| Rivera v Albany Med. Ctr. Hosp. |
| 2014 NY Slip Op 05236 [119 AD3d 1135] |
| July 10, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 Raul Rivera, Respondent, v Albany Medical CenterHospital et al., Appellants. |
Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch ofcounsel), for appellants.
Englert, Coffey, McHugh & Fantauzzi, LLP, Schenectady (Gregory E. Schaafof counsel), for respondent.
McCarthy, J. Appeal from an order of the Supreme Court (J. Sise, J.), enteredOctober 8, 2013 in Montgomery County, which denied defendants' motion for summaryjudgment dismissing the complaint.
Plaintiff was diagnosed with Hirschsprung's disease, a condition that affects thenerve cells embedded in the wall of the rectum and which can cause severe constipation.After two unsuccessful medical procedures, defendant underwent an openproctosigmoidectomy—the goal of which was to remove the diseased portion ofplaintiff's rectum—performed by a physician at defendants' medical facility.Plaintiff thereafter commenced this action alleging medical malpractice and lack ofinformed consent, based upon, among other things, the claim that he now sufferspermanent erectile dysfunction as a result of the surgery. Following discovery,defendants moved for summary judgment dismissing both causes of action. SupremeCourt denied the motion in its entirety, prompting this appeal.
As an initial matter, defendants' submission of a medical expert's affidavit with theexpert's name redacted is incompetent evidence to support their summary judgmentmotion. In order to establish a prima facie entitlement to judgment as a matter of law,defendants were required to "tender[ ] sufficient, competent, admissible evidencedemonstrating the absence of any [*2]genuine issue offact" (Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 754 [2001]).Among other submissions, defendants provided an affidavit from a medical expert whoseidentity was redacted and who opined on the appropriateness of plaintiff's medical careand the adequacy of the warnings given to plaintiff. Defendants also submitted anunredacted version of the affidavit for Supreme Court's in camera review. Becausedefendants were the movants for summary judgment, their submission of an anonymousexpert affidavit was incompetent evidence not proper for consideration upon the motion(see Sellino v Kirtane, 73AD3d 728, 728 [2010]; Mackey v Southampton Hosp., 264 AD2d 410, 410[1999]; Henson v Winthrop Univ. Hosp., 249 AD2d 510, 510 [1998]; Maranov Mercy Hosp., 241 AD2d 48, 51 [1998]; see generally Morrison v Hindley,221 AD2d 691, 693 [1995] [leaving unanswered the question of whether the court couldproperly consider such evidence if signed affidavits were provided for in camerareview]).
While the Legislature has allowed for some protection from disclosure of theidentities of medical experts during "[t]rial preparation" (CPLR 3101 [d] [1] [i]), and,consistent with this intention, courts have found it appropriate to allow nonmovants inthe summary judgment context to also withhold experts' identities from their adversariesupon the reasoning that such parties did not choose to abandon the disclosure protectionsprovided during trial preparation (see Cerny v Williams, 32 AD3d 881, 886 [2006];McCarty v Community Hosp. of Glen Cove, 203 AD2d 432, 433 [1994]), theLegislature has shown no broad intention of protecting experts from accountability at thepoint where their opinions are employed for the purpose of judicially resolving a case ora cause of action. Further, we see no compelling reason to allow for such anonymity thatwould outweigh the benefit that accountability provides in promoting candor (seegenerally Marano v Mercy Hosp., 241 AD2d at 51-52). Requiring a movant to revealan expert's identity in such circumstances would allow a nonmovant to meaningfullypursue information such as whether that expert has ever espoused a contradictoryopinion, whether the individual is actually a recognized expert and whether thatindividual has been discredited in the relevant field prior to any possible resolution of thecase on the motion (see id. at 51). Further, any expert who anticipates a futureopportunity to espouse a contradictory opinion would be on notice that public recordcould be used to hold him or her to account for any unwarranted discrepancy betweensuch opinions.[FN1]For these reasons, we will not consider the incompetent affidavit of defendants' medicalexpert.
