| Makinen v Torelli |
| 2013 NY Slip Op 03303 [106 AD3d 782] |
| May 8, 2013 |
| Appellate Division, Second Department |
| Ceanna Makinen, Individually and as Administratrix of theEstate of Michael Makinen, Deceased, Respondent, v Michael William Torelli,M.D., et al., Appellants, et al., Defendants. |
—[*1] Catalano, Gallardo & Petropoulos, LLP, Jericho, N.Y. (Jennifer B. Ettenger ofcounsel), for appellant Kerri Ann Petitpain. Duffy & Duffy, Uniondale, N.Y. (Mary Ellen Duffy of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice and wrongfuldeath, etc., the defendants Michael William Torelli and South Shore Family PracticeAssociates, P.C., appeal, and the defendant Kerri Ann Petitpain separately appeals, aslimited by their respective briefs, from so much of an order of the Supreme Court,Suffolk County (Jones, Jr., J.), dated May 8, 2012, as granted that branch of the plaintiff'smotion which was for leave to reargue her opposition to those branches of their separatemotions which were for summary judgment dismissing the cause of action allegingmedical malpractice insofar as asserted against each of them, which had been granted in aprior order dated July 7, 2011, and, upon reargument, vacated that portion of the orderdated July 7, 2011, and thereupon, denied those branches of their motions.
Ordered that the order dated May 8, 2012, is affirmed insofar as appealed from, withone bill of costs payable by the appellants appearing separately and filing separate briefs.
On August 13, 2005, the decedent, Michael Makinen, went to South Shore FamilyPractice Associates, P.C. (hereinafter South Shore), seeking treatment for back pain, acough, chest congestion, and a sore throat. The decedent, then 42 years old, was asmoker, and had experienced instances of high blood pressure in the past. At his August13 visit, the decedent was examined by Kerri Ann Petitpain, a family nurse practitioner,who diagnosed him with bronchitis. Three days later, the decedent returned to SouthShore and was examined by Dr. Michael William Torelli, who again diagnosed him withbronchitis. On the following day, the decedent died of a ruptured aortic dissection. Thedecedent's wife subsequently commenced this action against several parties, includingTorelli, South Shore, and Petitpain, alleging, inter alia, that the decedent's death had beencaused by the failure of Torelli and Petitpain to timely diagnose and treat his aorticdissection.
After discovery had been completed, Petitpain moved, and Torelli and South Shore[*2]separately moved, for summary judgment dismissingthe complaint insofar as asserted against each of them. In support of her motion,Petitpain submitted an affidavit in which she averred that she had not departed fromaccepted standards of nursing and professional practice in failing to consider aorticdissection as a diagnosis or differential diagnosis, in part because the decedent did notdescribe his back pain as severe. Petitpain's motion was also supported by the depositiontestimony of the parties and medical records. In their separate motion, Torelli and SouthShore, which is alleged to be vicariously liable for Torelli's malpractice, adoptedPetitpain's arguments and relied upon her evidentiary submissions. In an order dated July7, 2011, the Supreme Court granted the motions. However, in a subsequent order datedMay 8, 2012, the Supreme Court granted the plaintiff's motion for leave to reargue heropposition to the motions. Upon reargument, the Supreme Court vacated that portion ofthe prior order which had granted those branches of the separate motions of Petitpain,and Torelli and South Shore which were for summary judgment dismissing the cause ofaction alleging medical malpractice insofar as asserted against each of them, andthereupon denied those branches of their motions. Petitpain, Torelli, and South Shoreappeal.
Contrary to the appellants' contention, the Supreme Court providently exercised itsdiscretion in granting the plaintiff's motion for leave to reargue (see Colpan v Allied Cent.Ambulette, Inc., 97 AD3d 776, 777 [2012]; Shields v Kleiner, 93 AD3d 710, 711 [2012]; Fung v Uddin, 60 AD3d992, 993 [2009]).
In an action sounding in medical malpractice, a defendant moving for summaryjudgment must make a prima facie showing either that there was no departure fromaccepted medical practice, or that any departure was not a proximate cause of thepatient's injuries (see Poter vAdams, 104 AD3d 925 [2013]; Mehra v Nayak, 103 AD3d 857 [2013]; LeMaire v Kuncham, 102AD3d 659 [2013]; Stukas vStreiter, 83 AD3d 18, 24 [2011]). Once a defendant has made such a showing,the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut thedefendant's prima facie showing, but only as to those elements on which the defendantmet the prima facie burden (see LeMaire v Kuncham, 102 AD3d at 660;Stukas v Streiter, 83 AD3d at 23-25).
Here, Petitpain made a prima facie showing that she did not depart from good andaccepted nursing and professional practice in her examination and treatment of thedecedent through the submission of her own affidavit, the deposition testimony of theparties, and medical records (seeGarbowski v Hudson Val. Hosp. Ctr., 85 AD3d 724, 727 [2011]; Perro v Schappert, 47 AD3d694 [2008]). However, she did not make an independent prima facie showing thatno claimed departure was a proximate cause of the decedent's injuries (see Stukas vStreiter, 83 AD3d at 31). Thus, the plaintiff was only required to raise a triable issueof fact as to whether Petitpain committed a departure in order to defeat her motion (see Mehra v Nayak, 103 AD3d857 [2013]; Stukas v Streiter, 83 AD3d at 30). The plaintiff did so throughthe affirmation of her expert physician, which was sufficient to raise a triable issue offact as to whether Petitpain departed from accepted practice by, inter alia, failing toconsider the possibility of whether the decedent's back pain had a cardiac cause and orderappropriate tests, despite the fact that the decedent had significant risk factors for aorticdissection (see Poter vAdams, 104 AD3d 925 [2013]; Olgun v Cipolla, 82 AD3d 1186, 1187 [2011]).Accordingly, on reargument, the Supreme Court properly denied that branch ofPetitpain's motion which was for summary judgment dismissing the medical malpracticecause of action insofar as asserted against her.
On reargument, the Supreme Court also properly denied that branch of the motion ofTorelli and South Shore which was for summary judgment dismissing the medicalmalpractice cause of action insofar as asserted against them. Torelli and South Shore didnot submit either an affidavit from Torelli or an expert affidavit to establish that Torellidid not depart from good and accepted medical practice in his examination and treatmentof the decedent on August 16, 2005. Although Torelli and South Shore relied onPetitpain's submissions, her affidavit did not address Torelli's treatment, and as a nursepractitioner, she was not qualified to render a medical opinion as to the relevant medicalstandard of care and whether Torelli had departed from that standard (see Vera v Soohoo, 41 AD3d586, 588 [2007]; Savage vFranco, 35 AD3d 581, 583 [2006]; Elliot v Long Is. Home, Ltd., 12 AD3d 481, 482 [2004];Mills v Moriarty, 302 AD2d 436 [2003]). Since Torelli and South Shore failed tomeet their prima facie burden, we need not consider the sufficiency of the plaintiffs'opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]). Eng, P.J., Rivera, Angiolillo and Balkin, JJ., concur. [Prior CaseHistory: 2012 NY Slip Op 31373(U).]