| Longtemps v Oliva |
| 2013 NY Slip Op 06922 [110 AD3d 1316] |
| October 24, 2013 |
| Appellate Division, Third Department |
| Amy Longtemps, as Parent and Guardian of TaylorLongtemps, an Infant, Appellant, v Peter J. Oliva et al.,Respondents. |
—[*1] Carter, Conboy, Case, Blackmore, Maloney & Laird, PC, Albany (Jonathan E.Hansen of counsel), for Peter J. Oliva, respondent. O'Connor, O'Connor, Bresee & First, PC, Albany (Margaret E. Dunham of counsel),for Marc Sarnow, respondent.
Peters, P.J. Appeal from an order of the Supreme Court (Muller, J.), enteredDecember 17, 2012 in Clinton County, which granted defendants' motions for summaryjudgment dismissing the complaint.
Taylor Longtemps was injured on August 8, 2009 when he stepped on a rusty nailwhich penetrated his left heel. After visiting his pediatrician with complaints oftenderness, Longtemps was referred to defendant Peter J. Oliva, a plastic surgeon. Uponhis initial visit on August 12, 2009, Longtemps' heel was observed to be rounded,swollen and discolored, but had no discharge or evidence of cellulitis. Oliva noted thattests performed the day before revealed no signs of infection or evidence of a foreignbody or fracture and prescribed Keflex, a broad range antibiotic. Longtemps returned toOliva the following day and then again on August 20, 2010 with complaints of sharp,shooting pains in his left heel. Oliva ultimately assessed Longtemps' injury as a probablebone bruise which did not appear to be infected, and instructed him to follow up for areferral for pain management if the pain did not subside.[*2]
Longtemps did not return to Oliva for furthertreatment, instead presenting to defendant Marc Sarnow, a podiatrist, the following day.Based upon Longtemps' complaints and the fact that he had been wearing rubber-soledsneakers at the time of the injury, Sarnow immediately suspected a pseudomonasinfection and ordered an MRI. The MRI revealed osteomyelitis, a bone infection, andLongtemps underwent surgery on September 2, 2009 for debridement and drainage of hisleft heel. Bone cultures taken from Longtemps' foot during the surgery tested positive forpseudomonas. A second surgery was performed on September 16, 2009 for furtherdebridement and insertion of a bone graft.
Plaintiff, Longtemps' mother, commenced this medical malpractice action allegingthat defendants were negligent in failing to properly diagnose and treat Longtemps'pseudomonas infection. Following joinder of issue and discovery, defendants eachmoved for summary judgment dismissing the complaint. Supreme Court granted themotions, and this appeal by plaintiff ensued.
As the proponents of the respective motions for summary judgment, defendants borethe initial burden of establishing that they did not depart from acceptable standards ofcare or that any such departure did not cause the injury (see Olinsky-Paul v Jaffe, 105AD3d 1181, 1182 [2013]; LaFountain v Champlain Val. Physicians Hosp. Med. Ctr., 97AD3d 1060, 1061 [2012]; Derusha v Sellig, 92 AD3d 1193, 1193 [2012]). They metthis burden by submitting, among other things, their deposition testimony, Longtemps'medical records and affidavits from experts in their medical fields concluding that theirtreatment of Longtemps was at all times within the accepted standards of care. In thatregard, Oliva's expert opined that Oliva did not depart from accepted standards of care infailing to order an MRI, provide a different antibiotic or otherwise diagnose apseudomonas infection since the infection did not manifest itself in such a way that itshould have been diagnosed by a reasonably prudent practitioner during the time whenLongtemps was under Oliva's care. Sarnow's expert opined that Longtemps did notpresent with symptoms requiring emergency surgery or an emergency admission forintravenous antibiotics, and that the time between the August 26, 2009 MRI confirmingSarnow's suspicion of infection and the September 2, 2009 surgery comported withacceptable standards of medical care. Accordingly, the burden shifted to plaintiff topresent expert medical opinion evidence establishing a deviation from the acceptedstandard of care and that such departure was a proximate cause of Longtemps' injuries(see Martino v Miller, 97AD3d 1009, 1010 [2012]; Derusha v Sellig, 92 AD3d at 1194).
