| Raucci v Shinbrot |
| 2015 NY Slip Op 02952 [127 AD3d 839] |
| April 8, 2015 |
| Appellate Division, Second Department |
[*1]
| Florence Raucci et al., Respondents, v RichardG. Shinbrot, D.O., et al., Appellants, et al., Defendants. |
Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y.(Scott G. Christesen and Michelle C. Acosta of counsel), for appellants Richard G.Shinbrot and Richard G. Shinbrot, D.O., P.C.
Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Amy E. Bedell of counsel), forappellants Matthew J. McKinley and ProHealthcare Association, LLP.
Edelman, Krasin & Jaye, PLLC, Carle Place, N.Y. (Sal A. Spano of counsel andAvelino Nitkewicz, LLP [Andrew P. Nitkewicz], former of counsel on the brief), forrespondents.
In an action to recover damages for medical malpractice and lack of informedconsent, etc., the defendants Richard G. Shinbrot and Richard G. Shinbrot, D.O., P.C.,appeal, and the defendants Matthew J. McKinley and ProHealthcare Association, LLP,separately appeal, as limited by their respective briefs, from so much of (1) an order ofthe Supreme Court, Nassau County (Cozzens, Jr., J.), dated October 12, 2012, as deniedtheir separate motions for summary judgment dismissing the complaint insofar asasserted against each of them, and (2) an order of the same court, entered July 5, 2013,as, upon renewal and reargument, adhered to its original determination.
Ordered that the appeals from the order dated October 12, 2012, are dismissed, asthat order was superseded by the order entered July 5, 2013, made upon renewal andreargument; and it is further,
Ordered that the order entered July 5, 2013, is reversed insofar as appealed from, onthe law, with one bill of costs, upon renewal and reargument, the determination in theorder dated October 12, 2012, denying the separate motions of the defendants Richard G.Shinbrot and Richard G. Shinbrot, D.O., P.C., and the defendants Matthew J. McKinleyand ProHealthcare Association, LLP, for summary judgment dismissing the complaintinsofar as asserted against each of them is vacated, and those separate motions arethereupon granted.
Medical malpractice actions are governed by a 2
[*2] In support of their motion for summary judgmentdismissing the complaint insofar as asserted against them, the defendants Richard G.Shinbrot and Richard G. Shinbrot, D.O., P.C. (hereinafter together the Shinbrotdefendants), established, prima facie, that so much of the plaintiffs' medical malpracticecause of action insofar as asserted against them as was premised on allegations ofmalpractice occurring prior to March 28, 2007, was time-barred. The Shinbrotdefendants performed a laparascopic cholecystectomy on the plaintiff Florence Raucci(hereinafter the injured plaintiff) on December 2, 2005. The Shinbrot defendantsacknowledged that they continued to provide related postoperative care to the injuredplaintiff, but demonstrated that they did so only through March 28, 2006. The plaintiffscommenced this action on September 28, 2009. Thus, the Shinbrot defendantsestablished, prima facie, that so much of the plaintiffs' medical malpractice cause ofaction insofar as asserted against them as was premised on acts or omissions occurringprior to March 28, 2007, or 2
Upon renewal and reargument, in opposition to the Shinbrot defendants' motion, theplaintiffs submitted evidence that Shinbrot referred the injured plaintiff to the defendantphysician Matthew J. McKinley in late March 2006, and they submitted copies of certainletters from McKinley to Shinbrot dated April 5, 2006, and May 22, 2006, respectively,in which McKinley explained his evaluation of the injured plaintiff to Shinbrot. Theseletters were insufficient to raise a triable issue of fact as to whether the injured plaintiffcontinued to seek an actual course of treatment from the Shinbrot defendants beyondMarch 28, 2006, let alone subject herself to such a course of treatment by affirmative andongoing conduct such as surgery, therapy, or the prescription of medications (see Schwelnus v Urological Assoc.of L.I., P.C., 94 AD3d 971, 973 [2012]; Gomez v Katz, 61 AD3d 108, 111-112 [2009]). A merecontinuing relationship between physician and patient does not qualify as a course oftreatment for purposes of the statutory toll (see Nykorchuck v Henriques, 78NY2d at 259; McDermott v Torre, 56 NY2d 399, 405 [1982]). Furthermore, themedical condition giving rise to the injured plaintiff's proffered reason for submitting tothe initial procedure performed by the Shinbrot defendants on December 2, 2005, wasdifferent from the condition that gave rise to the reason given for calling in Shinbrot for aconsultation when she was hospitalized in May 2007 (see generally Schwelnus vUrological Assoc. of L.I., P.C., 94 AD3d at 973). Thus, in opposition to the Shinbrotdefendants' prima facie showing, the plaintiffs failed to raise a triable issue of fact as towhether the continuous treatment doctrine tolled the commencement of the limitationsperiod beyond March 28, 2006. Accordingly, the Supreme Court, upon renewal andreargument, should have granted that branch of the Shinbrot defendants' motion whichwas for summary judgment dismissing, as time-barred, so much of the medicalmalpractice cause of action insofar as asserted against them as was premised on allegedmalpractice occurring prior to March 28, 2007, or 2
With respect to the substance of the plaintiffs' causes of action, the requisite elementsof proof in a medical malpractice action are a deviation or departure from acceptedcommunity standards of medical practice, and evidence that such deviation or departurewas a proximate cause of injury or damage (see Lau v Wan, 93 AD3d 763, 765 [2012]; Castro v New York City Health& Hosps. Corp., 74 AD3d 1005, 1006 [2010]; Deutsch v Chaglassian, 71AD3d 718, 719 [2010]; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842[2008]). "A physician moving for summary judgment dismissing a cause of action torecover damages for medical malpractice must establish, prima facie, either that therewas no departure from good and accepted medical practice or that any alleged departurewas not a proximate cause of the plaintiff's injuries" (Bhim v Dourmashkin, 123 AD3d 862, 863-864 [2014]; see Faicco v Golub, 91 AD3d817, 818 [2012]; Stukas vStreiter, 83 AD3d 18, 24 [2011]). "The burden shifts to the plaintiff todemonstrate the existence of a triable issue of fact only after the defendant physicianmeets the initial burden, and only as to the elements on which the defendant met theprima facie burden" (Bhim v Dourmashkin, 123 AD3d at 864 [citation omitted];see Hayden v Gordon, 91AD3d 819, 821 [2012]; Stukas v Streiter, 83 AD3d at 24).
