserted against them.
Finally, the Lenox Hill defendants were entitled to summary judgment dismissing the causeof action alleging lack of informed consent insofar as asserted against them (see PublicHealth Law § 2805-d [2]; Deutschv Chaglassian, 71 AD3d 718, 719-720 [2010]; Sample v Levada, 8 AD3d 465, 467 [2004]). Dillon, J.P., Balkin,Austin and Cohen, JJ., concur.