| Niedra v Mt. Sinai Hosp. |
| 2015 NY Slip Op 04824 [129 AD3d 801] |
| June 10, 2015 |
| Appellate Division, Second Department |
[*1]
| Ida Niedra, Appellant, v Mt. Sinai Hospital etal., Defendants, and Sudhakar Prabhu et al., Respondents. |
The Jacob D. Fuchsberg Law Firm, LLP, New York, N.Y. (Joseph Lanni and JamesM. Lane of counsel), for appellant.
Morris, Duffy, Alonso & Faley, New York, N.Y. (Iryna S. Krauchanka, AndreaM. Alonso, and Arjay Yao of counsel), for respondent Sudhakar Prabhu.
In an action to recover damages for medical malpractice and wrongful death, theplaintiff appeals from so much of an order of the Supreme Court, Kings County(Jacobson, J.), dated June 3, 2013, as granted that branch of the motion of the defendantsPeter Rouvelas, Bay Ridge Physician's Diagnostic Services, P.C., and Sudhakar Prabhuwhich was for summary judgment dismissing the complaint insofar as asserted againstSudhakar Prabhu.
Ordered that the order is affirmed insofar as appealed from, with costs.
From May 2004 through April 2006, Ojars Niedra (hereinafter the decedent) wastreated by a cardiologist, the defendant Peter Rouvelas, who sent the decedent for a seriesof echocardiograms. Two of the echocardiograms were analyzed by the defendantSudhakar Prabhu, an associate with the defendant Bay Ridge Physicians DiagnosticServices, P.C. (hereinafter Bay Ridge). On March 9, 2005, Prabhu reported that thedecedent's echocardiogram indicated moderate to severe aortic stenosis and moderateaortic insufficiency. On September 20, 2005, Prabhu reported that the decedent'sechocardiogram indicated severe aortic stenosis and mild aortic insufficiency. Rouvelastestified at his deposition that he discussed these findings with the decedent, but did notrecommend aortic valve replacement at that time. On the decedent's final office visit withRouvelas on April 10, 2006, Rouvlas recommended that the decedent undergo atransesophageal echocardiogram (hereinafter TEE), and discussed with him thepossibility of undergoing aortic valve replacement, if that procedure was indicated by theTEE. The decedent declined the recommended procedure, since he was asymptomatic. InAugust 2006, the decedent was diagnosed with congestive heart failure, and underwentsurgery to replace his aortic valve. Shortly after being discharged from the hospital, onAugust 26, 2006, the decedent died.
The plaintiff, as administrator of the decedent's estate, commenced this action to[*2]recover damages for medical malpractice andwrongful death against, among others, Rouvelas, Bay Ridge, and Prabhu. Rouvelas, BayRidge, and Prabhu moved for summary judgment dismissing the complaint insofar asasserted against them. The Supreme Court granted that branch of their motion which wasfor summary judgment dismissing the complaint insofar as asserted against Prabhu. Theplaintiff appeals from so much of the order as granted that branch of their motion.
"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 injury" (Michel vLong Is. Jewish Med. Ctr., 125 AD3d 945, 945 [2015]; see Barrocales v New YorkMethodist Hosp., 122 AD3d 648, 649 [2014]; Berthen v Bania, 121 AD3d732, 732 [2014]; Trauring vGendal, 121 AD3d 1097, 1097 [2014]; Stukas v Streiter, 83 AD3d 18, 23 [2011]). "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" (Gillespie v New York Hosp. Queens, 96 AD3d 901, 902[2012] [citations omitted]).
Here, Rouvelas, Bay Ridge, and Prabhu established Prabhu's prima facie entitlementto judgment as a matter of law through the submission of the affidavit of their medicalexpert, the decedent's medical records, and the transcripts of deposition testimony. Thisevidence demonstrated that Prabhu accurately diagnosed the decedent's aortic stenosisand aortic insufficiency, and did not depart from the applicable standard of care, and that,in any event, any alleged departures were not a proximate cause of the decedent's death(see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Berthen vBania, 121 AD3d at 733; Trauring v Gendal, 121 AD3d at 1098; Stukas vStreiter, 83 AD3d at 30-31).
In opposition, the affidavit of the plaintiff's expert failed to raise a triable issue offact as to a departure by Prabhu from the applicable standard of care (see Forrest v Tierney, 91 AD3d707, 709 [2012]; Ahmed vPannone, 116 AD3d 802, 806 [2014]) Moreover, the plaintiff's expert failed todifferentiate between the alleged acts and omissions of Prabhu and those of the otherdefendants (see Ahmed v Pannone, 116 AD3d at 806; Parrilla v Buccellato, 95 AD3d1091, 1093 [2012]).
Accordingly, the Supreme Court properly granted that branch of the motion ofRouvelas, Bay Ridge, and Prabhu which was for summary judgment dismissing thecomplaint insofar as asserted against Prabhu. Rivera, J.P., Hall, Austin and LaSalle, JJ.,concur.