| Brinkley v Nassau Health Care Corp. |
| 2014 NY Slip Op 06166 [120 AD3d 1287] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Krista Brinkley, Appellant, v Nassau HealthCare Corporation et al., Respondents. |
Bauman & Kunkis, P.C. (Mischel & Horn, P.C., New York, N.Y. [Scott T.Horn], of counsel), for appellant.
Bartlett, McDonough, Bastone & Monaghan, LLP, Mineola, N.Y. (Robert G.Vizza and Joseph M. O'Connor of counsel), for respondents Nassau Health CareCorporation, Nassau University Medical Center, Lambros Angus, Sasha Sotirovic, TariqKelker, Yuriy Zhurov, and Maria Spizzirri.
Bower Law P.C., Uniondale, N.Y. (Douglas B. Stebbins of counsel), for respondentGood Samaritan Hospital Medical Center.
In an action to recover damages, inter alia, for medical malpractice, the plaintiffappeals, as limited by her brief, from so much of an order of the Supreme Court, NassauCounty (Woodard, J.), entered April 9, 2012, as granted that branch of the motion of thedefendants Nassau Health Care Corporation, Nassau University Medical Center,Lambros Angus, Sasha Sotirovic, Tariq Kelker, Yuriy Zhurov, and Maria Spizzirri whichwas for summary judgment dismissing the medical malpractice cause of action insofar asasserted against Nassau University Medical Center, and that branch of the separatemotion of the defendant Good Samaritan Hospital Medical Center which was forsummary judgment dismissing the medical malpractice cause of action insofar as assertedagainst it.
Ordered that the order is affirmed insofar as appealed from, with one bill of costspayable to the respondents appearing separately and filing separate briefs.
On July 23, 2008, the plaintiff underwent bariatric surgery performed by thedefendant physician Lambros Angus at the defendant Nassau University Medical Center(hereinafter NUMC). She was discharged from NUMC on July 28, 2008. At 11:05 a.m.on the following day, she was brought by ambulance to the emergency room at thedefendant Good Samaritan Hospital Medical Center (hereinafter Good Samaritan),complaining of abdominal pain. A CT scan was ordered, and the plaintiff was examinedby an attending physician at Good Samaritan. Before the results of the CT scan cameback, an attending surgeon recommended that the plaintiff be transferred back to Angusat NUMC. Angus was consulted about a suspected gastric leak. Thereafter, the plaintiffwas eventually transferred from Good Samaritan to NUMC after spending approximatelyeight hours at Good Samaritan.
Once the plaintiff was transferred back to NUMC, a CT scan was performed. Theresults of the test indicated that an anastomotic leak might be present. Angus informedthe plaintiff [*2]of these findings, and recommended anexploratory laparotomy. The plaintiff did not want to undergo another surgical procedureunless Angus knew definitively that a leak had occurred in her abdomen. The presence ofan anastomotic leak was confirmed when the results of scans of the plaintiff's uppergastrointestinal tract, commonly known as upper GI series, were received on July 30 at2:05 a.m. Based on the results of the upper GI series, surgery to repair the leak wasperformed approximately six hours later.
The plaintiff commenced this action against NUMC, Nassau Health CareCorporation, Angus, and physicians Sasha Sotirovic, Tariq Kelker, Yuriy Zhurov, andMaria Spizzirri (hereinafter collectively the NUMC defendants), as well as GoodSamaritan, to recover damages for, inter alia, medical malpractice. Good Samaritanmoved for summary judgment dismissing the complaint insofar as asserted against it, andthe NUMC defendants separately moved for summary judgment dismissing thecomplaint insofar as asserted against them. In an order entered April 9, 2012, theSupreme Court granted both motions in their entirety.
The plaintiff appeals, as limited by her brief, only from so much of the order asawarded summary judgment to NUMC and Good Samaritan dismissing the medicalmalpractice causes of action insofar as asserted against them.
On a motion for summary judgment dismissing a medical malpractice cause ofaction, a defendant has the prima facie burden of establishing that there was no departurefrom good and accepted medical practice, or, if there was a departure, the departure wasnot the proximate cause of the alleged injuries (see Fritz v Burman, 107 AD3d 936, 940 [2013]; Makinen v Torelli, 106 AD3d782, 783-784 [2013]; Shehebar v Boro Park Obstetrics & Gynecology, P.C., 106AD3d 715, 715 [2013]). Once the defendant has made such a showing, the burdenshifts to the plaintiff to submit evidentiary facts or materials to rebut the prima facieshowing made by the defendant, so as to demonstrate the existence of a triable issue offact (see Fritz v Burman, 107 AD3d at 940; Lingfei Sun v City of New York, 99 AD3d 673, 675[2012]; Bezerman v Bailine,95 AD3d 1153, 1154 [2012]). General allegations of medical malpractice, merelyconclusory and unsupported by competent evidence tending to establish the essentialelements of such a claim, are insufficient to defeat a summary judgment motion (see Barrett v Hudson Val.Cardiovascular Assoc., P.C., 91 AD3d 691, 692 [2012]; Flanagan v Catskill Regional Med.Ctr., 65 AD3d 563, 565 [2009]).
