| Bagley v Rochester Gen. Hosp. |
| 2015 NY Slip Op 00044 [124 AD3d 1272] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Gilbert Bagley et al., Appellant, v Rochester GeneralHospital et al., Respondents. |
Brown & Hutchinson, Rochester (Michael Cobbs of counsel), forplaintiff-appellant.
Hirsch & Tubiolo, P.C., Rochester (Bryan Kornfield of counsel), fordefendants-respondents Edward Zinkin, M.D. and Martine Backenstoss, M.D.
Harris Beach PLLC, Pittsford (Svetlana K. Ivy of counsel), fordefendants-respondents Rochester General Hospital, Stephen Silver, M.D. and PatrickMartin M.D.
Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo,J.), entered May 31, 2013. The order granted the motions of defendants for summaryjudgment and dismissed the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: In this action alleging, inter alia, medical malpractice and wrongfuldeath, plaintiff appeals from an order granting defendants' motions for summaryjudgment dismissing the complaint. We affirm. Plaintiff commenced this action seekingdamages for the death of his wife (decedent) while she was a patient at defendantRochester General Hospital (RGH). Decedent presented at RGH's renal dialysis unit withcomplaints of constipation, lower left quadrant abdominal pain, and difficulty related toher home dialysis treatment of her end-stage diabetic renal disease. Following laboratorytests and various imaging studies, decedent was admitted to the emergency departmentwith a diagnosis of bacterial peritonitis related to her status as a peritoneal dialysispatient. The following day, decedent was evaluated as stable but her condition quicklyworsened, she became abruptly hypotensive and unresponsive, and died shortlythereafter. The immediate cause of death was cardiac arrest. Postmortem examinationrevealed that decedent's medical condition at the time of her death included, inter alia,ruptured acute appendicitis, pelvic abscesses, and diffuse mild acute peritonitis. Plaintiffcontends that defendants failed to timely and adequately diagnose and treat decedent'sruptured acute appendicitis, and that defendants misdiagnosed decedent's condition asperitonitis.
Defendant Stephen Silver, M.D., was the physician primarily responsible for treatingdecedent's end-stage diabetic renal disease. Defendant Patrick Martin, M.D., was at allrelevant times the attending emergency medicine physician involved in assessing andtreating decedent's symptoms and complaints in the RGH emergency department. Theinvolvement in decedent's care of defendant Edward Zinkin, M.D., was limited toreviewing a pelvic/abdominal CT scan in his capacity as an attending radiologist at RGH.The CT scan was ordered by Dr. Martin and [*2]originally interpreted and reported by a resident physicianat RGH. The involvement in decedent's care of defendant Martine Backenstoss, M.D.,was limited to reviewing certain X ray films of decedent's kidneys, ureter, and bladder inher capacity as an attending radiologist at RGH.
It is well settled that, on a motion for summary judgment, a defendant in a medicalmalpractice action bears the initial burden of establishing either that there was nodeviation or departure from the applicable standard of care or that any alleged departuredid not proximately cause the plaintiff's injuries (see Swanson v Raju, 95 AD3d 1105, 1106 [2012]).Importantly, not every instance of failed treatment or diagnosis may be attributed to ahospital or physician's failure to exercise due care (see Nestorowich v Ricotta, 97NY2d 393, 398 [2002]; Schrempf v State of New York, 66 NY2d 289, 295[1985]). Contrary to plaintiff's contention, the deposition testimony, affidavits, andexpert affidavits submitted by the physicians in support of their motions "established thatthey exercised due care in treating plaintiff's decedent" (Moticik v Sisters Healthcare,19 AD3d 1052, 1052-1053 [2005]), and the physicians thus established theirentitlement to judgment as a matter of law (see Carthon v Buffalo Gen. Hosp. Deaconess Skilled NursingFacility Div., 83 AD3d 1404, 1405 [2011]; Selmensberger v KaleidaHealth, 45 AD3d 1435, 1435-1436 [2007]; see generally Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]). "The burden then shifted to plaintiff[ ] toraise triable issues of fact by submitting a physician's affidavit both attesting to adeparture from accepted practice and containing the attesting [physician's] opinion thatthe defendant[s'] omissions or departures were a competent producing cause of theinjury" (O'Shea v Buffalo Med.Group, P.C., 64 AD3d 1140, 1141 [2009], appeal dismissed 13 NY3d834 [2009] [internal quotation marks omitted]). It is well settled that "[g]eneralallegations of medical malpractice, merely conclusory and unsupported by competentevidence tending to establish the essential elements of medical malpractice, areinsufficient to defeat [a] defendant physician's summary judgment motion" (Alvarez vProspect Hosp., 68 NY2d 320, 325 [1986]). Thus, "[w]here the [plaintiff's] expert'sultimate assertions are speculative or unsupported by any evidentiary foundation,. . . [his or her] opinion should be given no probative force and isinsufficient to withstand summary judgment" (Diaz v New York DowntownHosp., 99 NY2d 542, 544 [2002]).
We agree with the physicians that the affidavit of plaintiff's expert in internalmedicine and cardiology is insufficient to defeat their motions inasmuch as it is vague,conclusory, speculative, and unsupported by the medical evidence in the record before us(see Wilk v James, 108AD3d 1140, 1143 [2013]; DiGeronimo v Fuchs, 101 AD3d 933, 936-937 [2012]).The affidavit of plaintiff's radiology expert was likewise "conclusory, speculative andwithout basis in the record" (DiGeronimo, 101 AD3d at 936). Thus, plaintifffailed to raise a triable issue of fact, and Supreme Court properly granted the physicians'motions seeking summary judgment dismissing the medical malpractice and wrongfuldeath causes of action insofar as asserted against each of them.
In light of our determination, there is no viable cause of action against any individualphysician to serve as a predicate for imposing vicarious liability on RGH under thetheory of respondeat superior or ostensible agency (see Magriz v St. Barnabas Hosp., 43 AD3d 331, 332-333[2007], lv denied 10 NY3d 790 [2008]; Banks v United Hosp., 275 AD2d623, 624 [2000]), and thus the court also properly granted RGH's motion. Finally, wereject plaintiff's contention that the court erred in dismissing the cause of action fornegligence. While the office practices of hospitals, physician medical groups, and theirstaff members may be embraced by the ordinary negligence standard (see Yaniv vTaub, 256 AD2d 273, 274 [1998]), we conclude that the challenged conduct at issue,including the alleged lack of consultation between the medical providers aboutdecedent's chronic underlying conditions, "bears a substantial relationship to therendition of medical treatment by a licensed physician," and the court thus properlydetermined that the cause of action alleged medical malpractice, not ordinary negligence(Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996], quoting Bleiler vBodnar, 65 NY2d 65, 72 [1985]; see generally Doe v Lai-Yet Lam, 268AD2d 206, 206 [2000]). Present—Scudder, P.J., Smith, Peradotto, Carni andSconiers, JJ.