| Mancuso v Friscia |
| 2013 NY Slip Op 05515 [108 AD3d 748] |
| July 31, 2013 |
| Appellate Division, Second Department |
| Eve Mancuso et al., Appellants, v Philip L. Friscia,et al., Respondents, et al., Defendants. |
—[*1] Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone andDeirdre E. Tracey of counsel), for respondents.
In an action to recover damages for medical malpractice, the plaintiffs appeal (1), aslimited by their brief, from so much of an order of the Supreme Court, Richmond County(McMahon, J.), entered May 2, 2012, as granted the motion of the defendants Philip L.Friscia and Staten Island University Hospital for summary judgment dismissing thecomplaint insofar as asserted against them, and (2) from a judgment of the same courtentered July 30, 2012, which, upon the order, dismissed the complaint insofar as assertedagainst those defendants.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the motion of the defendantsPhilip L. Friscia and Staten Island University Hospital for summary judgment dismissingthe complaint insofar as asserted against them is denied, the complaint insofar as assertedagainst those defendants is reinstated, and the order is modified accordingly; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiffs.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of the judgment in the action (see Matterof Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from theintermediate order are brought up for review and have been considered on the appealfrom the judgment (see CPLR 5501 [a] [1]).
In December 1999, at the age of 44, the plaintiff Eve Mancuso (hereinafter thepatient) was diagnosed with Stage 1 breast cancer in her right breast. At the time, four ofthe patient's five paternal aunts had died of breast cancer, one of whom had beendiagnosed at the age of 40. Sometime after the patient's diagnosis, her fifth paternal auntwas diagnosed with breast cancer as well. On March 3, 2000, the patient underwent aright breast mastectomy. On January 8, 2001, she underwent a prophylactic mastectomyof her healthy left breast, which she requested [*2]because she could "no longer function with her anxietyover her left breast." The patient saw the defendant Philip L. Friscia, a physicianemployed by the defendant Staten Island University Hospital (hereinafter the Hospitaland hereinafter together the respondents) for routine follow-up treatment from March 12,2001, through November 15, 2007, visiting him approximately every six months formonitoring through physical exams, screenings, and blood tests for certain "tumormarkers." On November 30, 2007, Friscia informed the patient that her tumor markerswere elevated. In December 2007, the patient was diagnosed with ovarian cancer. In theircomplaint, the plaintiffs alleged that, given the plaintiff's own medical history and that ofher paternal family, as well as her father's Ashkenazi Jewish ethnicity, Friscia's failure torecommend, prior to November 2007, "BRCA" genetic testing or prophylactic surgeryremoving her ovaries, which could have prevented the onset of her ovarian cancer,constituted medical malpractice. The respondents moved for summary judgmentdismissing the complaint insofar as asserted against them and the Supreme Court grantedthe motion.
"The essential elements of medical malpractice are (1) a deviation or departure fromaccepted medical practice, and (2) evidence that such departure was a proximate cause ofinjury" (Faicco v Golub, 91AD3d 817, 818 [2012] [internal quotation marks and citation omitted]; see Roca v Perel, 51 AD3d757, 758 [2008]; DiMitri v Monsouri, 302 AD2d 420, 421 [2003]). "Aphysician moving for summary judgment dismissing a complaint alleging medicalmalpractice must establish, prima facie, either that there was no departure or that anyalleged departure was not a proximate cause of the plaintiff's injuries" (Garrett v University Assoc. inObstetrics & Gynecology, P.C., 95 AD3d 823, 825 [2012]; see Faicco v Golub, 91 AD3d817, 818 [2012]; Stukas vStreiter, 83 AD3d 18, 24 [2011]). "Furthermore, bare allegations which do notrefute the specific factual allegations of medical malpractice in the bill of particulars areinsufficient to establish entitlement to judgment as a matter of law" (Grant v Hudson Val. Hosp.Ctr., 55 AD3d 874, 874 [2008]; see Wall v Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1045[2010]; Terranova vFinklea, 45 AD3d 572 [2007]; Ward v Engel, 33 AD3d 790, 791 [2006]; Ticali v Locascio, 24 AD3d430 [2005]; Berkey v Emma, 291 AD2d 517, 518 [2002]; Drago vKing, 283 AD2d 603, 603-604 [2001]).
Here, the allegations in the bills of particulars concerning the period from March2001 through November 2007, when the patient was under Friscia's care, were thatFriscia departed from the accepted medical practices of that time by failing torecommend "BRCA" genetic testing and "prophylactic oophorectomy or bilateralsalpingo-oophorectomy" to the patient, given her personal and family medical history.Since the respondents' expert failed to provide any information as to what the acceptedmedical practices were during the period at issue with regard to BRCA genetic testing,and did not refute or even address (see Berkey v Emma, 291 AD2d at 518) thespecific allegations regarding the failure to recommend prophylactic oophorectomy orbilateral salpingo-oophorectomy, the respondents did not meet their prima facie burdenon the issue of whether there was a departure from accepted medical practices.
Accordingly, the Supreme Court should have denied the respondents' motion forsummary judgment dismissing the complaint insofar as asserted against them. Dillon,J.P., Roman, Miller and Hinds-Radix, JJ., concur.