| Bhim v Dourmashkin |
| 2014 NY Slip Op 08799 [123 AD3d 862] |
| December 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Jane Bhim et al., Respondents, v MichaelDourmashkin, M.D., et al., Defendants, and John Platz, M.D., et al.,Appellants. |
Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Daniel S. Ratner ofcounsel), for appellants Michelle N. Johnson and Donna Marchant.
Ronemus & Vilensky, New York, N.Y. (Rhonda Abrams Silverman of counsel),for respondents.
In an action, inter alia, to recover damages for medical malpractice, the defendantsMichelle N. Johnson and Donna Marchant appeal, as limited by their brief, from so muchof an order of the Supreme Court, Nassau County (Jaeger, J.), dated November 14, 2012,as denied that branch of their motion which was for summary judgment dismissing thecomplaint insofar as asserted against them, and the defendants John Platz and NorthShore University Hospital also appeal from the order.
Ordered that the appeals by the defendants John Platz and North Shore UniversityHospital are dismissed as abandoned, without costs or disbursements (see 22NYCRR 670.8 [c], [e]); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereofdenying those branches of the motion which were for summary judgment dismissing thecomplaint insofar as asserted against the defendant Michelle N. Johnson and dismissingthe cause of action alleging lack of informed consent insofar as asserted against thedefendant Donna Marchant, and substituting therefor a provision granting those branchesof the motion; as so modified, the order is affirmed insofar as appealed from by thedefendants Michelle N. Johnson and Donna Marchant, without costs ordisbursements.
On June 24, 2005, the plaintiff Jane Bhim (hereinafter the injured plaintiff)underwent a kidney stone lithotripsy procedure under general anesthesia at North ShoreUniversity Hospital. After the lithotripsy procedure, while in the recovery room, theinjured plaintiff developed shortness of breath, chest pain, and hypotension. Anelectrocardiogram was performed, and the results were normal. Testing indicated that theinjured plaintiff's hematocrit and hemoglobin were normal, and a hemorrhage was ruledout. However, a laboratory analysis of the injured plaintiff's cardiac enzymes indicatedthat she had an elevated level of troponin, indicating a cardiac event. In an effort [*2]to determine the cause of these symptoms, the injuredplaintiff's treating physician called for a cardiology consult. The injured plaintiff wasseen by the appellant Michelle N. Johnson, a cardiologist, who immediately sent her tothe cardiac catheterization lab. That afternoon, the appellant Donna Marchant, aninterventional cardiologist, performed a cardiac catheterization, placed an intra-aorticballoon pump (hereinafter IABP), and started the injured plaintiff on Heparin, ananticoagulant. Following the procedure, the injured plaintiff was admitted to thecoronary care unit.
The following day, the injured plaintiff began complaining of pain in her left flankand had gross hematuria (blood in the urine). That evening, the injured plaintiff'shematocrit and hemoglobin dropped to lower than normal. At 3:15 a.m. on June 26,2005, the injured plaintiff went into cardiac arrest and was resuscitated. The Heparin wasthereafter discontinued and the IABP removed, and at 4:29 a.m. an emergencyexploratory laparotomy was performed. After diffuse oozing was observed from thesurface of the injured plaintiff's left kidney, it was removed.
The injured plaintiff, and her husband suing derivatively, commenced this actionagainst Drs. Johnson and Marchant, among others, to recover damages, inter alia, formedical malpractice and lack of informed consent. Insofar as relevant here, the SupremeCourt denied that branch of the motion of Johnson and Marchant which was for summaryjudgment dismissing the complaint insofar as asserted against them.
A physician moving for summary judgment dismissing a cause of action to recoverdamages for medical malpractice must establish, prima facie, either that there was nodeparture from good and accepted medical practice or that any alleged departure was nota proximate cause of the plaintiff's injuries (see Faicco v Golub, 91 AD3d 817, 818 [2012]; Stukas v Streiter, 83 AD3d18, 24 [2011]). The burden shifts to the plaintiff to demonstrate the existence of atriable issue of fact only after the defendant physician meets the initial burden (see Savage v Quinn, 91 AD3d748, 750 [2012]), and only as to the elements on which the defendant met the primafacie burden (see Hayden vGordon, 91 AD3d 819, 821 [2012]; Stukas v Streiter, 83 AD3d at 24).General allegations that are conclusory and unsupported by competent evidence tendingto establish the essential elements of medical malpractice are insufficient to defeat adefendant's motion for summary judgment (see Savage v Quinn, 91 AD3d at 749;Salvia v St. Catherine of SiennaMed. Ctr., 84 AD3d 1053, 1054 [2011]; Ahmed v New York City Health & Hosps. Corp., 84 AD3d709, 711 [2011]).
