| Romano v Persky |
| 2014 NY Slip Op 03501 [117 AD3d 814] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| John Romano et al., Appellants, v Seth E.Persky, M.D., Respondent, et al., Defendants. |
Lerner, Arnold & Winston, LLP, New York, N.Y. (Charles M. Arnold andTatiana R. Kroma of counsel), for appellants.
Patrick F. Adams, P.C., Great River, N.Y. (Steven A. Levy of counsel), forrespondent and defendant Long Island Digestive Disease Consultants, P.C.
In an action, inter alia, to recover damages for medical malpractice and lack ofinformed consent, etc., the plaintiffs appeal, as limited by their brief, from so much of anorder of the Supreme Court, Suffolk County (Pastoressa, J.), dated July 13, 2012, asdenied those branches of their motion which were for summary judgment on the issue ofliability as against the defendant Seth E. Persky, and pursuant to CPLR 3126, in effect,for the imposition of the sanction of preclusion against the defendant Seth E. Persky forhis failure to comply with a discovery demand.
Ordered that the order is modified, on the facts and in the exercise of discretion, bydeleting the provision thereof denying that branch of the plaintiffs' motion which waspursuant to CPLR 3126, in effect, for the imposition of the sanction of preclusion againstthe defendant Seth E. Persky for his failure to comply with a discovery demand, andsubstituting therefor a provision granting that branch of the motion to the extent ofprecluding the defendant Seth E. Persky from offering any evidence at trial based uponphotographic images of the subject procedure should they become available; as somodified, the order is affirmed insofar as appealed from, without costs ordisbursements.
The plaintiff John Romano (hereinafter the injured plaintiff), and his wife suingderivatively, commenced this action after the injured plaintiff allegedly sustained aperforation of the esophagus during a medical procedure performed by the defendantphysician Seth E. Persky on November 4, 2005. This injury required an additionalsurgical procedure, which allegedly resulted in phrenic nerve damage and diaphragmparalysis on the injured plaintiff's left side. Pursuant to a third notice for discovery andinspection dated August 24, 2007, the plaintiffs demanded the production of all still ormoving photographs taken during the procedure on November 4, 2005. Perskyresponded that he was not in possession of any such photographs. During his depositionon November 5, 2007, Persky testified that it was his custom and practice to takeintraoperative photographs during procedures, but that there were no such photographs inthe injured plaintiff's chart, and he had not conducted a search for any photographs takenduring the procedure.
On January 10, 2012, the plaintiffs moved, inter alia, for summary judgment on theissue of liability as against Persky, and pursuant to CPLR 3126, in effect, for theimposition of [*2]sanctions against Persky for his failureas of that date to comply with their demand to produce the intraoperative photographs,specifically requesting, inter alia, a sanction precluding Persky from offering any suchphotographic evidence at trial. The Supreme Court denied those branches of themotion.
The Supreme Court properly denied that branch of the plaintiffs' motion which wasfor summary judgment on the issue of liability as against Persky. To establish their primafacie entitlement to judgment as a matter of law on the issue of liability for medicalmalpractice, the plaintiffs were required to demonstrate that Persky departed from goodand accepted standards of medical practice, and that the departure was a proximate causeof the injured plaintiff's injuries (see Salvatore v Winthrop Univ. Med. Ctr., 36 AD3d 887[2007]). The plaintiffs established, prima facie, through the affidavit of their expertphysician, that Persky departed from good and generally accepted medical practice, andthat those departures were a proximate cause of the injured plaintiff's injuries (see Console v Wyckoff Hgts. Med.Ctr., 19 AD3d 637 [2005]). However, in opposition, Persky raised a triable issueof fact, through the affirmation of his expert physician, as to whether Persky departedfrom good and accepted medical practice, and, if so, whether such departures were aproximate cause of the injured plaintiff's injuries. The Supreme Court providentlyexercised its discretion in considering the affirmation of Persky's expert, even though itwas submitted after the filing of the note of issue, as there was no evidence that Persky'sfailure to disclose expert witness information was intentional or willful, and there was noshowing of prejudice to the plaintiffs (see Browne v Smith, 65 AD3d 996 [2009]; Hernandez-Vega v Zwanger-PesiriRadiology Group, 39 AD3d 710 [2007]; see generally Rivers v Birnbaum, 102 AD3d 26 [2012]).Summary judgment is not appropriate in a medical malpractice action where, as here, theparties present conflicting medical expert opinions. Such conflicting expert opinionsraise issues of credibility to be resolved by a jury (see Shehebar v Boro Park Obstetrics & Gynecology, P.C.,106 AD3d 715 [2013]; Iulov Staten Is. Univ. Hosp., 106 AD3d 696 [2013]).
To establish their prima facie entitlement to judgment as a matter of law on the issueof liability as against Persky on their cause of action alleging lack of informed consent,the plaintiffs were required to demonstrate (1) that Persky failed to disclose alternativesto the subject treatment and failed to inform the injured plaintiff of reasonablyforeseeable risks associated with the treatment, and the alternatives, that a reasonablemedical practitioner would have disclosed in the same circumstances, (2) that areasonably prudent patient in the same position would not have undergone the treatmentif he or she had been fully informed, and (3) that the lack of informed consent was aproximate cause of the injury (see Magel v John T. Mather Mem. Hosp., 95 AD3d 1081[2012]; Mangaroo vBeckman, 74 AD3d 1293 [2010]; Trabal v Queens Surgi-Center, 8 AD3d 555 [2004]). Theplaintiffs failed to satisfy their prima facie burden on the cause of action alleging lack ofinformed consent, and thus, the Supreme Court properly denied that branch of theirmotion.
However, the Supreme Court improvidently exercised its discretion in denying thatbranch of the plaintiffs' motion which was pursuant to CPLR 3126 for the imposition ofthe sanction of preclusion against Persky for his failure to comply with the plaintiffs'discovery demand for photographic images taken during the subject procedure. As asanction against a party who "refuses to obey an order for disclosure or wilfully fails todisclose information which the court finds ought to have been disclosed," a court mayissue an order "prohibiting the disobedient party . . . from producing inevidence designated things or items of testimony" (CPLR 3126 [2]; see Holloway v Station BarCorp., 112 AD3d 784 [2013]). The nature and degree of the sanction to beimposed on a motion pursuant to CPLR 3126 is a matter resting within the discretion ofthe court (see Edwards vPrescott Cab Corp., 110 AD3d 671 [2013]). Here, on the record presented, inlight of Persky's usual practice to take intraoperative photographs and his admittedfailure to search for, and if found, to produce such photographs pursuant to the plaintiffs'discovery request, the sanction of preclusion is appropriate. Accordingly, the SupremeCourt should have granted that branch of the motion to the extent of precluding Perskyfrom offering any evidence at trial based upon photographic images of the subjectprocedure should they become available. Dickerson, J.P., Hall, Cohen and Miller, JJ.,concur. [Prior Case History: 2012 NY Slip Op 31892(U).]