| Leavy v Merriam |
| 2015 NY Slip Op 08148 [133 AD3d 636] |
| November 12, 2015 |
| Appellate Division, Second Department |
[*1]
| Deborah Leavy, Individually and as Administratrix ofthe Estate of Thomas Leavy, Deceased, Respondent, v Louis Thayer Merriam,M.D., et al., Appellants, et al., Defendants. |
Harris Beach PLLC, New York, N.Y. (B. Michael Wright, Pamela B. Goldsmith, andSvetlana K. Ivy of counsel), for appellants Louis Thayer Merriam, Stony Brook SurgicalAssociates, P.C., Alice Greene, and Ira J. Rampil.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavekand Valerie Figueredo of counsel), for appellants Jennifer Whittemore and KristineO'Hara.
Pegalis & Erickson, LLC, Lake Success, N.Y. (Gerhardt M. Nielsen ofcounsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, etc., thedefendants Louis Thayer Merriam, Alice Greene, Ira J. Rampil, and Stony BrookSurgical Associates, P.C., appeal, and the defendants Jennifer Whittemore and KristineO'Hara separately appeal, as limited by their respective briefs, from so much of anamended order of the Supreme Court, Suffolk County (Molia, J.), dated May 28, 2013, asdenied their separate motions for summary judgment dismissing the complaint insofar asasserted against them respectively.
Ordered that the amended order is modified, on the law, by deleting the provisionthereof denying that branch of the motion of the defendants Jennifer Whittemore andXiusheng Qin which was for summary judgment dismissing the complaint insofar asasserted against Jennifer Whittemore, and substituting therefor a provision granting thatbranch of the motion; as so modified, the order is affirmed insofar as appealed from, withone bill of costs to the plaintiff payable by the defendants Louis Thayer Merriam, AliceGreen, Ira J. Rampil, Stony Brook Surgical Associates, P.C., and Kristine O'Hara, andone bill of costs to the defendant Jennifer Whittemore payable by the plaintiff.
In November 2004, the plaintiff's decedent underwent a surgical procedure toremove his gallbladder. He was cleared for surgery by the defendant Dr. Alice Greene.The procedure was performed by the defendant Dr. Louis Thayer Merriam. Thedefendant Dr. Ira J. Rampil, an anesthesiologist, cared for the decedent in the recoveryroom after the operation, and he was assisted by the defendant Dr. Jennifer Whittemore,who was then a second-year anesthesiology resident. The defendant Dr. Kristine O'Hara,then a first-year surgical resident, treated the decedent after he was discharged from therecovery room. The decedent suffered a heart attack two days after the operation and wastransferred to an intensive care unit. While in the intensive care unit, the decedent wasexamined by the defendant Dr. Xiusheng Qin, a second year hematology fellow. Thedecedent [*2]recovered, but suffered a second heartattack about a month later, and died. The plaintiff, the decedent's wife, commenced thisaction as administrator of the decedent's estate and individually, alleging, inter alia,medical malpractice against these defendants, among others. As relevant to this appeal,the Supreme Court denied the motion of Merriam and Stony Brook Surgical Associates,P.C. (hereinafter Stony Brook), the motion of Greene, the motion of Rampil, and themotion of O'Hara for summary judgment dismissing the complaint insofar as assertedagainst each of them, and denied that branch of the motion of Whittemore and XiushengQin which was for summary judgment dismissing the complaint insofar as assertedagainst Whittemore.
In order to establish liability for medical malpractice, a plaintiff must prove that thedefendant deviated or departed from accepted community standards of practice and thatsuch departure was a proximate cause of the plaintiff's injuries (see Salvia v St. Catherine of SiennaMed. Ctr., 84 AD3d 1053, 1053-1054 [2011]; Stukas v Streiter, 83 AD3d18, 23 [2011]; Heller vWeinberg, 77 AD3d 622 [2010]). On a motion for summary judgment, adefendant has the burden of establishing the absence of any departure from good andaccepted medical practice or that the plaintiff was not injured thereby (see Salvia v St.Catherine of Sienna Med. Ctr., 84 AD3d at 1053-1054; Heller v Weinberg,77 AD3d at 622-623). In opposition, a plaintiff must submit evidentiary facts or materialsto rebut the defendant's prima facie showing, so as to demonstrate the existence of atriable issue of fact (see Stukas v Streiter, 83 AD3d at 23-24).
