| DeLaurentis v Orange Regional Med. Ctr.-HortonCampus |
| 2014 NY Slip Op 03474 [117 AD3d 774] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| Cherylann F. DeLaurentis, as the Administratrix of theEstate of Kathleen Ann Peroutka Kromholz, Deceased,Respondent-Appellant, v Orange Regional Medical Center-Horton Campus,Appellant-Respondent, and Kweon I. Stambaugh, M.D., et al., Respondents, et al.,Defendants. |
Sholes & Miller LLP, Poughkeepsie, N.Y. (Angela Thompson-Tinsley ofcounsel), for appellant-respondent.
Peter E. Tangredi (Linda Trummer-Napolitano, White Plains, N.Y., of counsel), forrespondent-appellant.
Feldman, Kleidman & Coffey LLP, Fishkill, N.Y. (Marsha Solomon Weiss ofcounsel), for respondents.
In an action to recover damages for medical malpractice and wrongful death, thedefendant Orange Regional Medical Center-Horton Campus appeals from so much of anorder of the Supreme Court, Orange County (Onofry, J.), dated May 3, 2012, as deniedits motion for summary judgment dismissing the complaint insofar as asserted against it,and the plaintiff cross-appeals, as limited by her brief, from so much of the same order asdenied her cross motion for leave to amend her bill of particulars.
Ordered that the order is reversed insofar as appealed from, on the law, and themotion of the defendant Orange Regional Medical Center-Horton Campus for summaryjudgment dismissing the complaint insofar as asserted against it is granted; and it isfurther,
Ordered that the order is affirmed insofar as cross-appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendant Orange Regional MedicalCenter-Horton Campus and the defendants Kweon I. Stambaugh and Crystal Run HealthCare, LLP, appearing separately and filing separate briefs.
The plaintiff's decedent underwent a tracheostomy at the defendant Orange Regional[*2]Medical Center-Horton Campus (hereinafterORMC), performed by the defendant physician Kweon I. Stambaugh, an employee of thedefendant Crystal Run Health Care, LLP (hereinafter CRHC). The following day, thetracheostomy tube allegedly became dislodged while the decedent was being turned overin bed by the ORMC nursing staff so that they could bathe her. The decedent's oxygensaturation level dropped. The nurses attempted to use an Ambubag through thetracheostomy tube to provide oxygen to the decedent. A subcutaneous emphysemaformed around the tube, indicating that the air was going into the tissue in the neck,around the tube. The nurses called Dr. John Ferguson, a critical care specialist who wasin the critical care unit at the time, to the decedent's bedside. The nurses also paged thedefendant Haitham Mohammad Nsour, a pulmonologist, and Dr. Kothari, ananesthesiologist. Dr. Ferguson used an intubating bronchoscope to attempt to establish anairway. When that was unsuccessful, he attempted to find the opening in the tracheausing his fingers. The doctors were unable to establish an airway in time to prevent thedecedent's death. Following the commencement of this action and the completion ofdiscovery, ORMC moved for summary judgment dismissing the complaint insofar asasserted against it, and the plaintiff cross-moved for leave to amend her bill of particularsto assert additional theories of liability against ORMC, Stambaugh, and CRHC.
A defendant seeking summary judgment in a medical malpractice action bears theinitial burden of establishing, prima facie, either that there was no departure from theapplicable standard of care, or that any alleged departure did not proximately cause theinjuries. In opposition, the plaintiff must demonstrate the existence of a triable issue offact as to the elements with respect to which the defendant has met its initial burden (see Gentile vMcFarlane-Johansson, 108 AD3d 499 [2013]; Sukhraj v New York City Health& Hosps. Corp., 106 AD3d 809 [2013]; Rivers v Birnbaum, 102 AD3d26, 43 [2012]; Swanson vRaju, 95 AD3d 1105 [2012]). ORMC established its prima facie entitlement tojudgment as a matter of law through the submission of the affirmation of its medicalexpert, the decedent's medical records, and the transcripts of deposition testimony (see Matos v Schwartz, 104AD3d 650 [2013]; Perro vSchappert, 47 AD3d 694 [2008]; Ramsay v Good Samaritan Hosp., 24 AD3d 645 [2005]).Through this evidence, ORMC established, prima facie, that it did not depart from theapplicable standard of care. In opposition, the plaintiff submitted an expert affirmationthat was speculative and conclusory. The plaintiff's expert failed to identify or define theapplicable standard of care, and to set forth the manner in which the conduct of ORMC'snursing staff deviated from that standard of care (see Poblocki v Todoro, 49 AD3d 1239 [2008]; Snyder v Simon, 49 AD3d954 [2008]). The assertions of the plaintiff's expert were unsupported by competentevidence tending to establish the essential elements of medical malpractice againstORMC, and, thus, were insufficient to defeat its motion for summary judgment (seeAlvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Bendel v Rajpal, 101 AD3d662 [2012]; Arkin vResnick, 68 AD3d 692 [2009]; Myers v Ferrara, 56 AD3d 78 [2008]; Rea v Gallagher, 31 AD3d731 [2006]).
The court providently exercised its discretion in denying the plaintiff's cross motionfor leave to amend her bill of particulars, as she offered no reasonable excuse for thedelay in making the cross motion once she was aware of the facts upon which the crossmotion was predicated, and ORMC, Stambaugh, and CRHC would have been prejudicedif leave to amend had been granted (see Schreiber-Cross v State of New York, 57 AD3d 881[2008]; Navarette vAlexiades, 50 AD3d 869 [2008]; Cohen v Ho, 38 AD3d 705 [2007]). Mastro, J.P.,Chambers, Lott and Duffy, JJ., concur.