| Webb v Scanlon |
| 2015 NY Slip Op 08603 [133 AD3d 1385] |
| November 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Jeffrey Webb, Appellant, v Thomas S. Scanlon, M.D.,FACP, Respondent. |
Justin S. White, Williamsville, for plaintiff-appellant.
Roach, Brown, McCarthy & Gruber, P.C., Buffalo (J. Mark Gruber of counsel),for defendant-respondent.
Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.),entered September 29, 2014. The order granted the motion of defendant for summaryjudgment and dismissed the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this medical malpractice action alleging thatdefendant, his primary care physician, was negligent in prescribing him various painmedications to treat pain that plaintiff reported experiencing in his arm and shoulder.Although plaintiff admits that he falsified symptoms so that he could obtain the painmedication prescriptions from defendant, the complaint, as amplified by the bill ofparticulars, alleges, inter alia, that defendant should have performed diagnostic testing todetermine whether plaintiff actually needed the medications. We conclude that SupremeCourt properly granted defendant's motion for summary judgment dismissing thecomplaint.
In order to meet his initial burden on his summary judgment motion in this medicalmalpractice action, defendant was required to "present factual proof, generally consistingof affidavits, deposition testimony and medical records, to rebut the claim of malpracticeby establishing that [he] complied with the accepted standard of care or did not cause anyinjury to the patient" (Cole vChamplain Val. Physicians' Hosp. Med. Ctr., 116 AD3d 1283, 1285 [2014]; see Lake v Kaleida Health, 59AD3d 966, 966 [2009]). A defendant physician may submit his or her own affidavitto meet that burden, but that affidavit must be "detailed, specific and factual in nature"(Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]; seeCole, 116 AD3d at 1285), and must "address each of the specific factual claims ofnegligence raised in [the] plaintiff's bill of particulars" (Wulbrecht v Jehle, 89 AD3d1470, 1471 [2011] [internal quotation marks omitted]).
Here, in support of his motion, defendant submitted plaintiff's deposition testimonyin which plaintiff admitted that he lied to defendant about his subjective complaints ofpain in order to "manipulate [defendant] into prescribing drugs" for him. Defendant alsosubmitted his own affidavit, with accompanying medical records, wherein he describedhis physical examinations of plaintiff and plaintiff's complaints of pain and reducedrange of motion. Defendant opined that his treatment of plaintiff complied with theaccepted standard of medical care because he performed physical examinations whenthey were called for, plaintiff was instructed on the medication's proper use whenprescribed, and the medications were properly prescribed based upon plaintiff's history,his complaints, and the physical examinations performed by defendant and otherphysicians. Defendant's affidavit was sufficiently detailed and specific, and defendantthus established his entitlement to judgment as a matter of law (see Suib v Keller, 6 AD3d805, 806 [2004]; Toomey, 280 AD2d at 755). In order to raise an issue offact to defeat defendant's motion, plaintiff was required to submit "evidentiary facts ormaterials to rebut the prima facie showing [*2]by thedefendant physician" beyond mere "[g]eneral allegations of medical malpractice"(Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]). It is well settled that"[e]xpert opinion evidence from a party defendant in a medical malpractice action whichis otherwise sufficient to show entitlement to summary judgment 'requires some expertresponse from plaintiff on the question of alleged deviation from proper and approvedmedical practice' " (Maust v Arseneau, 116 AD2d 1012, 1012 [1986];see Bills v Africano, 132 AD2d 935, 935 [1987]). Here, plaintiff failed to submitthe requisite expert medical response in opposition to the motion (see Maust, 116AD2d at 1012; see also Brown v Soldiers & Sailors Mem. Hosp., 193 AD2d1077, 1078 [1993]), and "[t]he affidavit of plaintiff's attorney was insufficient to raise atriable issue of fact" (Bills, 132 AD2d at 935). Present—Scudder, P.J.,Centra, Peradotto, Lindley and Valentino, JJ.