| Matos v Khan |
| 2014 NY Slip Op 05520 [119 AD3d 909] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Jacqueline Matos, Respondent, v Feroze B.Khan, Appellant. |
McAloon & Freidman, P.C., New York, N.Y. (Gina Bernardi Di Folco andKenneth P. Starace of counsel), for appellant.
Sanocki Newman & Turret, LLP, New York, N.Y. (Joshua Fogel and David B.Turret of counsel), for respondent.
In an action to recover damages for medical malpractice, lack of informed consent,and wrongful death, the defendant appeals, as limited by his brief, from so much of anorder of the Supreme Court, Kings County (Knipel, J.), dated May 10, 2012, as deniedthose branches of his motion which were for summary judgment dismissing the causes ofaction alleging medical malpractice and wrongful death.
Ordered that the order is affirmed insofar as appealed from, with costs.
In an action sounding in medical malpractice, a defendant moving for summaryjudgment must make a prima facie showing either that there was no departure fromaccepted medical practice, or that any departure was not a proximate cause of thepatient's injuries (see Makinen vTorelli, 106 AD3d 782, 783-784 [2013]; LeMaire v Kuncham, 102 AD3d 659, 659 [2013]; DiGeronimo v Fuchs, 101AD3d 933, 936 [2012]). Once a defendant has made such a showing, the burdenshifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant'sprima facie showing, but only as to those elements on which the defendant met the primafacie burden (see Makinen v Torelli, 106 AD3d at 784; LeMaire vKuncham, 102 AD3d at 660; Stukas v Streiter, 83 AD3d 18, 24-25, 30 [2011]).
Here, the defendant made a prima facie showing that he did not depart from goodand accepted medical practice through the submission of the deposition testimony of theparties, medical records, and the affirmation of his medical expert. The defendant'sexpert opined, based on the medical records and deposition testimony, inter alia, that, inlight of the absence of signs or symptoms indicative of deep vein thrombosis orpulmonary embolism, the defendant's actions in declining to order the continuation ofprophylactic anti-coagulation therapy after the decedent was discharged from the hospitalon June 22, 2009, were in accordance with good and accepted medical practice (see Shields v Kleiner, 93 AD3d710, 712 [2012]). However, the defendant failed to make an independent prima facieshowing that no claimed departure was a proximate cause of the decedent's injuries(see Makinen v Torelli, 106 AD3d at 784; Mehra v Nayak, 103 AD3d 857, 860 [2013]; Stukas vStreiter, 83 AD3d at 31). Thus, to defeat the defendant's motion for summaryjudgment with respect to the medical malpractice cause of action, the plaintiff was onlyrequired to raise a triable issue of fact as to whether the defendant departed from goodand accepted medical practice (see Makinen v [*2]Torelli, 106 AD3d at 784; Mehra v Nayak, 103AD3d at 860; Stukas v Streiter, 83 AD3d at 30).
Contrary to the defendant's contention, the plaintiff raised, through the affirmation ofher medical expert, a triable issue of fact as to whether the defendant departed from goodand accepted medical practice when, despite the symptoms the decedent allegedly wasexperiencing at an office visit on June 30, 2009, the defendant failed to diagnose herwith deep vein thrombosis, failed to properly treat that condition, and failed to takeappropriate steps to prevent her from developing pulmonary embolism as a result of thatcondition (see Poter vAdams, 104 AD3d 925, 926 [2013]). Additionally, because the cause of actionalleging wrongful death was premised on the defendant's alleged medical malpractice,the same conclusions apply as to this cause of action (see Ahmed v Pannone, 116 AD3d 802 [2014]).
Contrary to the defendant's contention, the relevant portions of the depositiontestimony of the decedent's boyfriend, upon which the plaintiff's expert relied, were nothearsay. The boyfriend's testimony concerning the decedent's complaints about pain wasnot hearsay, as it was not offered to prove the truth of the matter asserted therein (see Papa v Sarnataro, 17 AD3d430, 432 [2005]). Further, his testimony concerning, inter alia, the decedent'sshortness of breath and leg swelling was not hearsay, as it was based, at least in part, onhis personal observations (seeTaveras v City of New York, 108 AD3d 614, 616 [2013]).
Accordingly, the Supreme Court properly denied those branches of the defendant'smotion which were for summary judgment dismissing the causes of action allegingmedical malpractice and wrongful death. Dillon, J.P., Dickerson, Austin and Sgroi, JJ.,concur.