| Khosrova v Westermann |
| 2013 NY Slip Op 05988 [109 AD3d 965] |
| September 25, 2013 |
| Appellate Division, Second Department |
| Sharon Khosrova et al., Appellants, v ChristianWestermann, Respondent. |
—[*1] Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G.Christesen of counsel), for respondent.
In an action to recover damages for medical malpractice and lack of informedconsent, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County(Baisley, Jr., J.), dated October 4, 2011, which granted the defendant's motion forsummary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
"The requisite elements of proof in a medical malpractice action are a deviation ordeparture from accepted community standards of medical practice, and evidence thatsuch deviation or departure was a proximate cause of injury or damage (see Castro v New York City Health& Hosps. Corp., 74 AD3d 1005 [2010]; Deutsch v Chaglassian, 71 AD3d 718, 719 [2010]; Geffner v North Shore Univ.Hosp., 57 AD3d 839, 842 [2008]). A defendant physician moving for summaryjudgment in a medical malpractice action has the initial burden of establishing, primafacie, either the absence of any departure from good and accepted medical practice orthat any departure was not the proximate cause of the alleged injuries (see Shichman v Yasmer, 74AD3d 1316 [2010]; Larsenv Loychusuk, 55 AD3d 560, 561 [2008]; Sandmann v Shapiro, 53 AD3d 537 [2008])" (Lau v Wan, 93 AD3d 763,765 [2012]). To rebut a defendant physician's prima facie showing of his or herentitlement to judgment as a matter of law, the plaintiff must demonstrate the existenceof a triable issue of fact through the submission of evidentiary facts or materials (see Zapata v Buitriago, 107AD3d 977 [2013]; Stukas vStreiter, 83 AD3d 18, 24 [2011]).
"To establish a cause of action [to recover damages] for malpractice based on lack ofinformed consent, [a] plaintiff must prove (1) that the person providing the professionaltreatment failed to disclose alternatives thereto and failed to inform the patient ofreasonably foreseeable risks associated with the treatment, and the alternatives, that areasonable medical practitioner would have disclosed in the same circumstances, (2) thata reasonably prudent patient in the same position would not have undergone thetreatment if he or she had been fully informed, and (3) that the lack of informed consentis a proximate cause of the injury" (Spano v Bertocci, 299 AD2d 335, 337-338[2002] [internal quotation marks omitted]; see Public Health Law § 2805-d[1]; Magel v John T. MatherMem. Hosp., 95 AD3d 1081, 1082 [2012]). "General allegations that areconclusory and unsupported by competent evidence tending to establish the essentialelements of medical malpractice are insufficient to defeat summary judgment" (Rebozo v Wilen, 41 AD3d457, 458 [2007]; seeFlanagan v [*2]Catskill Regional Med. Ctr., 65AD3d 563, 565 [2009]).
Here, the defendant met his prima facie burden of establishing his entitlement tojudgment as a matter of law dismissing the cause of action to recover damages formedical malpractice by submitting a detailed expert affirmation that was based on themedical records, demonstrating that the surgery that he performed was in accordancewith good and accepted standards of medical practice (see Mitchell v Lograno, 108AD3d 689, 692-693 [2013]; Poter v Adams, 104 AD3d 925, 926 [2013]; DiGeronimo v Fuchs, 101AD3d 933, 936 [2012]; Olgun v Cipolla, 82 AD3d 1186, 1187 [2011]; Smith-Johnson v Gabbur, 65AD3d 1122, 1124 [2009]). The defendant also made a prima facie showing of hisentitlement to judgment as a matter of law dismissing the cause of action to recoverdamages for medical malpractice based on lack of informed consent through theaffirmation of his expert, and documentary evidence including the written consent formsigned by the injured plaintiff, which demonstrated that he did not fail to obtain theinjured plaintiff's informed consent to the surgery (see Public Health Law§ 2805-d; Zapata v Buitriago, 107 AD3d 977 [2013]; Matos vSchwartz, 104 AD3d 650, 652 [2013]; Johnson v Staten Is. Med. Group, 82AD3d 708, 709 [2011]). In opposition, the plaintiffs failed to raise a triable issue of fact(see Lau v Wan, 93 AD3d at 765). Since the plaintiffs' medical expert'saffirmation was conclusory, speculative, and without basis in the record, it wasinsufficient to raise a triable issue of fact (see Matos v Schwartz, 104 AD3d at652; DiGeronimo v Fuchs, 101 AD3d at 936; Lahara v Auteri, 97 AD3d 799, 799-800 [2012]; Lau vWan, 93 AD3d at 765; Andreoni v Richmond, 82 AD3d 1139, 1140 [2011]).
The plaintiffs' remaining contentions are either improperly raised for the first time onappeal (see Marinkovic v IPCIntl. of Ill., 95 AD3d 839 [2012]; Ross v Gidwani, 47 AD3d 912 [2008]) or without merit.
Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint. Dillon, J.P., Chambers, Austin andHinds-Radix, JJ., concur. [Prior Case History: 2011 NY Slip Op 32628(U).]