Plaintiff submitted the affidavit of Bryan Bilfield, a board-certified orthopedicsurgeon, who opined that Oliva deviated from the applicable standard of care by failingto entertain a diagnosis of a pseudomonas infection secondary to Longtemps' puncturewound. According to Bilfield, it is well established in medical literature and clinicalpractice that a puncture wound through the rubber sole of a sneaker presents a high riskfor pseudomonas infection. Notably, this was confirmed by Sarnow during hisexamination before trial. Indeed, as Bilfield noted, it was precisely this heightened riskfor pseudomonas infection associated with puncture wounds involving rubber soledfootwear that led Sarnow to suspect a possible pseudomonas infection and order an MRIduring his first examination of Longtemps—just one day after he was last seen byOliva (see Dugan v TroyPediatrics, LLP, 105 AD3d 1188, 1192 [2013]). Viewing the evidence in a lightmost favorable to plaintiff, we find that Bilfield's affidavit was sufficient to demonstratethe existence of triable issues of fact as to whether Oliva departed from the applicablestandard of care (see id.; Derusha v Sellig, 92 AD3d at 1194; Carter v Tana, 68 AD3d1577, 1580 [2009]). Furthermore, while Bilfield's affidavit and attached report aresuccinct on the issue of proximate [*3]cause, they arebased upon a review of the medical records and deposition transcripts and, in our view,provide a sufficient link between the alleged deviation and the required surgery (see Plourd v Sidoti, 69 AD3d1038, 1039 [2010]; Carter v Tana, 68 AD3d at 1580; Bell v Ellis Hosp., 50 AD3d1240, 1242 [2008]). Accordingly, Oliva's motion for summary judgment shouldhave been denied.
We reach a different conclusion with respect to Sarnow's motion. "General,conclusory allegations of medical malpractice, based on speculation or unsupported bycompetent evidence, are insufficient to meet plaintiff's burden and defeat summaryjudgment" (Chase v CayugaMed. Ctr. at Ithaca, 2 AD3d 990, 990-991 [2003] [citation omitted]; accord Caulkins v Vicinanzo,71 AD3d 1224, 1226 [2010]; see Alvarez v Prospect Hosp., 68 NY2d 320,325 [1986]). In response to the motion, plaintiff submitted the redacted affirmation of aphysician who is board certified in foot and ankle surgery. He averred that the MRIresults necessitated that plaintiff be admitted to a hospital on an emergency basis forintravenous antibiotics or, alternatively, that an emergency referral be made to determinewhether plaintiff could begin receiving intravenous treatment through an infusion center,and that the failure to do so constituted a departure from the acceptable standards of care.However, we find no evidentiary support for the expert's conclusory statement that theinfection worsened from the time of the MRI results revealing the osteomyelitis to thetime surgery was performed. Moreover, the expert failed to explain how an emergencyhospital admission or referral for intravenous antibiotics would have produced a differentresult for Longtemps, or what that different result would have been, and thus any claimthat Longtemps' condition would have improved had he received intravenous antibioticsis purely speculative. As such, his affirmation was insufficient to raise a question of factas to causation (see Shashi vSouth Nassau Communities Hosp., 104 AD3d 838, 839 [2013]; Goldsmith v Taverni, 90 AD3d704, 705 [2011]; Hoffmanv Pelletier, 6 AD3d 889, 891 [2004]), and Supreme Court appropriately grantedSarnow's motion for summary judgment.
Rose, Lahtinen and Egan Jr., JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as granted defendant Peter J. Oliva'smotion for summary judgment; motion denied; and, as so modified, affirmed.