| Conto v Lynch |
| 2014 NY Slip Op 08094 [122 AD3d 1136] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| Maria D. Conto et al., Respondents, v Steven M. Lynchet al., Appellants, et al., Defendants. |
Thorn Gershon Tymann & Bonanni, LLP, Albany (Mia D. VanAuken ofcounsel), for appellants.
Keith Schockmel, Albany, for respondents.
Devine, J. Appeal from an order of the Supreme Court (Clark, J.), entered June 3,2013 in Schenectady County, which denied a motion by defendants Steven M. Lynch andthe Plastic Surgery Group, LLP for summary judgment dismissing the complaint againstthem.
Defendant Steven M. Lynch performed a bilateral breast reduction and lift procedureand bilateral brachioplasty on plaintiff Maria D. Conto (hereinafter plaintiff) and, withindays of the procedure, plaintiff complained of complications to her left breast, including,but not limited to, severe blistering and skin loss to the areola. Less than a year later,Lynch replaced the saline implant from plaintiff's left breast and, during the sameprocedure, performed a "saddlebag" procedure in which excess tissue was excised fromplaintiff's thighs. However, due to plaintiff's continuing pain and other complications inher left breast, Lynch removed the implant. Moreover, plaintiff complained that the thighexcision had disfigured the appearance of her thighs and, although Lynch scheduled anadditional corrective procedure, plaintiff did not return to him for further medicaltreatment. Plaintiff and her husband, derivatively, commenced this action allegingmedical malpractice and lack of informed consent against, among others, Lynch anddefendant Plastic Surgery Group, LLP (hereinafter collectively referred to as defendants),the partnership with which Lynch was professionally affiliated. Defendants moved forsummary judgment dismissing the complaint against them and Supreme Court denied themotion in its entirety. Defendants now appeal.
Defendants had the initial burden of demonstrating that "there was no departure fromaccepted standards of practice or that plaintiff was not injured thereby" (Derusha v Sellig, 92 AD3d1193, 1193 [2012] [internal quotation marks and citations omitted]; see Maki v Bassett Healthcare,85 AD3d 1366, 1368 [2011], appeal dismissed 17 NY3d 855 [2011], lvdismissed and denied 18 NY3d 870 [2012]). In his detailed affidavit, Lynch averredthat, within a reasonable degree of medical certainty, the preoperative consultations withplaintiff, the surgical procedures performed on plaintiff and the follow-up care renderedto her fully comported with acceptable standards of medical care. Specifically, Lynchaverred that he fully explained to plaintiff the inherent risks of the procedures that heperformed and obtained signed informed consent documents prior to each surgery, whiledenying that he pressured plaintiff to undergo any particular surgical procedure. As to theinitial breast surgery, Lynch maintained that, within a reasonable degree of medicalcertainty, he performed the procedure competently and denied that the resulting infectionwas related to the implants. He further asserted that plaintiff was given appropriatepostoperative care and treatment. Likewise, Lynch indicated that the manner in which theexcision was performed on plaintiff's thighs comported with accepted standards ofmedical care and, further, that plaintiff was aware that she might need additionalliposuction for "further contouring," but she ultimately failed to return to his office forsuch treatment.
We find, as Supreme Court did, that defendants' evidence established their primafacie entitlement to judgment as a matter of law, thereby shifting the burden to plaintiffs" 'to establish, through competent expert medical opinion evidence, that thereexists a triable issue of fact as to whether there was a deviation from the acceptedstandard of care' " that can be causally connected to the injuries sustained byplaintiff (Friedland v VassarBros. Med. Ctr., 119 AD3d 1183, 1187 [2014], quoting Helfer v Chapin, 96 AD3d1270, 1272 [2012]; seeMartino v Miller, 97 AD3d 1009, 1010 [2012]). Defendants now insist that thecomplaint should have been dismissed as plaintiffs' medical expert failed to addresscertain claims raised in the complaint and, in addition, that the expert's opinion regardingdefendants' purported deviations from accepted standards of medical care was whollyspeculative and failed to demonstrate that defendants' allegedly negligent treatment ofplaintiff was the proximate cause of her injuries.
