| Leto v Feld |
| 2015 NY Slip Op 06576 [131 AD3d 590] |
| August 19, 2015 |
| Appellate Division, Second Department |
[*1]
| Dorothy Leto, Respondent, v Randy J. Feld etal., Appellants, et al., Defendants. |
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (ChristopherSimone, Sofya Abdurakhmanova, and Yelena Ambartsumian of counsel), forappellant.
Duffy & Duffy, Uniondale, N.Y. (Brian C. Lockhart of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice, the defendantsRandy J. Feld, Carl S. Schreiber, and North Nassau Cardiology Associates, P.C., appeal(1), as limited by their brief, from so much of an order of the Supreme Court, NassauCounty (Sher, J.), dated April 16, 2013, as denied their motion for summary judgmentdismissing the complaint insofar as asserted against them, and (2) from a judgment of thesame court dated July10, 2013, which, upon the order, is in favor of the defendantMichael B. Grieco and against the plaintiff dismissing the complaint insofar as assertedagainst that defendant.
Ordered that the appeal from the judgment is dismissed, without costs ordisbursements, as the appellants are not aggrieved thereby (see CPLR 5511); andit is further,
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the motion of the defendants Randy J. Feld, Carl S. Schreiber, andNorth Nassau Cardiology Associates, P.C., which was for summary judgment dismissingthe complaint insofar as asserted against the defendant Carl S. Schreiber, and substitutingtherefor a provision granting that branch of the motion; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements.
On February 12, 2009, during a procedure to remove a cancerous mass in his colon,the plaintiff's husband (hereinafter the decedent) developed a slower than normal heartrate and low blood pressure, which caused him to go into cardiac arrest.Cardio-respiratory resuscitation ultimately proved unsuccessful. The decedent had ahistory of cardiovascular disease, beginning in 2001, when, at the age of 63, heunderwent bypass surgery. The plaintiff commenced this action alleging, inter alia,negligent management of the decedent's care by Carl S. Schreiber, the decedent's treatingcardiologist, and negligence on the part of Randy J. Feld, the cardiologist who performeda pre-surgical risk assessment, in clearing the decedent for surgery. The plaintiff alsoalleged that North Nassau Cardiology Associates, P.C. (hereinafter NNCA), isvicariously liable for the actions of Feld and Schreiber.
[*2] A physician moving for summary judgment dismissinga complaint alleging medical malpractice must establish, prima facie, either that therewas no departure from accepted community standards of medical practice, or that anyalleged departure was not a proximate cause of the plaintiff's injuries (see Aronov v Soukkary, 104AD3d 623, 624 [2013]; DiGeronimo v Fuchs, 101 AD3d 933, 936 [2012]; Gillespie v New York Hosp.Queens, 96 AD3d 901, 902 [2012]). Once a defendant has made such ashowing, the burden shifts to the plaintiff to "submit evidentiary facts or materials torebut the prima facie showing by the defendant physician" (Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
Here, Feld, Schreiber, and NNCA (hereinafter collectively the appellants) establishedtheir prima facie entitlement to judgment as a matter of law on the issues of departurefrom accepted community standards of medical practice and proximate cause bysubmitting the affirmation of their expert, which demonstrated that neither Schreiber norFeld had departed from standard practice, and that even if they had, any such departurewould not have proximately caused the decedent's death.
In opposition, the plaintiff submitted an affirmation from a medical expert in whichthe expert stated that departures by Schreiber and Feld were substantial contributingfactors in causing the decedent's death. However, the expert identified substantive issuesthat pertained only to omissions by Feld when providing the pre-operative riskassessment, and not to Schreiber's ongoing treatment of the decedent over the years. It isundisputed that Schreiber did not participate in the pre-operative risk assessment, and didnot even learn about the surgery until after the decedent's death. Moreover, theallegations of the plaintiff's expert as to Schreiber were conclusory and whollyunsupported by the evidence (see 68 NY2d at 325). Since the plaintiff failed toraise a triable issue of fact as to a departure by Schreiber, the Supreme Court erred indenying that branch of the appellants' motion which was for summary judgmentdismissing the complaint insofar as asserted against Schreiber.
However, while the affirmation of the plaintiff's expert was insufficient to raise atriable issue of fact as to Schreiber, it did raise triable issues of fact as to Feld, who had aduty of care as a consultant to advise and make appropriate recommendations to thedecedent's treating physician (see Al Malki v Krieger, 213 AD2d 331, 334[1995]). The plaintiff's expert opined that Feld departed from the standard of care, interalia, by failing to recommend the placement of a temporary or permanent pacemaker, andthat such placement prior to surgery might have prevented the slow heart rate that led tothe decedent's death. That the appellants' expert disagreed, opining that "such aprophylactic placement is not the standard of care in this type of patient," merelypresented a credibility battle between the parties' experts, and "issues of credibility areproperly left to a jury for its resolution" (Barbuto v Winthrop Univ. Hosp., 305AD2d 623, 624 [2003]; seeWexelbaum v Jean, 80 AD3d 756, 758 [2011]; McKenzie v Clarke, 77 AD3d637, 638 [2010]; Deutsch vChaglassian, 71 AD3d 718, 719 [2010]; Shields v Baktidy, 11 AD3d 671, 672 [2004]).Accordingly, the Supreme Court properly denied that branch of the appellants' motionwhich was for summary judgment dismissing the complaint insofar as asserted againstFeld. For the same reasons, the court properly denied that branch of the motion whichwas for summary judgment dismissing the complaint insofar as asserted against NNCA.Mastro, J.P., Austin, Roman and Sgroi, JJ., concur.