| Feuer v Ng |
| 2016 NY Slip Op 00708 [136 AD3d 704] |
| February 3, 2016 |
| Appellate Division, Second Department |
[*1]
| Michael Feuer, Individually and as Administrator of theEstate of Deborah Boden, Deceased, Respondent, v Michael Ng, M.D., et al.,Appellants. |
Gerspach Sikoscow LLP, New York, NY (Alexander Sikoscow of counsel), forappellant Michael Ng.
Heidell, Pittoni, Murphy & Bach, LLP, New York, NY (Daniel S. Ratner andDaryl Paxson of counsel), for appellant New York Epilepsy & Neurology.
William Schwitzer & Associates, P.C., New York, NY (Dennis A. Breitner andHoward Cohen of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice and wrongfuldeath, etc., the defendant Michael Ng appeals, as limited by his brief, from so much of anorder of the Supreme Court, Kings County (Steinhardt, J.), dated April 7, 2014, as deniedhis motion for summary judgment dismissing the complaint insofar as asserted againsthim, and the defendant New York Epilepsy & Neurology separately appeals, aslimited by its brief, from so much of the same order as denied that branch of its motionwhich was for summary judgment dismissing so much of the complaint as alleged that itwas vicariously liable for the alleged medical malpractice of the defendant MichaelNg.
Ordered that the order is reversed insofar as appealed from, on the law, with one billof costs, the motion of the defendant Michael Ng for summary judgment dismissing thecomplaint insofar as asserted against him is granted, and that branch of the motion of thedefendant New York Epilepsy & Neurology which was for summary judgmentdismissing so much of the complaint as alleged that it was vicariously liable for thealleged medical malpractice of the defendant Michael Ng is granted.
The plaintiff commenced this action alleging, inter alia, that the defendantscommitted medical malpractice and caused the wrongful death of his wife (hereinafterthe decedent). Prior to her death, the decedent suffered from a neurological conditionknown as pseudotumor cerebri, which involves, among other symptoms, elevatedpressure in a patient's head that causes severe headaches. The decedent was treated forthis condition by nonparty Moeen Din, a neurologist at the defendant neurology practice,New York Epilepsy & Neurology (hereinafter NYEN). The decedent was treated byDin at NYEN from January through August of 2010. After Din left NYEN, the decedentwas [*2]referred to the defendant Michael Ng, who wasalso a neurologist at NYEN. Her first and only physical appointment with Ng occurredon February 16, 2011. During that appointment, Ng recommended that the decedentundergo a spinal tap because her pseudotumor cerebri symptoms were persisting. Thespinal tap was performed at Staten Island University Hospital on March 3, 2011, and theresults were conveyed to Ng.
In the weeks following the spinal tap, Ng prescribed medications to the decedentover the phone on a few occasions. During their last telephone conversation, thedecedent complained of leg and back pain that had developed since the spinal tap. Overthe telephone, based on the decedent's complaints, Ng diagnosed her pain asradiculopathy related to the spinal tap, and prescribed medications based upon thisdiagnosis. Two days after this conversation, the decedent suddenly died. The cause of herdeath was unknown until an autopsy revealed that the decedent had suffered an acutepulmonary embolism caused by deep vein thrombosis of her left calf.
Ng and NYEN separately moved for summary judgment dismissing the complaintinsofar as asserted against each of them. They argued, in relevant part, that Ng did notdeviate from the accepted standard of care for a neurologist treating a patient in theweeks following a spinal tap and that, in any event, any alleged deviation was not aproximate cause of the decedent's death since, under the circumstances presented here,deep vein thrombosis would not have been suspected or detected. In the order appealedfrom, the Supreme Court denied Ng's motion and denied that branch of NYEN's motionwhich was for summary judgment dismissing so much of the complaint as alleged that itwas vicariously liable for Ng's alleged medical malpractice.