Turning to the evidence properly before this Court, defendants failed to meet theirinitial burden establishing that they were entitled to summary judgment dismissing thenegligence-based medical malpractice cause of action.[FN2] To meet this initial burden, defendantswere [*3]required to establish either that there was nodeparture from accepted standards of practice in plaintiff's treatment or that any suchdeviation did not injure plaintiff (see Cole v Champlain Val. Physicians' Hosp. Med. Ctr., 116AD3d 1283, 1285 [2014]; Longtemps v Oliva, 110 AD3d 1316, 1317 [2013]). Aphysician's sworn statements can be sufficient to meet this initial burden, provided thatthey are "detailed, specific and factual in nature" (Toomey v Adirondack SurgicalAssoc., 280 AD2d at 755; accord Amodio v Wolpert, 52 AD3d 1078, 1079 [2008]).Defendants' competent submissions, including, among other things, medical records anddeposition testimony from the physician who treated plaintiff, fail to establish either thatthe physician provided care that did not depart from accepted standards of practice or thatthe care did not injure plaintiff, as the testimony cannot reasonably be interpreted tospecifically reference the appropriate standard of care in these circumstances or tootherwise even assert that plaintiff's injury was not caused by his actual care.Accordingly, Supreme Court properly denied defendants' motion for summary judgmenton the negligence-based medical malpractice cause of action.
Further, defendants were not entitled to summary judgment on the cause of action forlack of informed consent. In order to meet their burden on this cause of action,defendants were required to establish either that the practitioner "disclose[d] the risks,benefits and alternatives to the procedure or treatment that a reasonable practitionerwould have disclosed" or that "a reasonable person in the plaintiff's position, fullyinformed, would have elected . . . to undergo the procedure or treatment"(Orphan v Pilnik, 15 NY3d907, 908 [2010]; see Public Health Law § 2805-d [1], [3]). Thetestimony provided by the physician who treated plaintiff did not specifically establisheither that the risks, benefits and alternatives to the surgery that he claimed to haveexplained to plaintiff were also the ones that a reasonable practitioner would havedisclosed or that a reasonable person, so informed, would have elected for the surgeryrather than the other options described in the testimony, one of which included "leav[ing]everything alone." In any event, even if defendants had met their burden on either ofthese issues, plaintiff raised material issues of fact as to each. Contrary to defendants'contention, CPLR 4401-a, regarding plaintiff's burden of providing expert testimony attrial to support his cause of action, does not govern our review here; inasmuch asdefendants' submissions conceded that a warning was necessary regarding the potentialinjuries to nerve cells that controlled the intimate function of the penis and asserted thatsuch a warning was given to plaintiff, plaintiff's contradictory testimony that no suchwarning was ever given to him was sufficient to demonstrate a triable question of fact onthat issue (see Snyder vSimon, 49 AD3d 954, 956-957 [2008]). Further, plaintiff's testimony that hewould not have chosen to have the surgery had he been properly informed of the risk ofsexual dysfunction is sufficient to raise a triable issue of fact as to whether a fullyinformed reasonable person would have elected for the surgery (see Schilling v Ellis Hosp., 75AD3d 1044, 1046 [2010]; Santilli v CHP, Inc., 274 AD2d 905, 907-908[2000]). Accordingly, Supreme Court also properly denied defendants' motion forsummary judgment on the lack of informed consent cause of action.
Lahtinen, J.P., Garry, Lynch and Clark, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote 1:A medical expertsupporting a nonmovant in the summary judgment context could not reasonably believethat any temporary anonymity would keep his or her identity from the public record. Anonmovant presumably seeks a trial, where expert witnesses' identities would berevealed.
Footnote 2:Although plaintiff'scounsel, at argument, made concessions that plaintiff did not plan on proceeding to trialon this cause of action and did not have an expert witness who would support the causeof action, we do not believe that the record provides sufficiently clear evidence thatplaintiff either requested or consented to a stipulation of discontinuance of that cause ofaction that would allow this Court to make such an order (see CPLR 3217 [b];see generally Shamley v ITT Corp., 67 NY2d 910, 911-912 [1986]).