| DiGeronimo v Fuchs |
| 2012 NY Slip Op 08685 [101 AD3d 933] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Nancy DiGeronimo, Appellant, v Allen Fuchs et al.,Respondents. |
—[*1] Amabile & Erman, P.C., Staten Island, N.Y. (Irene P. Ziegler of counsel), for respondentAllen Fuchs. Shaub Ahmuty Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and Scott M.Fusaro of counsel), for respondent Staten Island University Hospital.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, aslimited by her notice of appeal and brief, from so much of an order of the Supreme Court,Richmond County (Maltese, J.), dated August 4, 2011, as granted those branches of the separatemotions of the defendants Allen Fuchs and Staten Island University Hospital which were forsummary judgment dismissing the cause of action to recover damages for medical malpracticeinsofar as asserted against each of those defendants.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
When the plaintiff became pregnant with her second child, she sought medical treatmentfrom the defendants Allen Fuchs, an obstetrician and gynecologist, and Staten Island UniversityHospital (hereinafter SIUH). In accordance with her religious beliefs as a Jehovah's Witness, theplaintiff had previously signed a health care proxy indicating that she "absolutely, unequivocallyand resolutely refused" various forms of blood transfusions, including homologous bloodtransfusions, i.e., the transfer of another person's blood into her body, stored autologous bloodtransfusions, i.e., the transfer of her own stored blood back into her body, and nonstoredautologous blood transfusions, i.e., transfusions made possible through the use of intraoperativeor postoperative blood salvage techniques which involve the contemporaneous recovery andreinfusion of blood lost during or after surgery which has not been stored.
Immediately following the delivery of her baby at SIUH by Fuchs, the plaintiff beganexperiencing substantial blood loss. When the hemorrhaging could not be stopped by lessdefinitive measures, the plaintiff underwent a hysterectomy in order to remove her uterus, whichwas the source of the bleeding. After being advised by Fuchs that she would need to accept ablood transfusion in order to survive due to the amount of blood which had been lost followingthe delivery, the plaintiff allegedly nodded in agreement. The plaintiff's husband, acting as herhealthcare proxy, also signed a consent to the blood transfusion. A homologous blood transfusion[*2]was administered and the plaintiff recovered without furtherincident.
The plaintiff commenced the instant action, inter alia, to recover damages for medicalmalpractice, alleging, among other things, that the defendants deviated from accepted standardsof medical care in proceeding with a vaginal delivery, rather than a cesarean section, and thatsuch deviation was the proximate cause of her hemorrhaging, and her need for a hysterectomyand blood transfusion.
The defendants SIUH and Fuchs separately moved for summary judgment dismissing thecomplaint insofar as asserted against each of them, submitting, among other things, expertaffidavits which opined that it was not a departure from accepted standards of care to proceedwith a vaginal delivery, since the plaintiff's sonogram results indicated that the placenta hadmigrated during the course of the pregnancy to a position where a cesarean section was no longermedically indicated. The experts further opined that the postpartum hemorrhaging experiencedby the plaintiff was caused by a condition known as placenta increta, where the placenta attachesdeeper than normal into the uterine wall and causes bleeding after detachment from the uterus.The defendants also submitted a copy of the consent form, signed by the plaintiff's husband asher healthcare proxy, agreeing to the blood transfusion.
The plaintiff opposed the defendants' respective motions for summary judgment, submitting,among other things, her own expert affidavits which opined that it was a departure from acceptedstandards of medical care not to proceed with a cesarean section because the plaintiff's sonogramresults showed that the placenta had not migrated to a position where a vaginal delivery wasindicated, and because the medical records showed that dilation had arrested during the course ofthe attempted vaginal delivery, requiring an immediate cesarean section. The plaintiff's expertopined that the failure to proceed with a cesarean section was the proximate cause of thehemorrhaging, and the need for a hysterectomy and blood transfusion.
The Supreme Court granted the separate motions of SIUH and Fuchs for summary judgmentdismissing the complaint insofar as asserted against each of them. The Supreme Courtconcluded, among other things, that although the plaintiff may have suffered emotional distressas a result of the blood transfusion, which was received in contravention to her religious beliefs,she failed to plead a legally recognized injury in the context of a medical malpractice action,since the transfusion was beneficial in nature and saved her life. The plaintiff appeals from somuch of the order as granted those branches of the defendants' separate motions which were forsummary judgment dismissing the cause of action to recover damages for medical malpracticeinsofar as asserted against each of them.
