| Macias v Ferzli |
| 2015 NY Slip Op 06659 [131 AD3d 673] |
| August 26, 2015 |
| Appellate Division, Second Department |
[*1]
| Milton Macias et al., as Administrators of the Estate ofJacqueline Andrade, Deceased, Appellants, v George Ferzli, M.D., et al.,Respondents, et al., Defendants. |
Anthony T. DiPietro (Norman A. Olch, New York, N.Y., of counsel), forappellants.
Brown, Gruttadaro, Gaujean & Prato LLC, White Plains, N.Y. (Bridget K.Dahle of counsel), for respondents George Ferzli and Armando Castro.
Silverson Pareres & Lombardi LLP, New York, N.Y. (Rachel H. Poritz ofcounsel), for respondents Peter Gerard Bauer, "Mary" Nalbandian, "Jun" Li, and AllenCoopersmith.
DeCorato Cohen Sheehan & Federico, LLP, New York, N.Y. (Joshua R. Cohen,Linda J. DeCorato, Stephen J. Belessis, and Namita K. Mehta of counsel), forrespondents Kannan Muralikrishnan, sued herein as "John" Murali, and LutheranMedical Center.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffsappeal, as limited by their brief, from (1) so much of an order of the Supreme Court,Kings County (Steinhardt, J.), dated October 3, 2012, as granted the motion of thedefendants Kannan Muralikrishnan, sued herein as "John" Murali, and Lutheran MedicalCenter, and the separate motion of the defendants George Ferzli, George Ferzli, M.D.,P.C., and Armando Castro, for summary judgment dismissing the complaint insofar asasserted against each of them, and granted that branch of the motion of the defendantsPeter Gerard Bauer, "Mary" Nalbandian, "Jun" Li, and Allen Coopersmith which was forsummary judgment dismissing the complaint insofar as asserted against the defendantPeter Gerard Bauer, and (2) so much of an order of the same court dated May 8, 2013, asdenied the plaintiffs' motion pursuant to CPLR 2221 for leave to reargue their oppositionto the respondents' separate motions.
Ordered that the appeal from the order dated May 8, 2013, is dismissed, as no appeallies from an order denying reargument; and it is further,
Ordered that the order dated October 3, 2012, is modified, on the law, by deleting theprovision thereof granting the motion of the defendants Kannan Muralikrishnan, suedherein as "John" Murali, and Lutheran Medical Center for summary judgment dismissingthe complaint insofar as asserted against each of them, and substituting therefor aprovision denying that motion; as so modified, the order dated October 3, 2012, isaffirmed insofar as appealed from; and it is further,
[*2] Ordered that one bill of costs is awarded to theplaintiffs, payable by the defendants Kannan Muralikrishnan, sued herein as "John"Murali, and Lutheran Medical Center, and one bill of costs is awarded to the remainingrespondents appearing separately and filing separate briefs, payable by the plaintiffs.
The decedent Jacqueline Andrade, who had suffered from morbid obesity, underwentlaparoscopic band (hereinafter lap band) surgery in 2002, which was performed by thedefendant George Ferzli (hereinafter Ferzli). Andrade had no issue with the lap banduntil after she became pregnant in 2004. In June 2004, after visiting Ferzli's office withcomplaints of nausea, vomiting, constipation, and pain in the area of the lap band,Andrade, then 19 weeks pregnant, was admitted to the defendant Lutheran MedicalCenter (hereinafter LMC). Andrade's symptoms never subsided and a gastrointestinalwork-up did not reveal a cause for them. The defendant Armando Castro recommendedthe insertion of a feeding tube to provide nutritional support to Andrade during herpregnancy as the preferred course of action, although doing nothing or removing the lapband also were presented as options. The medical records submitted by the defendantKannan Murali Krishnan, sued herein as "John" Murali (hereinafter Murali), and LMCindicate that Andrade rejected the feeding tube option and decided to have the lap bandsurgically removed. Castro subsequently performed the surgery.
According to Castro's medical records from the surgery, in the recovery room,Andrade was treated with supplemental oxygen for decreased oxygen saturation levels.After her levels had stabilized, she was transferred to the obstetrics unit of LMC withoutsupplemental oxygen. There are no medical records to reflect Andrade's condition fromthe time she left the recovery room until approximately three hours after she wastransferred to the obstetrics unit. A nursing progress note in the medical records, markedas a "late entry," indicated that Andrade had complained of difficulty breathing.Thereafter, Andrade's oxygen saturation levels were monitored and, as a result of the lowlevel of oxygen saturation, an anesthesiologist was summoned and the defendant PeterGerard Bauer responded. Murali, an LMC obstetrical and gynecological resident, hadbeen in the room with Andrade after she complained of difficulty breathing. Bauer, ananesthesiologist, provided Andrade with supplemental oxygen and an Albuteroltreatment. Thereafter, Andrade was intubated, and then transferred to the surgicalintensive care unit where she was placed on a ventilator. She never recovered and, onJune 28, 2004, almost 20 days after being admitted to LMC, Andrade died and her fetusdid not survive. Andrade's diagnoses included adult respiratory distress syndrome,pneumothorax, sepsis, and multi-organ failure. The autopsy report listed her cause ofdeath as complications following the removal of the lap band.
