| Abakpa v Martin |
| 2015 NY Slip Op 07804 [132 AD3d 924] |
| October 28, 2015 |
| Appellate Division, Second Department |
[*1](October 28, 2015)
| Grace Abakpa et al., Respondents, v DeanMartin, Defendant, and Audrey Stedford, Appellant. |
Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Jennifer B. Ettenger,Karen Corbett, and Christine T. Quigley of counsel), for appellant.
Pazer, Epstein & Jaffe, P.C. (Thomas Torto and Jason Levine, New York, N.Y.,of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, etc., thedefendant Audrey Stedford appeals from an order of the Supreme Court, Kings County(Steinhardt, J.), dated November 6, 2013, which granted the plaintiffs' motion for leaveto reargue their opposition to her motion for summary judgment dismissing the complaintinsofar as asserted against her, which had been granted in an order of the same courtdated May 6, 2013, and, upon reargument, vacated the determination in the order datedMay 6, 2013, granting her motion for summary judgment dismissing the complaintinsofar as asserted against her and thereupon denied the motion.
Ordered that the order dated November 6, 2013, is modified, on the law, by deletingthe provision thereof, upon reargument, vacating the determination in the order datedMay 6, 2013, granting the motion of the defendant Audrey Stedford for summaryjudgment dismissing the complaint insofar as asserted against her and thereupon denyingthat motion, and substituting therefor a provision, upon reargument, adhering to thedetermination in the order dated May 6, 2013, granting the motion of the defendantAudrey Stedford for summary judgment dismissing the complaint insofar as assertedagainst her; as so modified, the order dated November 6, 2013, is affirmed, with costs tothe appellant.
On February 25, 2008, the plaintiff Grace Abakpa (hereinafter the injured plaintiff)underwent a hysterectomy, which was performed by the defendant Dean Martin. OnFebruary 29, 2008, the injured plaintiff called Dr. Martin's office and spoke with thedefendant Audrey Stedford, a nurse who worked for Dr. Martin. According to the injuredplaintiff, she complained that she was having "severe pain" and "cold sweats," and feltlike she was "burning up," although Stedford testified at her deposition that the injuredplaintiff denied any symptoms of an infection on that date, including fever. Stedfordrefilled a prescription for pain medication for the injured plaintiff, but did not advise theinjured plaintiff to come to Dr. Martin's office on that date. On March 3, 2008, theinjured plaintiff attempted to alleviate her pain by placing a hot water bottle on herabdomen, but fell asleep and sustained severe burns. On March 5, 2008, the injuredplaintiff called Dr. Martin's office to report the burns, spoke with Stedford, andcomplained that she was feeling "severe pain," "cold sweats," and "possible fever." AtStedford's instruction, the injured plaintiff came to Dr. Martin's office that day for anexamination. Dr. Martin prescribed an antibiotic for the injured plaintiff to [*2]prevent her from developing an infection from the burnsbut did not diagnose the injured plaintiff with an existing infection. The next day, theinjured plaintiff's condition worsened and she was hospitalized at Staten IslandUniversity Hospital, where she was diagnosed with an infection and treated withintravenous antibiotics.
The injured plaintiff, and her husband suing derivatively (hereinafter together theplaintiffs), commenced this action against Dr. Martin and Stedford, inter alia, to recoverdamages for medical malpractice arising from their alleged failure to diagnose her withan infection resulting from the hysterectomy. Stedford moved for summary judgmentdismissing the complaint insofar as asserted against her. In an order dated May 6, 2013,the Supreme Court, among other things, granted Stedford's motion for summaryjudgment dismissing the complaint insofar as asserted against her. The plaintiffs thenmoved for leave to reargue their opposition to Stedford's motion for summary judgment.In an order dated November 6, 2013, the Supreme Court granted the plaintiffs' motionfor leave to reargue their opposition to Stedford's motion for summary judgment, and,upon reargument, vacated the determination in the order dated May 6, 2013, grantingStedford's motion for summary judgment, and thereupon denied that motion.
