| Lesniak v Stockholm Obstetrics & Gynecological Servs.,P.C. |
| 2015 NY Slip Op 07823 [132 AD3d 959] |
| October 28, 2015 |
| Appellate Division, Second Department |
[*1]
| Michelle Lesniak, Respondent, v StockholmObstetrics & Gynecological Services, P.C., et al.,Appellants. |
Dwyer & Taglia, New York, N.Y. (Peter R. Taglia of counsel), forappellants.
Morton Povman, P.C., Forest Hills, N.Y. (Bruce Povman and Robin Singh ofcounsel), for respondent.
In an action to recover damages for medical malpractice, the defendants appeal froman order of the Supreme Court, Kings County (Bunyan, J.), dated March 26, 2014, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On August 31, 2010, at about 9:12 a.m., the plaintiff presented to the emergencyroom of Wyckoff Heights Hospital (hereinafter the hospital) complaining of lowerabdominal pain. She reported that she had recently miscarried and had undergone adilation and curettage. She was first seen by a resident, and later in the day, she was seenby the defendant John Riggs. The plaintiff underwent testing, including a sonogram. Thesonogram revealed a 4.0-centimeter cystic mass on the right adnexa, and the ultrasoundreport noted that "an ectopic pregnancy cannot be excluded." A urine pregnancy test waspositive, and a blood test revealed that the plaintiff's beta HCG was 18.5. That night, shewas admitted to the hospital. Her chart indicated three potential causes for her symptoms:endometritis, a ruptured ovarian cyst, and appendicitis. The next morning, the defendantPeter Itzhak took over the plaintiff's care. The plaintiff's abdominal pain had intensifiedand Itzhak recommended an exploratory laparoscopy. The surgery was delayed until 5:25p.m. because of scheduling issues. The surgery revealed a ruptured right ectopicpregnancy, and the plaintiff's right fallopian tube was removed.
In May 2012, the plaintiff commenced this action against the defendant doctors andtheir medical practice, Stockholm Obstetrics & Gynecological Services, P.C.,alleging that the doctors' delay in diagnosing the plaintiff's ectopic pregnancy and intreating her condition caused her to lose a fallopian tube and suffer diminished fertilitycapacity.
"The requisite elements of proof in a medical malpractice action are a deviation ordeparture from accepted community standards of practice and evidence that suchdeparture was a proximate cause of injury or damage" (Geffner v North Shore Univ.Hosp., 57 AD3d 839, 842 [2008]). In moving for summary judgment dismissinga complaint alleging medical malpractice, a defendant must establish, prima facie, eitherthat there was no departure or that any departure was not a proximate cause of theplaintiff's injuries (see LingfeiSun v City of New York , 99 AD3d 673, 675 [2012]; [*2]Stukas v Streiter, 83 AD3d 18, 24 [2011]). Oncesuch a showing has been made, the burden shifts to the plaintiff to demonstrate theexistence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]; Fritz v Burman,107 AD3d 936, 940 [2013]).
Here, the defendants established their prima facie entitlement to judgment as a matterof law through the affirmation of a physician who specialized in obstetrics andgynecology. That physician opined that the care rendered to the plaintiff did not departfrom the standard of care, and, in any event, that any departure was not a proximate causeof the plaintiff's injuries. However, in opposition thereto, the plaintiff raised triable issuesof fact. Specifically, the plaintiff's expert opined that the plaintiff was exhibitingsymptoms of an ectopic pregnancy when she presented at the hospital, that the delay inher treatment was a departure from accepted medical practice, and such departure was aproximate cause of the plaintiff's injuries.
Accordingly, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing the complaint. Eng, P.J., Chambers, Roman and Barros, JJ.,concur.