Here, Johnson and Marchant established their prima facie entitlement to judgment asa matter of law dismissing the cause of action alleging medical malpractice insofar asasserted against them through the submission of their deposition testimony, the injuredplaintiff's hospital records, and the affirmation of a medical expert stating that Johnsonand Marchant did not deviate from the relevant standard of care in their treatment of theinjured plaintiff. In opposition, the plaintiffs' expert interventional cardiologist opinedthat, after the placement of the IABP and administration of Heparin intravenously,Johnson and Marchant departed from acceptable standards of care by failing to monitorthe injured plaintiff for bleeding, failing to timely discontinue the Heparin, and failing totimely treat the injured plaintiff's bleeding on June 25 and 26, 2005, and that thesedepartures were a substantial factor in bringing about the injured plaintiff's injuries. Theplaintiffs' submissions raised a triable issue of fact as to whether Marchant's treatment ofthe injured plaintiff departed from accepted standards of medical practice (see Guzzi v Gewirtz, 82 AD3d838 [2011]). However, they failed to raise a triable issue of fact as to whetherJohnson's treatment of the injured plaintiff departed from accepted standards of medicalcare, as Johnson did not perform the catheterization, place the IABP, or prescribeHeparin. She merely examined the injured plaintiff as a consulting cardiologist andreferred her to the catheterization lab. Therefore, the plaintiffs' submissions wereinsufficient to raise a triable issue of fact as to whether Johnson departed from good andaccepted practice (see Alvarez v Prospect Hosp., 68 NY2d 320, 323-325 [1986];Elias v Bash, 54 AD3d354, 357-358 [2008]; Aharonowicz v Huntington Hosp., 22 AD3d 615 [2005];Boone v North Shore Univ.Hosp. at Forest Hills, 12 AD3d 338, 339 [2004]; Yasin v Manhattan Eye,Ear & Throat Hosp., 254 AD2d 281 [1998]; Al Malki v Krieger, 213AD2d 331, 333-334 [1995]). Accordingly, the Supreme Court should have granted thatbranch of the subject motion which was for summary judgment dismissing the cause ofaction alleging medical malpractice insofar as asserted against Johnson.
[*3] The Supreme Court also should have granted thatbranch of the motion which was for summary judgment dismissing the cause of actionalleging lack of informed consent insofar as asserted against both Johnson and Marchant.The complaint generally alleged that these defendants failed to obtain the injuredplaintiff's informed consent for their "proposed course of treatment." In their bills ofparticulars and amended bills of particulars served in response to demands by Johnsonand Marchant, the plaintiffs alleged that "[h]ad the patient been informed of risks ofcourse of treatment, and alternatives, treatment course[ ] would have been refused" and"[a]lternative treatments include but are not limited to other methods of having kidneystones removed, doing nothing, and being referred to a competent urologist." Althoughthe plaintiffs' expert witness disclosure raised a new theory of liability, i.e., that Johnsonand Marchant did not properly obtain the injured plaintiff's informed consent to place theIABP and administer Heparin, in moving for summary judgment, Johnson and Marchantwere only required to address and rebut the specific allegations of malpractice set forth inthe plaintiffs' complaint and bills of particulars (see Wall v Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1045[2010]; Terranova vFinklea, 45 AD3d 572, 572 [2007]).
Johnson and Marchant established their prima facie entitlement to judgment as amatter of law dismissing the cause of action alleging lack of informed consent insofar asasserted against them by demonstrating that neither of them was a urologist or performedthe lithotripsy procedure on the injured plaintiff. In opposition, the plaintiffs failed torebut the prima facie showing of entitlement to judgment as a matter of law, as they didnot address that cause of action or specifically oppose that branch of the motion (seePublic Health Law § 2805-d; see also Deutsch v Chaglassian, 71 AD3d 718, 719-720[2010]; Schel v Roth, 242 AD2d 697 [1997]; Rebozo v Wilen, 41 AD3d 457, 459 [2007]).
We have not considered matter dehors the record referred to in the respondents' brief(see Aronov v Shimonov,105 AD3d 787, 789 [2013]; Tsikotis v Pioneer Bldg. Corp., 96 AD3d 936 [2012]; Poupis v Brown, 90 AD3d881, 883 [2011]). Dillon, J.P., Dickerson, Leventhal and Hall, JJ., concur.