| Xiao Yan Chen v Maimonides Med. Ctr. |
| 2013 NY Slip Op 01401 [104 AD3d 680] |
| March 6, 2013 |
| Appellate Division, Second Department |
| Xiao Yan Chen et al., Appellants, v MaimonidesMedical Center et al., Respondents, et al., Defendant. |
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Vaslas, Lepowsky, Hauss & Danke, LLP, Staten Island, N.Y. (M. Maureen Klette ofcounsel), for respondents.
In an action to recover damages for medical malpractice, etc., the plaintiffs appealfrom an order and judgment (one paper) of the Supreme Court, Kings County (Knipel,J.), dated February 6, 2012, which granted the motion of the defendants MaimonidesMedical Center and Lim H. Tse for summary judgment dismissing the complaint insofaras asserted against those defendants, and is in favor of the defendants MaimonidesMedical Center and Lim H. Tse and against them dismissing the complaint insofar asasserted against those defendants.
Ordered that the order and judgment is reversed, on the law, with costs, thecomplaint is reinstated insofar as asserted against the defendants Maimonides MedicalCenter and Lim H. Tse, and the motion of the defendants Maimonides Medical Centerand Lim H. Tse for summary judgment dismissing the complaint insofar as assertedagainst them is denied.
In October 2009, the plaintiff Xiao Yan Chen (hereinafter the injured plaintiff) wentto the office of the defendant physician, Lim H. Tse, and reported that a home-pregnancytest indicated that she was pregnant. Tse performed a transvaginal ultrasound, but nofetus was observed. Tse explained to the injured plaintiff that it was possible that she hada potentially physically harmful condition known as ectopic pregnancy, and he referredher to the emergency room of the defendant Maimonides Medical Center (hereinafterMaimonides). After additional testing was performed at Maimonides, it wasrecommended that the injured plaintiff be injected with Methotrexate, a substance whichwould abort any pregnancy. This procedure was then carried out.
Subsequently, after the injured plaintiff consulted other physicians, she came tobelieve that her pregnancy had been a normal, intrauterine pregnancy. The injuredplaintiff, and her husband suing derivatively, then commenced this action against, amongothers, Tse and Maimonides (hereinafter together the moving defendants), alleging thatthey committed malpractice by misdiagnosing her pregnancy as ectopic, and byrecommending that she abort the pregnancy. The Supreme Court granted the movingdefendants' motion for summary judgment dismissing the complaint.
"In order to establish the liability of a physician for medical malpractice, a plaintiff[*2]must prove that the physician deviated or departedfrom accepted community standards of practice, and that such departure was a proximatecause of the plaintiff's injuries" (Stukas v Streiter, 83 AD3d 18, 23 [2011]; see Caggiano v Cooling, 92AD3d 634 [2012]). In moving for summary judgment dismissing a complaintalleging medical malpractice, the defendant must establish, prima facie, either that therewas no departure or that any departure was not a proximate cause of the plaintiff'sinjuries (see Faicco vGolub, 91 AD3d 817, 818 [2012]; Stukas v Streiter, 83 AD3d at 24).Once such a showing has made, the burden shifts to the plaintiff to demonstrate theexistence of a triable issue of fact (see Savage v Quinn, 91 AD3d 748, 750 [2012]), but onlyas to the elements on which the defendant met the prima facie burden (see Stukas vStreiter, 83 AD3d at 30).
Here, the moving defendants established their prima facie entitlement to judgment asa matter of law through, inter alia, Tse's deposition testimony and the affirmation of aphysician, specializing in obstetrics and gynecology, who opined that the care renderedto the injured plaintiff was "in accordance with accepted medical practice." However, inopposition thereto, the plaintiffs raised triable issues of fact. In particular, in the opinionof the plaintiffs' expert, the record did not reveal that the injured plaintiff was exhibitingsymptoms of an ectopic pregnancy when she presented at Maimonides and, thus, thedecision to abort at that time was a departure from accepted practice.
"Summary judgment is not appropriate in a medical malpractice action where theparties adduce conflicting medical expert opinions. Such credibility issues can only beresolved by a jury" (Feinberg vFeit, 23 AD3d 517, 519 [2005] [citations omitted]; see Deutsch v Chaglassian, 71AD3d 718, 719 [2010]; Colao v St. Vincent's Med. Ctr., 65 AD3d 660, 661[2009]).
Accordingly, the moving defendants' motion for summary judgment should havebeen denied (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In light of thisconclusion, it is unnecessary to reach the plaintiffs' remaining contentions. Eng, P.J.,Angiolillo, Sgroi and Hinds-Radix, JJ., concur.