| Contreras v Adeyemi |
| 2013 NY Slip Op 00169 [102 AD3d 720] |
| January 16, 2013 |
| Appellate Division, Second Department |
| Francisco Contreras, Respondent, v BabatundeAdeyemi et al., Appellants, et al., Defendant. |
—[*1] Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael P. Kandler andSteven M. Kaye, Jr., of counsel), for appellant Arvind Hazari. Arshack, Hajek & Lehrman, PLLC, New York, N.Y. (Lisa A. Kechijian and LynnHajek of counsel), for appellant Wyckoff Heights Medical Center. Sanocki, Newman & Turret, LLP, New York, N.Y. (David B. Turret of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice, the defendantsBabatunde Adeyemi, Arvind Hazari, and Wyckoff Heights Medical Center eachseparately appeal, as limited by their respective briefs, from so much of an order of theSupreme Court, Kings County (Bunyan, J.), dated September 22, 2011, as denied theirseparate motions for summary judgment dismissing the complaint and any cross claimsinsofar as asserted against each of them.
Ordered that the order is affirmed, with one bill of costs.
The plaintiff commenced this medical malpractice action alleging, inter alia, that thedefendant Wyckoff Heights Medical Center (hereinafter the hospital), and the defendantphysicians Babatunde Adeyemi and Arvind Hazari (hereinafter collectively theappellants), were negligent in failing to timely diagnose and treat his appendicitis. TheSupreme Court denied the appellants' separate motions for summary judgment dismissingthe complaint and any cross claims insofar as asserted against each of them.
To establish the liability of a physician for medical malpractice, a plaintiff mustprove that the physician deviated or departed from accepted standards of practice, andthat such departure was a proximate cause of the plaintiff's injuries (see Stukas v Streiter, 83 AD3d18, 23 [2011]; see alsoGillespie v New York Hosp. Queens, 96 AD3d 901 [2012]; Swanson v Raju, 95 AD3d1105, 1106 [2012]; Hellerv Weinberg, 77 AD3d 622 [2010]). A defendant physician moving for summaryjudgment dismissing a complaint alleging medical malpractice must establish, primafacie, either that there was no departure from good and accepted medical practice or thatthe plaintiff was not injured thereby (see Stukas v Streiter, 83 AD3d at 24;see also Gillespie v New York Hosp. Queens, 96 AD3d at 902; [*2]Swanson v Raju, 95 AD3d at 1106; Heller vWeinberg, 77 AD3d at 622-623). Once a defendant has made such a showing, theburden shifts to the plaintiff to demonstrate the existence of a triable issue of fact (seeStukas v Streiter, 83 AD3d at 24; see also Gillespie v New York Hosp.Queens, 96 AD3d at 902; Heller v Weinberg, 77 AD3d at 623). In order todefeat a defendant's motion for summary judgment, a plaintiff must only rebut thedefendant's prima facie showing (see Stukas v Streiter, 83 AD3d at 30; seealso Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Summary judgment isnot appropriate where the parties adduce conflicting medical expert opinions, as suchissues of credibility can only be resolved by a jury (see Hayden v Gordon, 91 AD3d 819, 821 [2012]; Bengston v Wang, 41 AD3d625, 626 [2007]; Feinbergv Feit, 23 AD3d 517, 519 [2005]).
Here, the appellants established their prima facie entitlement to judgment as a matterof law through expert evidence that they did not depart from good and accepted medicalpractice and that, in any event, the plaintiff was not injured by any such departure. Inopposition, the plaintiff raised triable issues of fact by submitting the affidavit of amedical expert who opined, inter alia, that surgical intervention, which should have beenprovided on an emergent basis, was delayed as a result of the appellants' departures fromgood and accepted medical practice, and that the delay was a proximate cause of, and/orsubstantial contributing factor to, the plaintiff's claimed injuries.
The plaintiff's expert opined, inter alia, that Adeyemi departed from good andaccepted medical practice in failing to complete a thorough clinical examination of theplaintiff, in ignoring several signs and/or symptoms of an acute or perforated appendix,and in failing to conduct additional and/or different tests. The plaintiff's expert alsoopined that Hazari departed from good and accepted medical practice in delayingtreatment despite the fact that the plaintiff had an acute abdomen and was suffering froma ruptured appendix and chemical peritonitis. Additionally, the plaintiff's expert opinedthat the off-site radiologist who originally interpreted the plaintiff's CT scan, which wastaken at the hospital, departed from good and accepted medical practice in failing todiagnose the true nature of the plaintiff's condition. According to the plaintiff's expert,the departures of the appellants individually and together in the treatment and diagnosisof the plaintiff led to a delay in the plaintiff's surgery, and were a proximate cause orsubstantial contributing factor to the plaintiff's injuries.
Contrary to the hospital's contention, the plaintiff did not improperly, for the firsttime in opposition to the hospital's motion, assert a new theory that the hospital should beheld liable for the actions of the nonparty, offsite radiologist. The Supreme Courtproperly determined that this theory was included in the plaintiff's bill of particulars, thepurpose of which is "to amplify the pleadings, limit the proof, and prevent surprise attrial" (Jurado v Kalache, 93AD3d 759, 760 [2012] [internal quotation marks omitted]). A bill of particulars in amedical malpractice action "must provide a general statement of the acts or omissionsconstituting the alleged negligence" (Toth v Bloshinsky, 39 AD3d 848, 849 [2007]; seeCPLR 3043 [a] [3]; Kaplan vRosiello, 16 AD3d 626 [2005]). The plaintiff's bill of particulars satisfied thisstandard and sufficiently apprised the hospital of the plaintiff's claim that the hospitalwas liable for the radiologist's failure to timely and/or properly interpret the CT scan.
Further, the hospital failed to establish, prima facie, that it was not vicariously liablefor the acts of the radiologist. The hospital failed to submit evidence establishing, as amatter of law, that the radiologist was not under its control and not its agent or ostensiblyacting as its agent in providing care to the plaintiff and, thus, failed to demonstrate itsprima facie entitlement to judgment as a matter of law dismissing the complaint insofaras asserted against it premised upon the alleged malpractice of the radiologist (see Schacherbauer v UniversityAssoc. in Obstetrics & Gynecology, P.C., 56 AD3d 751 [2008]; Mendez v White, 40 AD3d1057 [2007]; see generally Hill v St. Clare's Hosp., 67 NY2d 72, 79-81[1986]).
The appellants' remaining contentions are without merit. Eng, P.J., Angiolillo, Sgroiand Hinds-Radix, JJ., concur.