Although the applicable limitations period did not bar that portion of the medicalmalpractice cause of action asserted against the Shinbrot defendants which arose fromacts occurring on or after March 28, 2007, upon renewal and reargument, the Shinbrotdefendants established their prima facie entitlement to judgment as a matter of lawdismissing that portion of the cause of action by submitting an expert affirmationdemonstrating that they did not depart from good and accepted [*3]medical practice in their treatment of the injured plaintiff,and that, in any event, their treatment of the injured plaintiff was not a proximate causeof her injuries (see McKenzie vClarke, 77 AD3d 637, 638 [2010]; Sheenan-Conrades v Winifred Masterson Burke RehabilitationHosp., 51 AD3d 769, 770 [2008]; Rebozo v Wilen, 41 AD3d 457, 459 [2007]). Similarly,McKinley and ProHealthcare Associates, LLP, incorrectly sued herein as ProHealthcareAssociation, LLP (hereinafter together the ProHealthcare defendants), also establishedtheir prima facie entitlement to judgment as a matter of law dismissing the medicalmalpractice cause of action insofar as asserted against them by submitting an expertaffirmation of a physician specializing in internal medicine and gastroenterology, whichdemonstrated that they did not depart from good and accepted medical practice in theirtreatment of the injured plaintiff, and that, in any event, their treatment was not aproximate cause of her injuries (see McKenzie v Clarke, 77 AD3d at 638;Sheenan-Conrades v Winifred Masterson Burke Rehabilitation Hosp., 51 AD3dat 770; Rebozo v Wilen, 41 AD3d at 459).
In opposition to these showings, the plaintiffs failed to raise a triable issue of fact."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" (Bhim v Dourmashkin, 123 AD3d at864; see Savage v Quinn,91 AD3d 748, 749 [2012]). Here, the redacted affirmation of an expert surgeon andcritical care specialist submitted by the plaintiffs was conclusory, speculative, andwithout evidentiary support in the record and, therefore, was insufficient to raise a triableissue of fact (see Duvidovich vGeorge, 122 AD3d 666, 667 [2014]; Mitchell v Grace Plaza of Great Neck, Inc., 115 AD3d 819,820 [2014]; Khosrova vWestermann, 109 AD3d 965, 967 [2013]). Accordingly, upon renewal andreargument, the Supreme Court should have granted that branch of the Shinbrotdefendants' motion which was for summary judgment dismissing so much of the medicalmalpractice cause of action insofar as asserted against them as was premised on acts oromissions occurring on or after March 28, 2007, and that branch of the ProHealthcaredefendants' motion which was for summary judgment dismissing the medical malpracticecause of action insofar as asserted against them.
With regard to the cause of action alleging lack of informed consent, the plaintiffsfailed to raise a triable issue of fact in opposition to the prima facie showings of theShinbrot defendants and the ProHealthcare defendants to entitlement to judgment as amatter of law, as the plaintiffs did not address or specifically oppose those branches ofthe motions which were referable to that cause of action (see Rebozo v Wilen, 41AD3d at 459; see also Bhim v Dourmashkin, 123 AD3d at 865; Deutsch vChaglassian, 71 AD3d at 719-720). Accordingly, upon renewal and reargument, theSupreme Court should have granted those branches of the separate motions which werefor summary judgment dismissing the cause of action alleging lack of informedconsent.
In light of our determination, we need not reach the plaintiffs' remainingcontentions.
Accordingly, upon renewal and reargument, the Supreme Court should have granted,in their entirety, the Shinbrot defendants' and the ProHealthcare defendants' separatemotions for summary judgment dismissing the complaint insofar as asserted against eachof them. Rivera, J.P., Dickerson, Chambers and Barros, JJ., concur.