| Doucett v Strominger |
| 2013 NY Slip Op 08175 [112 AD3d 1030] |
| December 5, 2013 |
| Appellate Division, Third Department |
| Mark Doucett, Respondent, v Robert N. Strominger,Appellant. |
—[*1] Cote & Van Dyke, LLP, Syracuse (Joseph S. Cote III of counsel), forrespondent.
Stein, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered December20, 2012 in Tompkins County, which denied defendant's motion for summary judgmentdismissing the complaint.
Plaintiff was diagnosed with Meniere's disease,[FN1]an autoimmune inner ear disease, which ultimately resulted in complete hearing loss inplaintiff's left ear. In March 2002, after the disease started to affect plaintiff's right ear, hebegan treating with defendant, an otolaryngologist, who referred plaintiff to LawrenceEndo, a rheumatologist. In August 2002, Endo initiated treatment of plaintiff withMethotrexate therapy. Plaintiff's hearing thereafter remained stable. However, in July2004, Endo discontinued plaintiff's Methotrexate therapy as a result of plaintiff's poorliver function tests and in accordance with a study published in October 2003 in theJournal of the American Medical Association which suggested that Methotrexate therapywas ineffective in the treatment of autoimmune hearing loss and had major side effects.Plaintiff continued to treat with defendant and complained of worsening symptoms.Indeed, subsequent hearing tests performed between September 2004 and April 2005showed significant worsening of plaintiff's hearing in his right ear. Nevertheless,defendant did not recommence Methotrexate [*2]therapyor discuss with plaintiff the option of doing so. In late fall of 2005, plaintiff presented todefendant with near total hearing loss in his right ear. Plaintiff thereafter commenced thisaction to recover for damages resulting from, among other things, defendant's allegednegligence and medical malpractice.[FN2]After joinder of issue and discovery, defendant moved for summary judgment dismissingthe complaint. On defendant's appeal from Supreme Court's denial of such motion, weaffirm.
As the proponent of a motion for summary judgment in a medical malpractice action,defendant "bore the initial burden of establishing that there was no departure fromaccepted standards of practice or that plaintiff was not injured thereby" (Derusha v Sellig, 92 AD3d1193, 1193 [2012] [internal quotation marks and citations omitted]; see Helfer v Chapin, 96 AD3d1270, 1271 [2012]; Maki vBassett Healthcare, 85 AD3d 1366, 1368 [2011], appeal dismissed 17NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]). Here, plaintiffalleged that defendant departed from accepted standards of medical care by, among otherthings, failing to "reinitiate immunosuppressant therapy" after Endo terminatedMethotrexate and plaintiff's hearing deteriorated. In support of the motion, defendantsubmitted, among other things, the affidavit of his expert, Benjamin Crane. Crane, anotolaryngologist, noted that defendant was not responsible for commencing ordiscontinuing the Methotrexate and opined that defendant acted within acceptedstandards of medical care in his "accept[ance] and agree[ment] with [Endo's]recommended discontinuation of [M]ethotrexate" based on various concerns, includingplaintiff's liver function tests. Crane further opined that, considering the risks associatedwith such treatment—particularly, liver failure—as well as the 2003 reportwhich disputed the beneficial effect of [M]ethotrexate treatment on Meniere'sdisease,[FN3]"[t]here was no sound medical basis for the continuation or re-initiation of Methotrexatetherapy for [plaintiff]." Overall, Crane concluded that there was no evidence thatdefendant departed from accepted standards of medical care in the manner in which hetreated plaintiff. The foregoing was sufficient to establish defendant's prima facieentitlement to judgment in his favor as a matter of law, thus shifting the burden toplaintiff to raise a question of fact (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]; Maki v Bassett Healthcare, 85 AD3d at 1368-1369; Adams v Anderson, 84 AD3d1522, 1524 [2011]).
To that end, plaintiff submitted the affirmation of Fred Holt, an otolaryngologist,who opined that defendant deviated from accepted standards of medical care in themanner in which he treated plaintiff after Endo discontinued Methotrexate therapy. Holtdiscounted the 2003 study to which defendant and Crane referred as being inconclusiveand contradictory to other medical literature that supported Methotrexate therapy forautoimmune hearing loss. He also opined that the results of two hearing tests performedon plaintiff after the discontinuance of Methotrexate, indicating a significantdeterioration of plaintiff's hearing, were "red flag[s]" which, considering plaintiff'smedical history and the stabilization of his hearing while taking the drug, should have[*3]prompted defendant to discuss with plaintiff theoption of resuming Methotrexate therapy.[FN4]Holt also noted that defendant's records do not indicate that he reviewed the results of theApril 2005 hearing test. Significantly, there was also an absence of any suggestion in therecords that the test results were conveyed to plaintiff. Notwithstanding the fact thatdefendant was not responsible for commencing or discontinuing the Methotrexate, it wasHolt's opinion that defendant's failure to either treat plaintiff with Methotrexate after hishearing deteriorated and/or discuss with plaintiff the option of doing so were departuresfrom the accepted standards of medical care and were substantial factors in causingplaintiff's acute hearing loss.
We are unpersuaded by defendant's contention that Holt's affirmation wasspeculative and conclusory and, therefore, insufficient to defeat defendant's motion (see Carter v Tana, 68 AD3d1577, 1580 [2009]). The record reflects that Holt referred to prior medical studies,based his opinion on a review of plaintiff's medical record and history and made factualreferences to plaintiff's treatment. Viewing the evidence in a light most favorable toplaintiff, Holt's affidavit was sufficient to demonstrate the existence of triable issues offact both as to whether defendant departed from accepted standards of medical care andwhether such departures were a substantial factor in causing plaintiff's injury (seeDerusha v Sellig, 92 AD3d at 1195; Hickey v Arnot-Ogden Med. Ctr., 79 AD3d 1400, 1401[2010]). Accordingly, defendant's motion for summary judgment was properly denied.
Rose, J.P., McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: According to defendant,Meniere's disease consists of "fluctuating intermittent vertigo, ear fullness, progressivehearing loss."
Footnote 2: Plaintiff also namedEndo as a defendant. However, Supreme Court dismissed the claims against Endo in anorder which is not at issue on this appeal.
Footnote 3: Defendant testified thathe was aware of the study to which Endo referred.
Footnote 4: In fact, defendantacknowledged at his deposition that Methotrexate was a viable treatment option in April2005 and that he should have discussed that option with plaintiff.