| DeGiorgio v Racanelli |
| 2016 NY Slip Op 00925 [136 AD3d 734] |
| February 10, 2016 |
| Appellate Division, Second Department |
[*1]
| Pasquale DeGiorgio, Appellant, v JosephRacanelli, M.D., et al., Respondents, et al., Defendant. |
Jeffrey J. Shapiro & Associates, LLC, New York, NY, for appellant.
Catania, Mahon, Milligram & Rider, PLLC, Newburgh, NY (Rebecca BaldwinMantello and Ari I. Bauer of counsel), for respondents Joseph Rancanelli, West HudsonImaging Associates, PLLC, and Radiologic Associates, P.C.
Feldman, Kleidman, Coffey, Sappe & Regenbaum LLP, Fishkill, NY (MarshaSolomon Weiss of counsel), for respondents John McLaughlin and OrthopedicAssociates of Dutchess County.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffappeals from (1) an order of the Supreme Court, Orange County (Bartlett, J.), datedFebruary 27, 2014, which granted the motion of the defendants Joseph Racanelli, WestHudson Imaging Associates, PLLC, and Radiologic Associates, P.C., and the separatemotion of the defendants John McLaughlin and Orthopedic Associates of DutchessCounty, for summary judgment dismissing the complaint insofar as asserted against eachof them, and (2) a judgment of the same court entered March 26, 2014, which, upon theorder, is in favor of the defendants Joseph Racanelli, West Hudson Imaging Associates,PLLC, and Radiologic Associates, P.C., and against the plaintiff, dismissing thecomplaint insofar as asserted against them.
Ordered that the appeal from so much of the order dated February 27, 2014, asgranted the motion of the defendants Joseph Racanelli, West Hudson ImagingAssociates, PLLC, and Radiologic Associates, P.C., for summary judgment, dismissingthe complaint insofar as asserted against them is dismissed; and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, and the motion ofthe defendants John McLaughlin and Orthopedic Associates of Dutchess County forsummary judgment dismissing the complaint insofar as asserted against them is denied;and it is further,
Ordered that the judgment is reversed, on the law, the motion of the defendantsJoseph Racanelli, West Hudson Imaging Associates, PLLC, and Radiologic Associates,P.C., for summary judgment dismissing the complaint insofar as asserted against them isdenied, the order is modified accordingly, and the complaint is reinstated against thosedefendants; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by the [*2]respondents appearing separately and filing separatebriefs.
The appeal from so much of the order as granted the motion of the defendants JosephRacanelli, West Hudson Imaging Associates, PLLC, and Radiologic Associates, P.C., forsummary judgment dismissing the complaint insofar as asserted against them must bedismissed, because the right of direct appeal from that portion of the order terminatedwith the entry of judgment in the action in favor of those defendants (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
The plaintiff went to the emergency room of the defendant St. Luke's CornwallHospital on October 9, 2011, complaining of a possible broken ankle after having fallenoff a ladder. The attending physician ordered a series of X rays of the plaintiff's ankle,and the plaintiff was discharged with directions to follow up with an orthopedist. Thenext morning, the defendant Joseph Racanelli, a board-certified diagnostic radiologistand staff member at St. Luke's Cornwall Hospital, who was associated with thedefendants West Hudson Imaging Associates, PLLC (hereinafter West Hudson), andRadiological Associates, P.C., reviewed the three X rays that had been taken of theplaintiff's ankle the day before, and dictated a diagnostic report that there were "nofractures or dislocations" and "no abnormalities."
On October 12, 2011, the plaintiff saw the defendant John McLaughlin, aboard-certified orthopedic surgeon, who was associated with the defendant OrthopedicAssociates of Dutchess County (hereinafter Orthopedic Associates). McLaughlinconducted a physical examination of the plaintiff's ankle, and also reviewed the X rays ofthe plaintiff's ankle taken three days earlier and Racanelli's diagnostic report. Based onhis review, McLaughlin diagnosed the plaintiff's condition as an ankle sprain, andrecommended that the plaintiff wear a controlled ankle movement boot. On December 2,2011, the plaintiff returned to see McLaughlin, who found that the plaintiff's ankle stillhad some "mild swelling."
On March 13, 2012, the plaintiff returned to Orthopedic Associates and sawnonparty Dr. Wen Shen. A CT scan was taken, which revealed that the plaintiff had a"comminuted chronic fracture" of the talus bone in his right ankle. The plaintiff was alsodiagnosed with "posttraumatic arthritis," and, in July 2012, underwent tibio-talocalcanealfusion surgery.
The plaintiff thereafter commenced this action sounding in medical malpracticeagainst, among others, Racanelli, West Hudson, Radiologic Associates, P.C.,McLaughlin, and Orthopedic Associates. Following discovery, Racanelli, West Hudson,and Radiologic Associates, P.C. (hereinafter collectively the Racanelli defendants),moved for summary judgment dismissing the complaint insofar as asserted against eachof them. In support of their motion, the Racanelli defendants submitted an affirmation ofAdel Ramsey Abadir, a physician board-certified in radiology and vascular/interventionalradiology, who stated that Racanelli had not departed from the radiologic standard ofcare in his interpretation of the X rays that were taken on October 9, 2011. Abadir furtherstated that any departure in failing to diagnose the fracture was not a proximate cause ofthe plaintiff's injuries, since the treatment would have been the same even if a fracturehad been diagnosed.
