| Schofield v Edward B. Borden, M.D., P.C. |
| 2014 NY Slip Op 03677 [117 AD3d 936] |
| May 21, 2014 |
| Appellate Division, Second Department |
[*1]
| Rechandle Schofield et al.,Respondents, v Edward B. Borden, M.D., P.C., et al.,Appellants. |
Keller, O'Reilly & Watson, P.C., Woodbury, N.Y. (Erin L. Deacy of counsel),for appellants.
In an action to recover damages for medical malpractice, etc., the defendants appealfrom an order of the Supreme Court, Suffolk County (Martin, J.), dated September 6,2012, which denied their motion for summary judgment dismissing so much of thecomplaint as alleged that the plaintiff Rechandle Schofield sustained a frozen leftshoulder as a result of a bilateral mastectomy procedure performed by the defendantEdward B. Borden on November 10, 2005.
Ordered that the order is affirmed, with costs.
"The essential elements of medical malpractice are (1) a deviation or departure fromaccepted medical practice, and (2) evidence that such departure was a proximate cause ofinjury" (Faicco v Golub, 91AD3d 817, 818 [2012] [internal quotation marks omitted]; see Roca v Perel, 51 AD3d757, 758 [2008]; Furey vKraft, 27 AD3d 416, 417-418 [2006]). "A physician moving for summaryjudgment dismissing a complaint alleging medical malpractice must establish, primafacie, either that there was no departure or that any alleged departure was not a proximatecause of the plaintiff's injuries" (Garrett v University Assoc. in Obstetrics & Gynecology,P.C., 95 AD3d 823, 825 [2012]; see Faicco v Golub, 91 AD3d at 818;Stukas v Streiter, 83 AD3d18, 24 [2011]). "Furthermore, bare allegations which do not refute the specificfactual allegations of medical malpractice in the bill of particulars are insufficient toestablish entitlement to judgment as a matter of law" (Grant v Hudson Val. Hosp. Ctr., 55 AD3d 874, 874 [2008];see Wall v Flushing Hosp. Med.Ctr., 78 AD3d 1043, 1045 [2010]; Terranova v Finklea, 45 AD3d 572 [2007]; Ward v Engel, 33 AD3d790, 791 [2006]).
The Supreme Court denied the defendant's motion for summary judgment dismissingso much of the complaint as alleged that the plaintiff Rechandle Schofield (hereinafterthe injured plaintiff) sustained a frozen left shoulder as a result of a prophylactic bilateralmastectomy procedure performed by the defendant Edward B. Borden. The courtconcluded that the defendants established their prima facie entitlement to judgment as amatter of law by demonstrating that they did not depart from accepted medical practiceand that, in any event, any departure did not proximately cause the injured plaintiff tosustain a frozen left shoulder, but that the plaintiffs raised a triable issue of fact inopposition.
[*2] We agree with theSupreme Court that the defendants were not entitled to the relief requested, but for adifferent reason. The defendants' expert failed to address the plaintiffs' specificallegation, raised in the bill of particulars and amplified by the injured plaintiff'sdeposition testimony, that the defendants departed from accepted medical practice bymaking medically unnecessary incisions in the injured plaintiff's axilla fossa during theprophylactic bilateral mastectomy that caused the injured plaintiff to sustain a frozen leftshoulder. Consequently, the defendants failed to meet their prima facie burden on theissue of whether there was a departure from accepted medical practice. Thus, thedefendants' motion was properly denied without regard to the sufficiency of the plaintiffs'opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]; Lormel vMacura, 113 AD3d 734, 735-736 [2014]; Faicco v Golub, 91 AD3d at818). Rivera, J.P., Leventhal, Hinds-Radix and Maltese, JJ., concur. [Prior CaseHistory: 2012 NY Slip Op 32365(U).]