The elements of a cause of action to recover damages for medical malpracticeinclude a deviation or departure from the accepted standard of care and evidence that thedeviation or departure was a proximate cause of injury or damage (see Arocho v D. Kruger, P.A.,110 AD3d 749, 750 [2013]; Gillespie v New York Hosp. Queens, 96 AD3d 901 [2012];Hamilton v Good Samaritan Hosp. of Suffern, N.Y., 73 AD3d 697[2010]). To prevail on a motion for summary judgment in a medical malpractice action,the defendant must "make a prima facie showing either that there was no departure fromaccepted medical practice, or that any departure was not a proximate cause of thepatient's injuries" (Matos vKhan, 119 AD3d 909, 910 [2014]). In response, the plaintiff need only raise atriable issue of fact regarding "the element or elements on which the defendant has madeits prima facie showing" (Mitchell v Grace Plaza of Great Neck, Inc., 115 AD3d 819,819 [2014]; see Stukas vStreiter, 83 AD3d 18 [2011]).
Here, Ng established his prima facie entitlement to judgment as a matter of law bysubmitting an affirmation of an expert neurologist who, after reviewing the relevantmedical records and deposition testimony, opined that Ng did not deviate from theaccepted standard of care in his treatment of the decedent following her spinal tap(see Mitchell v Grace Plaza of Great Neck, Inc., 115 AD3d at 819-820).Specifically, the expert neurologist indicated that Ng had no reason to suspect deep veinthrombosis and that his working diagnosis of radiculopathy was appropriate given thedecedent's symptoms and the context in which she developed them following the spinaltap. Based on his review of the deposition testimony and medical records, the expertneurologist further opined that it was not necessary for Ng to physically examine thedecedent before treating her for radiculopathy. The expert neurologist also opined thatany alleged deviation by Ng from the accepted standard of care was not a proximatecause of the decedent's injuries and death. He stated that, under the circumstancespresented here, even if Ng had physically examined the decedent, he would have had noreason to suspect deep vein thrombosis.
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiffsubmitted an affidavit of a physician specializing in the field of internal medicine whoopined that Ng should have known that radiculopathy was the wrong diagnosis andshould have considered a broader array of potential problems as part of a differentialdiagnosis. The plaintiff's expert, however, was not a neurologist, and the affidavit failedto indicate whether the plaintiff's expert had any specific training or expertise inneurology, or particularized knowledge as to the treatment of a patient after a spinal tap.The affidavit did not indicate that the plaintiff's expert had familiarized himself or herselfwith the relevant literature or otherwise set forth how he or she was, or became, [*3]familiar with the applicable standards of care for aneurologist treating a patient after a spinal tap. Accordingly, the opinion of the plaintiff'sexpert was of no probative value to the extent that the expert opined that Ng should haveknown that the decedent's symptoms were not indicative of radiculopathy and that Ngdeviated from the standard of neurological care in how he treated the decedent for thatcondition after the spinal tap (see Tsimbler v Fell, 123 AD3d 1009 [2014]; Shectman v Wilson, 68 AD3d848 [2009]; cf. Erbstein v Savasatit, 274 AD2d 445 [2000]).
Moreover, while the plaintiff's expert was qualified, as an internist, to opine on thegeneral standard of care for a doctor treating and diagnosing a patient with leg pain, theexpert's affidavit failed to raise a triable issue of fact as to whether Ng's allegeddepartures from that standard of care proximately caused the decedent's injuries anddeath. The affidavit was conclusory and speculative on the issue of proximate cause, andfailed to address the specific assertions made by Ng's expert (see Brinkley v Nassau Health CareCorp., 120 AD3d 1287 [2014]; Forrest v Tierney, 91 AD3d 707 [2012]; Graziano v Cooling, 79 AD3d803 [2010]). The plaintiff's remaining contentions regarding the expert submissionsare without merit. Accordingly, the Supreme Court should have granted Ng's motion forsummary judgment dismissing the complaint insofar as asserted against him.
The Supreme Court also should have granted that branch of NYEN's motion whichwas for summary judgment dismissing so much of the complaint as alleged that it wasvicariously liable for Ng's alleged medical malpractice. Because there are no triableissues of fact with respect to Ng's alleged medical malpractice, no basis exists forproceeding against NYEN under a vicarious liability theory (see Goler v Sonsky, 115 AD3d644 [2014]). Leventhal, J.P., Dickerson, Maltese and Duffy, JJ., concur.