| Zeldin v Michaelis |
| 2013 NY Slip Op 02827 [105 AD3d 641] |
| April 25, 2013 |
| Appellate Division, First Department |
| Vera Zeldin, Appellant, v W. Roy Michaelis, M.D.,et al., Respondents. |
—[*1] Turken & Heath, LLP, Armonk (Jason D. Turken of counsel), for W. Roy Michaelis,M.D. and Montefiore Medical Group Co-Op City, respondents. Kaufman Borgeest & Ryan, LLP, Valhalla (Adonaid C. Medina of counsel), for JohnJ. Gelfand, D.O. and Bogart Avenue Medical, P.C., respondents. Marulli, Lindenbaum, Edelman & Tomaszewski, LLP, New York (Claudia E. Solisof counsel), for Luba Karlin, M.D. and Mohammed K. Nour, M.D.,respondents.
Judgment, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered June 1,2011, dismissing the complaint, unanimously affirmed, without costs. Appeal from order,same court and Justice, entered April 27, 2011, which granted defendants' motions andcross motion for summary judgment dismissing the complaint, unanimously dismissed,without costs, as subsumed in the appeal from the judgment.
Plaintiff alleges that the four defendant physicians failed to refer plaintiff's decedentto a cardiologist or for testing and/or to recognize that decedent had a tear in his aortaafter a motor vehicle accident on June 20, 2004, which failures eventually led to an aorticdissection, causing his death on September 29, 2004.
Supreme Court properly found that all defendants met their burden on summaryjudgment. W. Roy Michaelis, Jr., M.D., the internist who treated decedent's hypertensionuntil April 2004, established that he did not depart from accepted medical practice incontinuing to prescribe antihypertensive medications for decedent, whose high bloodpressure was resistant to treatment. Moreover, the alleged aortic tear, for which there wasno record evidence, could only have existed after the motor vehicle accident, afterdecedent had ended his treatment with Dr. Michaelis (see Burtman v Brown, 97 AD3d 156 [1st Dept 2012]). Asto Montefiore Medical Center, no evidence of malpractice has been submitted.
After his motor vehicle accident, when decedent presented to John Gelfand, D.O.,decedent presented no signs or symptoms which would have led Dr. Gelfand to concludethat an aortic tear was present. The symptom of severe chest wall pain was absent. Thetemporary chest wall pain which decedent did report was easily attributable to anothercause, namely, the motor [*2]vehicle accident (see Rivera v Greenstein, 79AD3d 564, 568-569 [1st Dept 2010]; Shields v Kleiner, 93 AD3d 710 [2d Dept 2012]).
Dr. Gelfand referred decedent to Luba Karlin, M.D., for a neurological examination,and to Mohammed K. Nour, M.D., for an orthopedic examination. The orthopedicexamination was conducted by Dr. Nour's physician's assistant, Ahmed Jawad. NeitherDr. Karlin nor Dr. Nour had a duty to decedent to refer him to a cardiologist, since theirduty was " 'limited to those medical functions undertaken by the physician and reliedupon by the patient' " (Burtman, 97 AD3d at 161-162; Chulla vDiStefano, 242 AD2d 657, 658 [2d Dept 1997], lv dismissed 91 NY2d 921[1998]). Concur—Tom, J.P., Acosta, Román, Feinman and Clark, JJ.