Contrary to Stedford's contention, the Supreme Court providently exercised itsdiscretion in granting reargument (see Shields v Kleiner, 93 AD3d 710, 711-712 [2012]; Knizeski v Settembres Limousine,Inc., 54 AD3d 1005, 1006 [2008]). However, upon reargument, the SupremeCourt erred in failing to adhere to its original determination granting Stedford's motionfor summary judgment dismissing the complaint insofar as asserted against her.
"In order to establish the liability of a professional health care provider for medicalmalpractice, a plaintiff must prove that the provider 'departed from accepted communitystandards of practice, and that such departure was a proximate cause of the plaintiff'sinjuries' " (Schmitt vMedford Kidney Ctr., 121 AD3d 1088, 1088 [2014], quoting DiGeronimo v Fuchs, 101AD3d 933, 936 [2012] [internal quotation marks omitted]). "[A] professional healthcare provider who moves for summary judgment dismissing a complaint alleging medicalmalpractice 'must establish, prima facie, either that there was no departure or that anydeparture was not a proximate cause of the plaintiff's injuries' " (Schmitt vMedford Kidney Ctr., 121 AD3d at 1088, quoting Gillespie v New York Hosp.Queens, 96 AD3d 901, 902 [2012]). "Once the health care provider has madesuch a showing, the burden shifts to the plaintiff to demonstrate the existence of a triableissue of fact, but only as to the elements on which the defendant met the prima facieburden" (Schmitt v Medford Kidney Ctr., 121 AD3d at 1088; see Stukas v Streiter, 83 AD3d18, 30 [2011]).
Here, Stedford failed to establish, prima facie, that she did not depart from good andaccepted nursing practice by failing to instruct the injured plaintiff to come in for anexamination on February 29, 2008, or to record the injured plaintiff's complaints madeon that date and promptly notify Dr. Martin of those complaints (see Quinn v NyackHosp., 286 AD2d 675, 677 [2001]). Stedford's experts, in opining that she did notdepart from good and accepted nursing practice, relied upon Stedford's depositiontestimony that the injured plaintiff denied any signs or symptoms of an infection,including fever, on February 29, 2008, but they failed to address conflicting evidence inthe record, specifically, that the injured plaintiff testified at her deposition that she toldStedford she felt like she was "burning up" on February 29, 2008, and that Stedfordtestified she would be "worried about an infection" if a patient complained of "burningup," which "to me means fever" (see Reiss v Sayegh, 123 AD3d 787, 789 [2014]; Faicco v Golub, 91 AD3d817, 818 [2012]; Muscatello v City of New York, 215 AD2d 463, 464[1995]).
However, Stedford established, prima facie, that any departures by her from theapplicable standard of care were not a proximate cause of the alleged injuries (see generally Shashi v SouthNassau Communities Hosp., 104 AD3d 838 [2013]; Goldsmith v Taverni, 90 AD3d704 [2011]). In opposition to that prima facie showing, the plaintiffs failed to raise atriable issue of fact based on the speculative opinion of their expert that a post-operativeinfection, even assuming such a condition existed on February 29, 2008, could have beendiagnosed sooner if Stedford had instructed the injured plaintiff to come in for anexamination on February 29, 2008, or recorded the injured plaintiff's complaints made onthat date and promptly notified Dr. Martin of those complaints (see [*3]Senatore v Epstein, 128 AD3d 794, 795-796[2015]; Rivera vJothianandan, 100 AD3d 542 [2012]; Goldsmith v Taverni, 90 AD3d at705; Simmons v BrooklynHosp. Ctr., 74 AD3d 1174, 1178 [2010]; Rodriguez v Montefiore Med. Ctr., 28 AD3d 357[2006]).
Accordingly, the Supreme Court should have, upon reargument, adhered to itsoriginal determination granting Stedford's motion for summary judgment dismissing thecomplaint insofar as asserted against her. Rivera, J.P., Leventhal, Austin andHinds-Radix, JJ., concur.