The plaintiffs commenced this action, inter alia, to recover damages for medicalmalpractice and wrongful death. The defendants Murali and LMC, the defendants Ferzli,Ferzli, M.D., P.C., and Castro, and the defendants Bauer, "Mary" Nalbandian, "Jun" Li,and Allen Coopersmith moved for summary judgment dismissing the complaint insofaras asserted against each of them. In the order appealed from dated October 3, 2012, theSupreme Court, inter alia, granted the motions of Murali and LMC, and Ferzli, FerzliM.D., P.C., and Castro, and granted that branch of the motion of Bauer, "Mary"Nalbandian, "Jun" Li, and Allen Coopersmith which was for summary judgmentdismissing the complaint insofar as asserted against Bauer. The plaintiff appeals fromthose portions of the order. We modify.
"The essential elements of medical malpractice are (1) a deviation or departure fromaccepted medical practice, and (2) evidence that such departure was a proximate cause ofinjury" (DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; see Duvidovich v George, 122AD3d 666, 666 [2014]; Wexelbaum v Jean, 80 AD3d 756, 757 [2011]; Roca v Perel, 51 AD3d757, 758 [2008]). On a motion for summary judgment in a medical malpracticeaction, the defendant has the initial burden of establishing the absence of any departurefrom good and accepted medical practice or that the plaintiff was not injured from such adeparture (see Duvidovich v George, 122 AD3d at 666; Wexelbaum vJean, 80 AD3d at 757; Roca v Perel, 51 AD3d at 758-759). Where such ashowing is made, the burden then shifts to the plaintiff to produce evidentiary proof inadmissible form demonstrating the existence of a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]).
[*3] Here, the Supreme Court should have denied themotion of Murali and LMC for summary judgment dismissing the complaint insofar asasserted against them. "[A] hospital [is] responsible to a patient who sought medical careat the hospital" (Hill v St. Clare's Hosp., 67 NY2d 72, 80-81 [1986]) and mustfollow accepted and approved standards and practices in the care and treatment of itspatients (O'Connell v Albany Med. Ctr. Hosp., 101 AD2d 637, 638 [1984]).Viewing the facts in the light most favorable to the plaintiffs, as the nonmoving parties(see Conklin v Travers, 129AD3d 765, 766 [2015]; International Exterior Fabricators, LLC v Decoplast, Inc., 128AD3d 1016, 1018 [2015]; Paris v Ferri, 122 AD3d 814, 815 [2014]; Faicco v Golub, 91 AD3d817, 818 [2012]), Murali and LMC failed to establish their prima facie entitlementto judgment as a matter of law. The affirmation of their medical expert was conclusory,ignored important facts, and was based on certain factual errors. Specifically, the expertfailed to address the almost three-hour gap in the LMC medical records for the period oftime after Andrade was transferred from the recovery room to the obstetrics unit. Theexpert also failed to address the fact that Murali was in Andrade's room in the obstetricsunit in the immediate aftermath of her complaint of respiratory distress and shortness ofbreath. The expert also based his opinion on erroneous facts, noting, for example, thatAndrade developed respiratory distress at 6:00 p.m., while the medical record indicatesthat Andrade complained of respiratory distress at 3:20 p.m. Thus, the expert affirmationfailed to eliminate all triable issues of fact as to whether the failure to monitor Andradeduring this period constituted a departure from good and accepted medical practice andwhether Andrade's respiratory distress and death were due to the lack of propermonitoring and timely treatment (see Faicco v Golub, 91 AD3d at 818; Wall v Flushing Hosp. Med.Ctr., 78 AD3d 1043, 1045 [2010]; Callahan v Guneratne, 78 AD3d 753, 754 [2010]; Kuri v Bhattacharya, 44 AD3d718, 718 [2007]). "[B]are conclusory assertions," such as those contained in theaffidavit proffered by the medical expert of Murali and LMC, are insufficient todemonstrate the absence of any triable issues of fact (Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]).
Inasmuch as Murali and LMC failed to establish their prima facie entitlement tojudgment as a matter of law, it is unnecessary to review the sufficiency of the plaintiffs'opposition papers insofar as they address the contentions of Murali and LMC (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Accordingly, the SupremeCourt should have denied the motion of Murali and LMC for summary judgmentdismissing the complaint insofar as asserted against them.
However, the Supreme Court properly granted the motion of the defendants Ferzli,Ferzli, M.D., P.C., and Castro for summary judgment dismissing the complaint insofar asasserted against each of them, and properly granted that branch of the motion of Bauer,"Mary" Nalbandian, "Jun" Li, and Allen Coopersmith which was for summary judgmentdismissing the complaint insofar as asserted against Bauer. These defendants eachestablished, prima facie, that they did not depart from good and accepted standards ofmedical practice in their treatment of Andrade and that their actions were not a proximatecause of her respiratory distress or eventual death (see DiMitri v Monsouri, 302AD2d at 420-421; Duvidovich v George, 122 AD3d at 666; Wexelbaum vJean, 80 AD3d at 757; Roca v Perel, 51 AD3d at 758-759).
In opposition, the plaintiffs failed to raise a triable issue of fact. "General allegationsof medical malpractice, merely conclusory and unsupported by competent evidence. . . are insufficient to defeat [a] defendant physician's summary judgmentmotion" (Alvarez v Prospect Hosp., 68 NY2d at 325; see Duvidovich vGeorge, 122 AD3d at 666; Khosrova v Westermann, 109 AD3d 965, 967 [2013]; Lifshitz v Beth Israel Med.Ctr.-Kings Highway Div., 7 AD3d 759, 760 [2004]). Contrary to the plaintiffs'contention, the Supreme Court properly concluded that the expert affirmation submittedin opposition to the motions of these defendants was conclusory, speculative, andwithout any basis in the record and, therefore, was insufficient to raise a triable issue offact.
The plaintiffs' remaining contentions are either without merit or improperly raised forthe first time on appeal. Rivera, J.P., Austin, Cohen and Duffy, JJ., concur.