| Rivera v Jothianandan |
| 2012 NY Slip Op 07893 [100 AD3d 542] |
| November 20, 2012 |
| Appellate Division, First Department |
| Yanina Rivera, an Infant, by Her Mother and Natural Guardian,Carmen Hernandez, Appellant, v K. Jothianandan M.D.,Respondent. |
—[*1] Mauro Lilling Naparty LLP, Woodbury (Katherine Herr Soloman of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Mark Friedlander, J.), entered February 24, 2012,dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same courtand Justice, entered December 16, 2011, which granted defendant's posttrial motion to set asideor, in the alternative, reduce the verdict, as legally insufficient and/or against the weight of theevidence, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiffs claim that defendant's alleged failure to diagnose and treat the infant plaintiff'sappendicitis resulted in an unnecessary open appendectomy, with its resultant scar and otherdamages, as opposed to the less invasive laparoscopic procedure.
On March 21, 2005, the infant plaintiff, a 10-year-old girl who had complained of a stomachache and diarrhea, was taken to see defendant. Defendant examined plaintiff, and her findingsshowed no symptoms of appendicitis, including any fever, vomiting, or severe stomach pain,when she examined plaintiff's abdominal area. Defendant diagnosed gastroenteritis, andprescribed bed rest, Tylenol and Pedialyte. Plaintiff complained of stomach pain over the nextfew days, and, on Wednesday evening, March 23, 2005, over two days since she had seendefendant, her mother took her to the emergency room of Bronx Lebanon Hospital, where sheunderwent an emergency open appendectomy.
Because there was insufficient proof that plaintiff presented to defendant with the symptomsof appendicitis, the evidence was legally insufficient to support the verdict (see Rodriguez v Montefiore Med. Ctr.,28 AD3d 357 [1st Dept 2006]).
Plaintiffs must show that defendant departed from the accepted standard of medical practice,and that this departure was a proximate cause of the patient's injuries, via the presentation ofexpert testimony, in order to prevail in a medical malpractice action (see Frye v Montefiore Med. Ctr., 70AD3d 15, 24 [1st Dept 2009]; Pauling v Orentreich Med. Group, 14 AD3d 357 [1st Dept 2005],lv denied 4 NY3d 710 [2005]).
The only departure from good and accepted medical practices attributed to defendant was[*2]plaintiff's expert's opinion that, had defendant written downthe results of her findings, she might have noted "some issues," but he did not purport to explainwhat these issues were. Further, plaintiff's expert relied on assumptions that were not supportedby evidence in the record, such as an assumption that plaintiff presented with fever. Thus, hisopinion was conclusory and speculative, and failed to make out a prima facie case, since hestated defendant's departures consisted of failing to "document" a good physical exam ofplaintiff, not her failure to "perform" a good one (see Rodriguez, 28 AD3d 357).Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Renwick and Freedman, JJ.