Contrary to the determination of the Supreme Court, the emotional distress damagespurportedly suffered by the plaintiff as a result of the blood transfusion, which allegedly becamenecessary because of the defendants' malpractice, are compensable in an action to recoverdamages for medical malpractice. "All there need be to recover for emotional injury here isbreach of a duty owing from [the defendants] to [the] plaintiff that results directly in emotionalharm, and evidence sufficient to guarantee the genuineness of the claim" (Salandy v Bryk, 55 AD3d 147,154-155 [2008]; see Ornstein v NewYork City Health & Hosps. Corp., 10 NY3d 1, 6 [2008]; Garcia v Lawrence Hosp., 5 AD3d227, 228 [2004]). "[I]nasmuch as the plaintiff has alleged from the outset that receiving atransfusion would violate her religious beliefs as a Jehovah's Witness, the record contains asufficient guarantee that her claim of having suffered emotional distress as a result of thetransfusion is genuine" (Salandy v Bryk, 55 AD3d at 155).
Notwithstanding this error, the Supreme Court properly granted, albeit on different grounds,those branches of the separate motions of the defendants which were for summary judgmentdismissing the plaintiff's cause of action to recover damages for medical malpractice insofar asasserted against each of them. "In order to establish the liability of a physician for medicalmalpractice, a plaintiff must prove that the physician deviated or departed from acceptedcommunity standards of practice, and that such departure was a proximate cause of the plaintiff'sinjuries" (Stukas v Streiter, 83AD3d 18, 23 [2011]). Accordingly, "[a] physician moving for summary judgment [*3]dismissing a complaint alleging medical malpractice must establish,prima facie, either that there was no departure or that any departure was not a proximate cause ofthe plaintiff's injuries" (Gillespie v NewYork Hosp. Queens, 96 AD3d 901, 902 [2012]; Faicco v Golub, 91 AD3d 817, 818 [2012]; Roca v Perel, 51 AD3d 757,758-759 [2008]). "Once a defendant physician has made such a showing, the burden shifts to theplaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements onwhich the defendant met the prima facie burden" (Gillespie v New York Hosp. Queens,96 AD3d at 902 [citations omitted]; see Stukas v Streiter, 83 AD3d at 30). "Summaryjudgment is not appropriate in a medical malpractice action where the parties adduce conflictingmedical expert opinions" (Feinberg vFeit, 23 AD3d 517, 519 [2005]; see Shields v Baktidy, 11 AD3d 671, 672 [2004]). Such conflictingexpert opinions will raise credibility issues which can only be resolved by a jury (see Roca vPerel, 51 AD3d at 759; see Feinberg v Feit, 23 AD3d at 519).
Here, the defendants demonstrated their prima facie entitlement to judgment as a matter oflaw by submitting evidence establishing that they did not depart from good and accepted practice,and that, in any event, any departure was not a proximate cause of the alleged injuries (see Lau v Wan, 93 AD3d 763, 765[2012]; Rodriguez v New York City Health & Hosps. Corp., 245 AD2d 174 [1997]). Inopposition to the defendants' prima facie showing, the plaintiff failed to raise a triable issue offact. Although the plaintiff's expert opined that the defendants departed from accepted standardsof medical care in failing to perform a cesarean section based on the location of the placenta atthe time of delivery, he acknowledged that he never reviewed the sonogram films upon which hisopinion was based. Furthermore, although he opined that the results of the pathological testsshowing placenta increta were incorrect, he acknowledged that he never examined thepathological specimens. In this regard, and in others, the expert affidavits submitted by theplaintiff were conclusory, speculative, and without basis in the record (see Lahara v Auteri, 97 AD3d 799[2012]; Lau v Wan, 93 AD3d at 765; Ellis v Eng, 70 AD3d 887 [2010]). Accordingly, the plaintiff failedto raise a triable issue of fact, and the Supreme Court properly granted those branches of thedefendants' separate motions which were for summary judgment dismissing the cause of action torecover damages for medical malpractice insofar as asserted against each of them. Skelos, J.P.,Angiolillo, Dickerson and Hall, JJ., concur. [Prior Case History: 33 Misc 3d 206.]