| Morales v New York City Health & Hosps. Corp. |
| 2013 NY Slip Op 07411 [111 AD3d 436] |
| November 12, 2013 |
| Appellate Division, First Department |
| Wanda Morales, as Administratrix of the Goods, Chattelsand Credits of Yadiel Ruben Rivera, Deceased, Appellant, v New York CityHealth & Hospitals Corporation, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), forrespondent.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 8,2013, which, to the extent appealed from as limited by the briefs, granted defendant'smotion for summary judgment dismissing the medical malpractice claims based onplaintiff's decedent's first two visits to defendant's emergency room, unanimouslyaffirmed, without costs.
Plaintiff alleges that Jacobi Medical Center, a division of defendant New York CityHealth & Hospitals Corporation, committed malpractice in the care and treatment ofplaintiff's decedent, Yadiel Ruben Rivera, during his three visits to the pediatricemergency department at Jacobi in January 2010, which resulted in his death at the ageof three months due to a severe form of bacterial meningitis. The infant presented onJanuary 2 with a 100.3 degree fever that spiked to 105 degrees, and again on January 4with a fever of 104.3.
Defendant made a prima facie showing sufficient to warrant judgment dismissing theclaims arising from the first two visits, through the affirmations of its medical expert andof the doctor who treated the infant during those two visits. The expert opined, inter alia,that the applicable standard of care did not require laboratory studies after the first visit,because the standard of care in treating infants with fever who otherwise look well hadchanged with the advent of vaccines, which now prevent most infections that used to beof concern to emergency medicine staff. He opined that the doctor appropriately orderedurinalysis at the second visit. The burden then shifted to the plaintiffs to lay bare theirproof and demonstrate the existence of a triable issue of fact (see Scalisi v Oberlander, 96AD3d 106, 120 [1st Dept 2012]; Dallas-Stephenson v Waisman, 39 AD3d 303, 307 [1stDept 2007]).
In opposition to defendant's prima facie showing, plaintiff failed to raise a triableissue of fact as to whether defendant committed malpractice in the care and treatment ofplaintiff's [*2]decedent during his first two emergencyroom treatments. Plaintiff has not shown that defendant should have ordered bloodcultures during these visits.
Accordingly, defendant's motion was properly granted. Concur—Tom, J.P.,Andrias, Friedman, Freedman and Clark, JJ.