| Denis v Manhattanville Rehabilitation & Health Care Ctr.,LLC |
| 2013 NY Slip Op 07253 [111 AD3d 406] |
| November 7, 2013 |
| Appellate Division, First Department |
| Nelson Denis, as Proposed Administrator of the Goods,Chattels and Credits of Sarah Rabassa, Deceased, Appellant, v ManhattanvilleRehabilitation and Health Care Center, LLC, Doing Business as Manhattanville HealthCare Center, LLC, et al., Respondents. |
—[*1] Martin Clearwater & Bell LLP, New York (Stewart G. Milch of counsel), forManhattanville Rehabilitation and Health Care Center, LLC, respondent. Garson & Jakub, LLP, New York (Susan M. McNamara of counsel), for CarlFranzetti, M.D., Vandana Patil, M.D. and Riverdale Family Practice, LLC,respondents.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 19,2012, which, to the extent appealed from as limited by the briefs, granted defendants'motions for summary judgment dismissing the causes of action for medical malpractice,negligence and lack of informed consent, unanimously affirmed, without costs.
Plaintiff failed to submit evidence to rebut defendants' prima facie showing that theydid not deviate from the accepted standard of care in their treatment of the decedentduring her 20-day admission at defendant Manhattanville. His expert assumed that thedecedent had a C. difficile infection throughout her admission and that theinfection worsened during her stay. He failed to support these conclusions by referring tospecific entries in the records, and, as to two negative stool sample tests, he speculatedthat they had been handled poorly. Plaintiff's expert's claims that the decedent sufferedfrom dehydration and was not properly nourished were conclusory and failed tocontrovert defendants' expert's evidence to the contrary. Moreover, the expert failed tocausally relate the decedent's injuries to defendants' alleged departures from the standardof care (see Margolese v Uribe, 238 AD2d 164 [1st Dept 1997]).
Plaintiff's expert's opinion as to the lack of informed consent was predicated on hisunsupported assumption as to the duration of the C. difficile infection and reliedon alternative "potential" treatments that were experimental, without addressing whetherthe decedent would have been a candidate for any of them. Moreover, the expert did notopine that the lack of informed consent was a proximate cause of the decedent's injuries.The opinion was therefore insufficient to raise an inference that a reasonably prudentperson in the decedent's circumstances, having been appropriately informed of the risksand alternatives, would have elected an alternate course of treatment, and that the lack ofinformed consent was the proximate cause of the decedent's injuries (see PublicHealth Law § 2805-d [1], [3]; Shkolnik v Hospital for Joint DiseasesOrthopaedic Inst., 211 [*2]AD2d 347, 350 [1st Dept1995], lv dismissed in part and denied in part 87 NY2d 895 [1995]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Sweeny, J.P., Moskowitz, Renwick, DeGrasse and Gische, JJ.