| Harris v Saint Joseph's Med. Ctr. |
| 2015 NY Slip Op 04449 [128 AD3d 1010] |
| May 27, 2015 |
| Appellate Division, Second Department |
[*1]
| Joann Thomas Harris et al., Appellants, v SaintJoseph's Medical Center, Also Known as St. Joseph's Medical Center, et al.,Respondents, et al., Defendants. |
Jonathan M. Landsman, New York, N.Y., for appellants.
Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell ofcounsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffsappeal from a judgment of the Supreme Court, Westchester County (O. Bellantoni, J.),entered October 31, 2013, which, upon an order of the same court entered January 11,2013, among other things, granting the motion of the defendants Saint Joseph's MedicalCenter, also known as St. Joseph's Medical Center, and St. Joseph's Family Health Centerfor summary judgment dismissing the complaint insofar as asserted against them, is infavor of those defendants and against the plaintiffs dismissing the complaint insofar asasserted against them.
Ordered that the judgment is modified, on the law, by deleting the provisions thereofdismissing the first and fourth causes of action insofar as asserted against the defendantsSaint Joseph's Medical Center, also known as St. Joseph's Medical Center, and St.Joseph's Family Health Center; as so modified, the judgment is affirmed, with costs tothe appellants, the first and fourth causes of action insofar as asserted against thedefendants Saint Joseph's Medical Center, also known as St. Joseph's Medical Center,and St. Joseph's Family Health Center are reinstated, and the order entered January 11,2013, is modified accordingly.
On September 8, 2006, the plaintiff Joann Thomas Harris (hereinafter the injuredplaintiff) underwent hernia repair surgery at the defendant Saint Joseph's Medical Center,also known as St. Joseph's Medical Center (hereinafter the Hospital). Nine days later, theinjured plaintiff went to the Hospital emergency room complaining that her surgicalwound had opened. According to the Hospital records, the treating emergency roomdoctor consulted with the injured plaintiff's surgeon, who advised the emergency roomdoctor to apply "steri-strips" to the wound. The emergency room doctor subsequentlytestified that the steri-stips were applied to the injured plaintiff's wound and she wasdischarged from the hospital with instructions to consult with her surgeon. However, theplaintiffs contend that the Hospital did not perform such a procedure, and as a result, theinjured plaintiff sustained various injuries. The complaint asserted causes of action torecover damages for medical malpractice, lack of informed consent, common-lawnegligence (asserted only against the defendant Visiting Nurse Services in Westchester),and loss of consortium. The Supreme Court granted the motion of the Hospital and thedefendant St. Joseph's Family Health Center (hereinafter together the Hospitaldefendants) for summary judgment dismissing the complaint insofar as asserted againstthem.
[*2] The essential elements of a causeof action to recover damages for medical malpractice are a deviation or departure fromaccepted medical practice and evidence that such departure was a proximate cause ofinjury (see Poter v Adams,104 AD3d 925, 926 [2013]; Hayden v Gordon, 91 AD3d 819, 820 [2012]; Guzzi v Gewirtz, 82 AD3d838 [2011]). On a motion for summary judgment dismissing a cause of action torecover damages for medical malpractice, a defendant physician must make a prima facieshowing that there was no departure from good and accepted medical practice or that theplaintiff was not injured thereby (see Poter v Adams, 104 AD3d at 926; Gillespie v New York Hosp.Queens, 96 AD3d 901, 902 [2012]; Healy v Damus, 88 AD3d 848, 849 [2011]; Heller v Weinberg, 77 AD3d622, 622-623 [2010]). Once a defendant has made such a showing, the burden shiftsto the plaintiff to "submit evidentiary facts or materials to rebut the prima facie showingby the defendant physician" (Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]), but only as to those elements on which the defendant met the prima facie burden(see Poter v Adams, 104 AD3d at 926; Gentile v McFarlane-Johansson, 108 AD3d 499 [2013]; Sukhraj v New York City Health& Hosps. Corp., 106 AD3d 809 [2013]).
In support of their motion for summary judgment, the Hospital defendants submittedan affirmation from an expert who concluded, inter alia, that the treatment of the injuredplaintiff's condition in the emergency room by the application of steri-strips was "withinthe relevant standard of care." Such evidence established, prima facie, that the allegedtreatment rendered by the Hospital defendants in the emergency room did not departfrom good and accepted medical practice. However, the Hospital defendants failed tomake a prima facie showing that any alleged departure was not a proximate cause of theinjured plaintiff's injuries (seeOrsi v Haralabatos, 20 NY3d 1079, 1080 [2013]). Accordingly, in order todefeat the motion, the plaintiffs only had to raise a triable issue of fact regarding the issueof departure from good and accepted medical practice. The plaintiffs raised such an issueby their testimony and affidavits wherein they stated that the steri-strips procedure wasnever done in the emergency room on the subject date. Contrary to the Hospitaldefendants' contention, the plaintiffs did not need to submit an affirmation from anexpert to dispute the purely factual issue of whether steri-strips were applied when theinjured plaintiff presented at the Hospital emergency room for treatment.
Therefore, since the plaintiffs raised a triable issue of fact, those branches of theHospital defendants' motion which were for summary judgment dismissing the first causeof action, which was to recover damages for medical malpractice, and the fourth cause ofaction, which was to recover damages for loss of consortium, should have been denied(see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). However, the Hospitaldefendants established their prima facie entitlement to judgment as a matter of lawdismissing the cause of action based upon an alleged lack of informed consent, and theplaintiffs failed to raise a triable issue of fact in opposition thereto (see Orphan v Pilnik, 15 NY3d907 [2010]; Khosrova vWestermann, 109 AD3d 965 [2013]). Accordingly, the Supreme Court properlygranted that branch of the Hospital defendants' motion which was for summary judgmentdismissing this cause of action insofar as asserted against the Hospital defendants.Balkin, J.P., Dickerson, Leventhal and Sgroi, JJ., concur.