| Castelli v Westchester County Health Care Corp. |
| 2014 NY Slip Op 02737 [116 AD3d 898] |
| April 23, 2014 |
| Appellate Division, Second Department |
| Denise Castelli, Appellant, v Westchester CountyHealth Care Corporation, Defendant, and Andrew Moulton et al.,Respondents. |
—[*1] Russo & Toner, LLP, New York, N.Y. (Judith J. Maxwell of counsel), forrespondents.
In an action to recover damages for medical malpractice, the plaintiff appeals froman order of the Supreme Court, Westchester County (Smith, J.), dated April 30, 2012,which granted the motion of the defendants Andrew Moulton and UniversityOrthopedics, P.C., for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendants Andrew Moulton and University Orthopedics, P.C., for summary judgmentdismissing the complaint insofar as asserted against them is denied.
The plaintiff sustained a "tibia/fibula fracture" of her right leg while playing softballon April 22, 2008, and was rushed to Westchester County Medical Center where, thefollowing day, the defendant Andrew Moulton, an orthopedic surgeon, performedintramedullary fixation of the fracture, requiring the insertion of a rod "to hold thefracture site together." Following her discharge, the plaintiff returned to see Moulton onMay 9, 2008, June 18, 2008, and July 30, 2008, for follow-up care. The plaintiff wassubsequently treated in New Jersey for an infection, and was ultimately diagnosed withosteomyelitis. On November 3, 2009, she underwent a below-the-knee amputation of herright leg.
The plaintiff commenced this medical malpractice action against Moulton and hispractice, University Orthopedics, P.C. (hereinafter together the Moulton defendants), aswell as Westchester County Health Care Corporation (hereinafter WCHCC), alleging,inter alia, negligence in failing to appreciate "an ulcer on the anterior portion of the rightlower extremity," failing to prescribe antibiotics, and "allowing a lesion on the plaintiff'santerior tibia near the fracture site to progress to a point at which osteomyelitis wasallowed to set in." By stipulation dated November 16, 2011, the plaintiff discontinuedher action as against WCHCC.[*2]
On their motion for summary judgmentdismissing the complaint insofar as asserted against them, the Moulton defendants mettheir initial burden of establishing that they did not depart from acceptable standards ofmedical care by submitting, among other things, affirmations by experts concluding thatMoulton's follow-up treatment on May 9, 2008, June 18, 2008, and July 30, 2008 waswithin the accepted standards of care (see Morales v New York City Health & Hosps. Corp., 111AD3d 436 [2013]; Arochov D. Kruger, P.A., 110 AD3d 749 [2013]; Longtemps v Oliva, 110 AD3d 1316 [2013]). In addition,they established that any departure was not a proximate cause of the plaintiff's allegedinjuries (see Pinto v PutnamHosp. Ctr., Inc., 107 AD3d 869 [2013]). In opposition, however, the plaintiffraised triable issues of fact as to whether Moulton departed from accepted standards ofcare during the three follow-up visits, and as to whether the alleged departure was aproximate cause of the plaintiff's injuries (see Longtemps v Oliva, 110 AD3d 1316 [2013]; Pinto v Putnam Hosp. Ctr.,Inc., 107 AD3d 869 [2013]).
The parties' remaining contentions are without merit.
Accordingly, the Supreme Court erred in granting the Moulton defendants' motionfor summary judgment dismissing the complaint insofar as asserted against them. Eng,P.J., Dillon, Maltese and Duffy, JJ., concur.