Here, the defendants Merriam, Stony Brook, Greene, Rampil, and O'Hara establishedtheir prima facie entitlement to judgment as a matter of law dismissing the complaintinsofar as asserted against each of them by submitting the affidavits of their experts, whoopined that they did not deviate or depart from accepted medical practice. However, inopposition, the plaintiff raised a triable issue of fact, through the affirmation of herexpert, as to whether these defendants departed from good and accepted medical practiceand, if so, whether such a departure was a proximate cause of the decedent's injuries (see Schmitt v Medford KidneyCtr., 121 AD3d 1088 [2014]). The contention of Merriam, Stony Brook,Greene, and Rampil that the plaintiff's expert was unqualified to give an expert opinionon the standard of care of a general surgeon and an anesthesiologist merely because theexpert was a cardiologist is without merit. An expert witness must possess the requisiteskill, training, knowledge, or experience to ensure that an opinion rendered is reliable (see Tsimbler v Fell, 123 AD3d1009, 1009-1010 [2014]; Behar v Coren, 21 AD3d 1045 [2005]; Postlethwaite v United HealthServs. Hosps., 5 AD3d 892, 895 [2004]; LaMarque v North Shore Univ.Hosp., 227 AD2d 594 [1996]). Once a medical expert establishes, as was done here,his or her knowledge of the relevant standards of care, he or she need not be a specialistin the particular area at issue to offer an opinion (see Tsimbler v Fell, 123 AD3dat 1009; Bodensiek v Schwartz, 292 AD2d 411 [2002]; Erbstein vSavasatit, 274 AD2d 445 [2000]; Allone v University Hosp. of N.Y. Univ. Med.Ctr., 235 AD2d 447, 448 [1997]; Julien v Physician's Hosp., 231 AD2d 678,680 [1996]). Any lack of skill or expertise goes to the weight of his or her opinion asevidence, not its admissibility (see Adamy v Ziriakus, 92 NY2d 396 [1998];Erbstein v Savasatit, 274 AD2d 445, 445 [2000]; Julien v Physician'sHosp., 231 AD2d 678, 680 [1996]).
The argument advanced by Merriam, Stony Brook, Greene, and Rampil that theyshould be granted partial summary judgment is not properly before this Court, as it wasraised for the first time in their reply papers (see Poveromo v Kelley-Amerit Fleet Servs., Inc., 127 AD3d1048 [2015]; Matter ofLipton v Lipton, 98 AD3d 621, 622 [2012]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 206[2009]).
The Supreme Court erred in denying that branch of the motion of Whittemore andXiusheng Qin which was for summary judgment dismissing the complaint insofar asasserted against Whittemore. "A resident who assists a doctor during a medicalprocedure, and who does not exercise any independent medical judgment, cannot be heldliable for malpractice so long as the doctor's directions did not so greatly deviate fromnormal practice that the resident should be held liable for failing to intervene" (Soto v Andaz, 8 AD3d470, 471 [2004]; seeBellafiore v Ricotta, 83 AD3d 632, 633 [2011]; Costello v Kirmani, 54 AD3d656 [2008]; Muniz vKatlowitz, 49 AD3d 511, 513 [2008]). Here, Whittemore satisfied her initialburden by relying on deposition testimony which demonstrated that she was under thedirect supervision of Rampil at the time she cared for the decedent, and that Rampil didnot so greatly deviate from normal practice that Whittemore should be held liable for[*3]failing to intervene. In opposition, the plaintiff failedto raise a triable issue of fact. Dillon, J.P., Sgroi, Cohen and LaSalle, JJ., concur.