| Michel v Long Is. Jewish Med. Ctr. |
| 2015 NY Slip Op 01617 [125 AD3d 945] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| Ronald Michel, Appellant, v Long IslandJewish Medical Center et al., Respondents. |
The Berkman Law Office, LLC, Brooklyn, N.Y. (Robert J. Tolchin of counsel), forappellant.
Bartlett McDonough & Monaghan, LLP, Mineola, N.Y. (Robert G. Vizza ofcounsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court, QueensCounty (O'Donoghue, J.), dated January 22, 2013, as granted the defendants' motion forsummary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff's decedent was afflicted with metastatic rectal carcinoma which hadspread to various areas of her body, including her right elbow. On March 26, 2008,surgery was performed on that elbow at the defendant Long Island Jewish MedicalCenter (hereinafter the Medical Center). During the surgery, a large mass was discoveredwhich had replaced the entire lateral condyle of the humerus. The tumor was dissectedand the entire lateral half of the condyle was removed. A plate and screws were placed tofixate the distal humerus. Once the wound was closed, an immobilization splint wasplaced over the decedent's arm.
After surgery, the decedent's pain was managed with pain medication and her armremained in a cast and a sling. On March 30, 2008, at approximately 10:00 p.m., whilethe decedent was still a patient at the Medical Center, she suffered renewed pain in herright arm after she had been cleaned by the Medical Center's nursing staff. Her conditionwas diagnosed as a dislocated elbow, and she was treated with pain medication and wasfitted for an elbow brace. On May 5, 2008, the decedent was discharged to arehabilitation facility. On November 27, 2008, the decedent died. The plaintiffcommenced this action, inter alia, to recover damages for medical malpractice, and thedefendants moved for summary judgment dismissing the complaint. The Supreme Courtgranted the defendants' motion, and the plaintiff appeals. We affirm.
A defendant seeking summary judgment in a medical malpractice action bears theinitial burden of establishing, prima facie, either that there was no departure from theapplicable standard of care, or that any alleged departure did not proximately cause theplaintiff's injuries. In opposition, the plaintiff must demonstrate the existence of a triableissue of fact as to the elements with respect to which the defendant has met its initialburden (see DeLaurentis vOrange Regional [*2]Med. Ctr.-Horton Campus, 117AD3d 774, 775 [2014]; Rivers v Birnbaum, 102 AD3d 26, 43 [2012]).
Here, the defendants established their prima facie entitlement to judgment as a matterof law dismissing the complaint by submitting evidence demonstrating that they did notdepart from the applicable standard of care, and that any alleged departure was not aproximate cause of the decedent's alleged injury. In support of their motion, thedefendants submitted, inter alia, the affirmation of a board-certified orthopedic surgeon,who opined, with "a reasonable degree of medical certainty," that "the dislocation of thedecedent's elbow was not caused by any act of negligence or malpractice on the part ofthe hospital staff." He further stated that the elbow was unstable after surgery, owing tobone destruction caused by cancer. Therefore, the expert opined, "dislocation of theelbow was essentially unavoidable" and "not unexpected," and could have been causedby the decedent's own movements.
In opposition, the plaintiff submitted, inter alia, the affirmation of a physicianboard-certified in physical medicine and rehabilitation. The plaintiff's expertacknowledged that "the surgery performed . . . was clearly indicated forpalliative purposes and was performed within the standard of care." However, the expertstated, the defendants' departures occurred in the decedent's post-operative care. Theplaintiff's expert claimed that the defendants deviated from the standard of care by failingto provide written notice in the decedent's chart that the decedent's right elbow couldsuffer injury if she were not bathed in a careful manner, and by failing to provideinstructions to avoid applying pressure to the right arm. The expert also stated that sincethe decedent's "arm was immobilized by a bandage and a sling post operatively," a"conclusion that the dislocation would have happened through the patient's ownmovements is speculative."
The plaintiff's expert affidavit was insufficient to raise a triable issue of fact, as theexpert did not rebut the defendants' prima facie showing with respect to the elements ofdeparture and proximate cause. Rather, the plaintiff's expert impermissibly attempted toassert a new theory of liability, based on the defendants' alleged failure to provide writtennotice of the condition of the decedent's elbow in her chart, which was not alleged in thecomplaint or bill of particulars (see generally Alvarez v Prospect Hosp., 68 NY2d320, 327 [1986]; Stukas vStreiter, 83 AD3d 18, 23-24 [2011]). In any event, the alleged failure to providewritten notice of the nature of the decedent's condition in her chart did not raise a triableissue of fact as to the defendants' alleged negligence, since the nature of the condition ofthe decedent's elbow was apparent from the fact that her arm was bandaged and in a sling(see Vereczkey v Sheik, 57AD3d 523, 526 [2008]).
The plaintiff's remaining contention is without merit.
Accordingly, the Supreme Court properly granted the defendants' motion forsummary judgment dismissing the complaint. Rivera, J.P., Miller, Hinds-Radix andDuffy, JJ., concur.