McLaughlin and Orthopedic Associates (hereinafter together the McLaughlindefendants) also moved for summary judgment dismissing the complaint insofar asasserted against each of them. The McLaughlin defendants did not submit an affirmationfrom their own medical expert, but relied upon Abadir's affirmation. The plaintiffopposed the motions with an affirmation from his expert, Christopher J. Cassels, aboard-certified orthopedic surgeon, who stated that the fracture was visible in theOctober 9, 2011 X rays, and that the failure of Racanelli and McLaughlin to identify itwas a departure from the standard of care. Cassels further stated that "[h]ad the plaintiff'sfracture been identified in a timely fashion, the [plaintiff] would have undergone urgentsurgery with open reduction and internal fixation of the fractured talus" which "wouldhave prevented or slowed the process of joint deterioration . . . and couldhave obviated the need for a tibio-talocalcaneal . . . fusion and led to a morefavorable result."
[*3] In an order datedFebruary 27, 2014, the Supreme Court granted the separate summary judgment motionsof the Racanelli defendants and the McLaughlin defendants. A judgment was entered onMarch 26, 2014, in favor of the Racanelli defendants and against the plaintiff, dismissingthe action insofar as asserted against them.
In a medical malpractice action, a defendant physician moving for summaryjudgment must establish, prima facie, "either that there was no departure or that anydeparture was not a proximate cause of the plaintiff's injuries" (Lesniak v Stockholm Obstetrics& Gynecological Servs., P.C., 132 AD3d 959, 960 [2015]). Once thisshowing has been made, a plaintiff, in opposition, need only demonstrate the existence ofa triable issue of fact "as to those elements on which the defendant met the prima facieburden" (Harris v Saint Joseph'sMed. Ctr., 128 AD3d 1010, 1012 [2015]; see Stukas v Streiter, 83 AD3d 18, 30 [2011]).
Through the affirmation of their expert, Abadir, the Racanelli defendants established,prima facie, that Racanelli's interpretation of the X rays was not a departure from theradiologic standard of care. However, the Racanelli defendants failed to establish, primafacie, that the plaintiff's injuries were not proximately caused by the alleged departure(see Petrik v Pilat, 119AD3d 760, 760 [2014]; Stukas v Streiter, 83 AD3d at 25-26), since theirexpert's expertise was diagnostic radiology and vascular/interventional radiology, and nottreatment, and he failed to lay any foundation for the reliability of his opinion withrespect to treatment. Where " 'a physician opines outside his or her area ofspecialization, a foundation must be laid tending to support the reliability of the opinionrendered' " (Bey vNeuman, 100 AD3d 581, 582 [2012], quoting Shectman v Wilson, 68 AD3d848, 850 [2009]; cf. Bongiovanni v Cavagnuolo, 138 AD3d 12 [2d Dept 2016]).
Since the Racanelli defendants made a prima facie showing only with respect to theelement of departure, the plaintiff, in opposition, was required to raise a triable issue offact only as to that element. Contrary to the Supreme Court's determination, the plaintiffraised a triable issue of fact as to the Racanelli defendants' departure with Cassels'affirmation. Specifically, Cassels affirmed that the fracture was "readily detectable" inthe October 9, 2011 X rays, particularly in the lateral view image, and that Racanelli"departed from the standard of care" by failing to detect the fracture upon hisinterpretation of those images. Cassels' affirmation was sufficient to defeat their primafacie showing even though he was not a specialist in the field of diagnostic radiology. Helaid a foundation for his opinion when he stated that part of the residency requirement fororthopedic surgeons is training in interpretation of radiology studies, which was withinhis expertise, and thus established his "knowledge of the relevant standards of care" (Leavy v Merriam, 133 AD3d636, 638 [2015]).
The Supreme Court also erred in granting the McLaughlin defendants' motion forsummary judgment dismissing the complaint insofar as asserted against them. TheMcLaughlin defendants did not submit an expert affirmation in support of their motion,but relied upon the affirmation of the Racanelli defendant's medical expert, Abadir, whodid not purport to be familiar with the standard of care for an orthopedic surgeon. Thus,the McLaughlin defendants failed to establish, prima facie, that McLaughlin's failure todiagnose the plaintiff's ankle fracture did not depart from the standard of care, or that anydeparture was not a proximate cause of the plaintiff's injury. In light of their failure toestablish their prima facie entitlement to summary judgment, their motion should havebeen denied, regardless of the sufficiency of the plaintiff's submissions in opposition(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Accordingly, the Supreme Court should have denied the separate motions of theRacanelli defendants and the McLaughlin defendants for summary judgment dismissingthe complaint insofar as asserted against each of them. Balkin, J.P., Dickerson, Millerand Hinds-Radix, JJ., concur.