Plaintiffs' expert, Richard Marfuggi, a board-certified plastic surgeon, opined in hisaffidavit that, with regard to plaintiff's initial breast surgery, Lynch's choice to combinethe breast reduction procedure with the insertion of breast implants did not comport withgenerally accepted medical standards and that such combined procedure is reserved for"the rarest of cases." Moreover, he stated that his review of all of the record evidence,including plaintiff's medical records and defendants' submissions, did not reveal any"functional reason" to simultaneously perform the discrete procedures and, further, thatthe likelihood of postoperative complications—such as the infection that occurredfollowing plaintiff's breast surgery—is heightened where, as here, an implant isinserted during surgery. As to the thigh excision procedure, Marfuggi opined that suchsurgical approach deviated from generally accepted medical standards and that plaintiffwas a candidate for "liposuction to reduce volume followed, as needed, by secondaryskin contouring." He further averred that the deformed appearance of plaintiff's thighswas a "predictable result" of Lynch's use of the tissue excision. Although Marfuggi'saffidavit was particularly succinct on the causation element, it was sufficient to raise amaterial issue of fact regarding whether Lynch's treatment of plaintiff deviated fromrecognized standards of care, thereby causing her injuries (see Longtemps v Oliva, 110AD3d 1316, 1318 [2013]; Plourd v Sidoti, 69 AD3d 1038, 1039 [2010]; Carter v Tana, 68 AD3d1577, 1580 [2009]). Viewing the evidence in a light favorable to plaintiffs, wedetermine that the denial of defendants' summary judgment motion as to plaintiffs'medical malpractice claims was proper (see Hauss v Community Care Physicians, P.C., 119 AD3d1037, 1039 [2014]; Doucettv Strominger, 112 AD3d 1030, 1033 [2013]; Dugan v Troy Pediatrics, LLP,105 AD3d 1188, 1192 [2013]).
We reach the same conclusion regarding plaintiffs' lack of informed consent cause ofaction. The proof in the record adduced by defendants meets their initial burden ofdemonstrating that they fully disclosed "the risks, benefits and alternatives" of plaintiff'ssurgeries that would have been explored by a reasonable plastic surgeon under the samecircumstances, or that a similarly situated patient, "fully informed, would have elected. . . to undergo the procedure or treatment" (Rivera v Albany Med. Ctr.Hosp., 119 AD3d 1135, 1138 [2014] [internal quotation marks and citationsomitted]; see Schilling v EllisHosp., 75 AD3d 1044, 1045 [2010]). Plaintiff, however, vehemently denies thatLynch warned her of the possible complications that she experienced, averring that,despite voicing her opposition to breast implants, Lynch "was insistent that implantswere necessary," ultimately compelling her to reluctantly agree to the procedure. Plaintiffindicates that, although she signed the consent forms that were given to her prior to theprocedures, Lynch failed to fully explain the risk of the complications that she sustainedand that, had she been made aware of the possibility that she would lose a portion of hernipple, she would not have consented to the initial breast procedure. As for the thighexcision, plaintiff expressly refutes the entry that Lynch made in her medical recordsstating that she and Lynch had "discussed fully" the potential consequences of thesurgery and insists that Lynch told her that excision was the "only correct procedure" topursue. Marfuggi, meanwhile, opined that a person in plaintiff's position who was fullyinformed of the potential consequences of the thigh excision performed by Lynch wouldnot have gone forward with it and, further, that Lynch's conduct conflicted with generallyaccepted standards of medical care, which require the surgeon to provide the patient with"all relevant alternatives." Finally, Marfuggi concluded that Lynch's failure to ensure thatplaintiff's consent to the surgeries was truly informed was a dereliction of applicableprofessional standards of care. As plaintiffs' evidence raised triable issues of fact as towhether there was a lack of informed consent to the procedures described herein (seeRivera v Albany Med. Ctr. Hosp., 119 AD3d at 1138), the denial of defendants'motion for summary judgment was appropriate.
Stein, J.P., McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.