| Kelley v Kingsbrook Jewish Med. Ctr. |
| 2012 NY Slip Op 07275 [100 AD3d 600] |
| November 7, 2012 |
| Appellate Division, Second Department |
| Lois Kelley, Respondent, v Kingsbrook Jewish MedicalCenter et al., Defendants, and Susan Schneidermesser et al.,Appellants. |
—[*1] Burns & Harris, New York, N.Y. (Christopher J. Donadio, Jean M. Prabhu, and Judith F.Stempler of counsel), for respondent.
In an action to recover damages for podiatric malpractice and lack of informed consent, thedefendants Susan Schneidermesser and Susan G. Schneidermesser, DPM, P.C., appeal, as limitedby their brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.),dated July 26, 2011, as denied their motion for summary judgment dismissing the complaint andall cross claims insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
"A defendant physician moving for summary judgment in a medical malpractice action hasthe initial burden of establishing, prima facie, either the absence of any departure from good andaccepted medical practice or that any departure was not the proximate cause of the allegedinjuries" (Shichman v Yasmer, 74AD3d 1316, 1318 [2010]). If the defendant physician meets his or her burden, the plaintiff,in opposition, "must submit evidentiary facts or materials to rebut the defendant physician'sprima facie showing, so as to demonstrate the existence of a triable issue of fact" (Shichmanv Yasmer, 74 AD3d at 1318).
Here, the defendant Susan Schneidermesser (hereinafter Schneidermesser), a podiatrist whoperformed a bilateral bunionectomy upon the plaintiff, and the defendant Susan G.Schneidermesser, DPM, P.C. (hereinafter together the appellants), made a prima facie showing oftheir entitlement to judgment as a matter of law dismissing the podiatric malpractice cause ofaction insofar as asserted against them. The appellants' submissions, which included a podiatricexpert's affidavit, established that Schneidermesser did not deviate or depart from acceptedpodiatric practice in her care and treatment of the plaintiff, and that Schneidermesser's care andtreatment of the plaintiff were not proximate causes of the plaintiff's injuries (see id. at1318-1319). In opposition, although the plaintiff's contentions regarding Schneidermesser'salleged failure to perform pre-operative vascular tests should not have been considered (see Dolan v Halpern, 73 AD3d1117 [2010]; [*2]Langan v St. Vincent's Hosp. of N.Y., 64 AD3d 632, 633[2009]; Golubov v Wolfson, 22AD3d 635, 636 [2005]), the plaintiff nonetheless raised triable issues of fact through herpodiatric expert's affidavit, including as to whether it was inappropriate to perform a bilateralprocedure and whether that alleged departure was a proximate cause of the plaintiff's injuries(see Shichman v Yasmer, 74 AD3d at 1318-1319). Accordingly, the Supreme Courtproperly denied that branch of the appellants' motion which was for summary judgmentdismissing the podiatric malpractice cause of action insofar as asserted against them.
The appellants failed to demonstrate their prima facie entitlement to judgment as a matter oflaw dismissing the cause of action to recover damages for lack of informed consent insofar asasserted against them. The appellants' expert opined that there was increased risk associated withperforming the bunionectomy bilaterally, and the deposition testimony of Schneidermesser andthe plaintiff, which was submitted by the appellants in support of their motion, revealed a factualdispute as to whether the plaintiff was properly advised of that increased risk. Accordingly, theappellants failed to eliminate all triable issues of fact as to the lack of informed consent cause ofaction (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; seegenerally Public Health Law § 2805-d). The Supreme Court, therefore, properlydenied that branch of the appellants' motion which was for summary judgment dismissing thatcause of action insofar as asserted against them. Skelos, J.P., Florio, Roman and Miller, JJ.,concur.