| Iulo v Staten Is. Univ. Hosp. |
| 2013 NY Slip Op 03063 [106 AD3d 696] |
| May 1, 2013 |
| Appellate Division, Second Department |
| Anthony Joseph Iulo, Individually and as Administrator ofthe Estate of Joseph Iulo, Deceased, Appellant, v Staten Island UniversityHospital et al., Defendants, and Andrew Warchol, Sued Herein as Dr. Warchol, M.D.,Respondent. |
—[*1] Dopf, P.C., New York, N.Y. (Martin B. Adams and Michael Rosenblum of counsel),for respondent.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffappeals (1), as limited by his brief, from so much of an order of the Supreme Court,Richmond County (Maltese, J.), dated October 20, 2011, as granted that branch of themotion of the defendant Andrew Warchol, sued herein as "Dr. Warchol, M.D.," whichwas for summary judgment dismissing the complaint insofar as asserted against him, and(2) from a judgment of the same court entered December 16, 2011, which, upon theorder, in effect, severed the action against the defendant Andrew Warchol, sued herein as"Dr. Warchol, M.D.," and is in favor of that defendant and against the plaintiff,dismissing the complaint insofar as asserted against that defendant.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, that branch of the motion of thedefendant Andrew Warchol, sued herein as "Dr. Warchol, M.D.," which was forsummary judgment dismissing the complaint insofar as asserted against him is denied,the complaint insofar as asserted against that defendant is reinstated, and the order ismodified accordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from so much of the intermediate order as granted that branch of themotion of the defendant Andrew Warchol, sued herein as "Dr. Warchol, M.D.," whichwas for summary judgment dismissing the complaint insofar as asserted against him mustbe dismissed because the right of direct appeal therefrom terminated with the entry ofjudgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). Theissues raised on the appeal from that portion of the order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The plaintiff alleged, inter alia, that the defendant Andrew Warchol, sued herein as[*2]"Dr. Warchol, M.D." (hereinafter Warchol), departedfrom accepted practice by, among other things, failing to order a cardiac catheterizationupon receipt of the results of a medical test which indicated, inter alia, that the decedentwas suffering from certain cardiac conditions. The plaintiff also alleged that Warcholdeparted from accepted practice by transmitting two preoperative letters withcontradictory recommendations as to whether the decedent should have beenadministered aspirin preoperatively and perioperatively. The plaintiff further alleged thatWarchol's departures were the proximate cause of the decedent's death.
"[T]o establish the liability of a physician for medical malpractice, a plaintiff mustprove that the physician deviated or departed from accepted community standards ofpractice, and that such departure was a proximate cause of the plaintiff's injuries" (Stukas v Streiter, 83 AD3d18, 23 [2011]; see Gillespiev New York Hosp. Queens, 96 AD3d 901, 902 [2012]). "[I]n a medicalmalpractice action . . . a defendant physician seeking summary judgmentmust make a prima facie showing that there was no departure from good and acceptedmedical practice or that the plaintiff was not injured thereby" (Stukas v Streiter,83 AD3d at 24). " 'Failure to make such showing requires denial of the motion,regardless of the sufficiency of the opposing papers' " (Perre v Vassar Bros. Hosp., 52AD3d 670, 670 [2008], quoting Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]). Once a defendant has made such a showing, the burden shifts tothe plaintiff to demonstrate the existence of a triable issue of fact (see Gillespie vNew York Hosp. Queens, 96 AD3d at 902; Stukas v Streiter, 83 AD3d at24). To defeat a defendant's motion for summary judgment, a plaintiff must only rebutthe defendant's prima facie showing (see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]; Stukas v Streiter, 83 AD3d at 30). Summary judgment is notappropriate where the parties adduce conflicting medical expert opinions, as suchcredibility issues can only be resolved by a jury (see Hayden v Gordon, 91 AD3d 819, 821 [2012]; Bengston v Wang, 41 AD3d625, 626 [2007]).
Warchol failed to meet his prima facie burden of demonstrating that he did not departfrom accepted medical practice by transmitting letters with contradictoryrecommendations as to whether the decedent should have been administered aspirinpreoperatively and perioperatively. He also failed to demonstrate that the contradictoryletters did not cause confusion which resulted in injury to the decedent (see NassauIns. Co. v Murray, 46 NY2d 828, 829 [1978]; Gillespie v New York Hosp.Queens, 96 AD3d at 902; Stukas v Streiter, 83 AD3d at 24; ResidentialHolding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Smith vPalmieri, 103 AD2d 739, 740-741 [1984]). Furthermore, there are triable issues offact as to whether cardiac catheterization was warranted and would have revealed thepresence of an obstruction in the decedent's right coronary artery (see Hayden vGordon, 91 AD3d at 821; Stukas v Streiter, 83 AD3d at 30; Bengston vWang, 41 AD3d at 626). Thus, the Supreme Court should have denied that branch ofWarchol's motion which was for summary judgment dismissing the complaint insofar asasserted against him (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at853; Perre v Vassar Bros. Hosp., 52 AD3d at 670).
In light of our determination, we need not consider the parties' remainingcontentions. Mastro, J.P., Rivera, Hall and Miller, JJ., concur. [Prior Case History:2011 NY Slip Op 33323(U).]