| Senatore v Epstein |
| 2015 NY Slip Op 04112 [128 AD3d 794] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| Matthew Senatore, as Administrator of the Estate ofFrank Senatore, Deceased, et al., Respondents, v Boris Epstein, M.D., et al.,Appellants. |
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP,New York, N.Y. (Josie M. Conelley and Michael S. Kelton of counsel), for appellantBoris Epstein.
McAloon & Friedman, P.C., New York, N.Y. (Gina Bernardi Di Folco ofcounsel), for appellants Reginald Ashley Orr and Maimonides Medical Center.
Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin ofcounsel), for respondents.
In an action to recover damages for medical malpractice, etc., the defendant BorisEpstein appeals, and the defendants Reginald Ashley Orr and Maimonides MedicalCenter separately appeal, from so much of an order of the Supreme Court, Kings County(Bunyan, J.), dated August 7, 2013, as denied their separate motions for summaryjudgment dismissing the complaint insofar as asserted against each of them.
Ordered that the order is reversed, on the law, with one bill of costs payable to thedefendants appearing separately and filing separate briefs, and the motions aregranted.
Frank Senatore and his wife Tina Senatore, suing derivatively, brought this medicalmalpractice action against Boris Epstein, who was Frank Senatore's primary carephysician, and Reginald Ashley Orr, who treated Frank Senatore at the emergency roomat the defendant Maimonides Medical Center (hereinafter Maimonides). The complaintasserted causes of action alleging medical malpractice and medical malpractice based onlack of informed consent, and for loss of services. Frank Senatore died while this actionwas pending, and Matthew Senatore was substituted in his place as the administrator ofhis estate. After discovery was completed, Dr. Epstein moved for summary judgmentdismissing the complaint insofar as asserted against him, and Dr. Orr and Maimonidesmade a separate motion for summary judgment dismissing the complaint insofar asasserted against them.
In order to establish the liability of a physician for medical malpractice, a plaintiffmust prove that the physician deviated or departed from accepted community standardsof practice, and that such departure was a proximate cause of the plaintiff's injuries (see Barrocales v New YorkMethodist Hosp., 122 AD3d 648, 649 [2014]; Stukas v Streiter, 83 AD3d18, 23 [2011]). Accordingly, a physician moving for summary judgment dismissinga complaint alleging medical malpractice must establish, prima facie, either that therewas no departure or that any departure was not a proximate cause of the [*2]plaintiff's injuries (see Gillespie v New York Hosp. Queens, 96 AD3d 901,902 [2012]; Faicco v Golub,91 AD3d 817, 818 [2012]; Roca v Perel, 51 AD3d 757, 758-759 [2008]). Once adefendant physician has made such a showing, the burden shifts to the plaintiff todemonstrate the existence of a triable issue of fact, but only as to the elements on whichthe defendant met the prima facie burden (see Gillespie v New York Hosp.Queens, 96 AD3d at 902; Stukas v Streiter, 83 AD3d at 30). Summaryjudgment is not appropriate in a medical malpractice action where the parties adduceconflicting medical expert opinions (see Feinberg v Feit, 23 AD3d 517, 519 [2005]; Shields v Baktidy, 11 AD3d671, 672 [2004]). However, a plaintiff's expert's affidavit that is conclusory orspeculative is insufficient to raise a triable issue of fact in opposition to a defendant'sprima facie showing (see Gillespie v New York Hosp. Queens, 96 AD3d at902).
The Supreme Court erred in denying those branches of the defendants' respectivemotions which were for summary judgment dismissing the cause of action allegingmedical malpractice based on lack of informed consent insofar as asserted against eachof them. The defendants established, prima facie, that they did not commit an"affirmative violation of [the] physical integrity" of Frank Senatore, which is "anessential element" of a cause of action for medical malpractice based on lack of informedconsent (Flanagan v CatskillRegional Med. Ctr., 65 AD3d 563, 566-567 [2009]). In opposition, the plaintiffsfailed to raise a triable issue of fact.
Dr. Epstein established his prima facie entitlement to judgment as a matter of lawwith respect to the medical malpractice cause of action asserted against him bysubmitting an expert affirmation which was based upon the medical records, whichdemonstrated that he did not depart from the accepted standard of care in his treatment ofFrank Senatore, and that, in any event, any alleged departure was not a proximate causeof his injuries. In opposition to that showing, the plaintiffs' expert's conclusory andspeculative opinion failed to raise a triable issue of fact as to whether Dr. Epsteindeparted from the accepted standard of care in his treatment of Frank Senatore and, if so,whether such alleged departure was a proximate cause of Frank Senatore's injuries (see Simmons v Brooklyn Hosp.Ctr., 74 AD3d 1174, 1178 [2010]; Rodriguez v Montefiore Med. Ctr., 28 AD3d 357[2006]).
In support of their separate motion, Dr. Orr and Maimonides submitted the detailedexpert affirmations of three physicians, two of whom examined Frank Senatore. Thisevidence established, prima facie, that they did not depart from the accepted standard ofcare and that, in any event, the alleged departures did not proximately cause FrankSenatore's injuries. The opinion of the plaintiffs' expert submitted in opposition wasconclusory and speculative, particularly on the issue of proximate causation. Therefore,that branch of their motion which was for summary judgment dismissing the medicalmalpractice cause of action insofar as asserted against them should have been granted aswell (see Rivera vGreenstein, 79 AD3d 564, 568 [2010]). Eng, P.J., Leventhal, Hall and Roman,JJ., concur.