NUMC established its prima facie entitlement to judgment as a matter of law withrespect to the medical malpractice cause of action asserted against it by submitting, interalia, a detailed expert affirmation, based upon the medical records, which demonstratedthat NUMC did not depart from good and accepted medical practice in its treatment ofthe plaintiff, and that, in any event, any alleged departures were not a proximate cause ofthe plaintiff's injuries (seeRivers v Birnbaum, 102 AD3d 26, 43 [2012]; Lahara v Auteri, 97 AD3d799, 799 [2012]). NUMC's expert, Dr. Thomas Magnuson, a board-certifiedsurgeon, explained that leakage can occur spontaneously, is a known risk of the subjectprocedure of which the plaintiff was fully aware, and occurs in approximately 1% ofpatients. He opined that the plaintiff was stable when discharged from NUMC on July28, 2008, at which time there was no evidence of any leakage from the anastomosis, orany other indication of an intra-abdominal complication, and that she exhibited no signs,symptoms, or complications from the surgery. He also opined that the course of treatmentand outcome for the plaintiff would not have been different had she remained at NUMCrather than being discharged on July 28, 2008, the day before the leak occurred on themorning of July 29, 2008. Further, he opined that NUMC promptly diagnosed andtreated the leak, that performing surgery without first stabilizing the plaintiff andresuscitating her with fluids and antibiotics would have placed her at an unreasonablerisk of complications from surgery, including, but not limited to, death, and that theoutcome for the plaintiff would not have been different if the surgery had beenperformed earlier. He thus concluded that the care and treatment rendered by NUMC andthe individual physicians employed by NUMC was in accordance with the acceptedstandard of medical care, and was not a proximate cause of any of the plaintiff's allegedinjuries (see Barrett v Hudson Val. Cardiovascular Assoc., P.C., 91 AD3d at692).
In opposition to the prima facie showing made by NUMC, the plaintiff failed to raise[*3]a triable issue of fact. The affirmation of theplaintiff's expert, Dr. Peter Wilk, was conclusory and speculative, and failed to addressspecific assertions made by Dr. Magnuson, including those regarding proximate cause(see Forrest v Tierney, 91AD3d 707, 709 [2012]; Graziano v Cooling, 79 AD3d 803, 805 [2010]; Rebozo v Wilen, 41 AD3d457 [2007]).
Good Samaritan established its prima facie entitlement to judgment as a matter oflaw with respect to the medical malpractice cause of action asserted against it bysubmitting transcripts of the deposition testimony of the medical personnel who treatedthe plaintiff, and an affirmation from its own expert witness, Dr. Robert H. Leviton, whois board-certified in emergency medicine and family medicine. The evidence submittedby Good Samaritan demonstrated that the care provided by it to the plaintiff wasreasonable and within the accepted standard of care, and that its treatment of the plaintiffdid not proximately cause the plaintiff any injury (see Matos v Schwartz, 104 AD3d 650, 651-652 [2013];Lahara v Auteri, 97 AD3d at 799). Dr. Leviton's conclusions were supported bythe evidence demonstrating that the plaintiff was hemodynamically stable when she wastransferred, without incident, from Good Samaritan to NUMC.
In opposition to Good Samaritan's showing, the plaintiff failed to raise a triable issueof fact. Dr. Wilk's opinion that the delay in surgical intervention was caused by thetreatment she received at Good Samaritan, and that such delay caused complications,thereby injuring the plaintiff, was conclusory, speculative, and without basis in the record(see Flanagan v CatskillRegional Med. Ctr., 65 AD3d 563, 566 [2009]; Rebozo v Wilen, 41AD3d at 459).
Accordingly, the Supreme Court properly granted that branch of the motion of theNUMC defendants which was for summary judgment dismissing the medical malpracticecause of action insofar as asserted against NUMC and that branch of the separate motionof Good Samaritan which was for summary judgment dismissing the medical malpracticecause of action insofar as asserted against it. Balkin, J.P., Austin, Sgroi and Cohen, JJ.,concur. [Prior Case History: 2012 NY Slip Op 30961(U).]