| Schussheim v Barazani |
| 2016 NY Slip Op 00958 [136 AD3d 787] |
| February 10, 2016 |
| Appellate Division, Second Department |
[*1]
| Cheryl Schussheim, Appellant, v LanceBarazani, M.D., et al., Respondents. |
Cheryl Schussheim, Mineola, NY, appellant pro se.
Law Offices of Mitchell J. Angel PLLC, Mineola, NY (Vincent Ieraci of counsel),for respondents.
In an action to recover damages for medical malpractice and lack of informedconsent, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County(Diamond, J.), dated September 30, 2013, which granted the defendants' motion forsummary judgment dismissing the complaint and, in effect, denied, as academic, theplaintiff's cross motion for summary judgment on the issue of liability, and (2), as limitedby her brief, from so much of an order of the same court dated February 24, 2014, as,upon reargument, adhered to the determination in the order dated September 30,2013.
Ordered that the appeal from the order dated September 30, 2013, is dismissed,without costs or disbursements, as that order was superseded by the order dated February24, 2014, made upon reargument; and it is further,
Ordered that the order dated February 24, 2014, is modified, on the law, (1) bydeleting the provision thereof, upon reargument, adhering to the determination in theorder dated September 30, 2013, granting that branch of the defendants' motion whichwas for summary judgment dismissing the cause of action alleging lack of informedconsent, and substituting therefor a provision, upon reargument, vacating thedetermination in the order dated September 30, 2013, granting that branch of thedefendants' motion, and thereupon denying that branch of the defendants' motion, and (2)by deleting the provision thereof, upon reargument, adhering to the determination in theorder dated September 30, 2013, denying, as academic, that branch of the plaintiff's crossmotion which was for summary judgment on the issue of liability on the cause of actionalleging lack of informed consent, and substituting therefor a provision, uponreargument, vacating the determination in the order dated September 30, 2013, denying,as academic, that branch of the plaintiff's cross motion, and thereupon denying thatbranch of the plaintiff's cross motion on the merits; as so modified, the order datedFebruary 24, 2014, is affirmed insofar as appealed from, without costs ordisbursements.
The plaintiff commenced this action against the defendant Lance Barazani and thedermatology practice where he was employed, the defendant Advanced Dermatology,P.C. The plaintiff alleged, inter alia, that Barazani committed medical malpractice byimproperly prescribing a topical cream to treat a nodular basal cell carcinoma on her leftcheek, and then performing an unnecessary and premature biopsy on her left cheek,which left a scar. The plaintiff also alleged that Barazani failed to obtain her informedconsent for the biopsy. The defendants moved for summary [*2]judgment dismissing the complaint, and the plaintiffcross-moved for summary judgment on the issue of liability. The Supreme Court, interalia, granted the defendants' motion for summary judgment. The plaintiff moved toreargue, and upon reargument, the court adhered to its prior determination. The plaintiffappeals.
To establish a cause of action to recover damages for malpractice based on lack ofinformed consent, a plaintiff must prove (1) that the person providing the professionaltreatment failed to disclose alternatives thereto and failed to inform the patient ofreasonably foreseeable risks associated with the treatment, and the alternatives, that areasonable medical practitioner would have disclosed in the same circumstances, (2) thata reasonably prudent patient in the same position would not have undergone thetreatment if he or she had been fully informed, and (3) that the actual procedureperformed for which there was no informed consent was the proximate cause of theinjury (see Public Health Law § 2805-d [1]; Figueroa-Burgos vBieniewicz, 135 AD3d 810 [2d Dept 2016]; Guctas v Pessolano, 132 AD3d 632, 634 [2015]; Walker v Saint Vincent CatholicMed. Ctrs., 114 AD3d 669, 670 [2014]; Spano v Bertocci, 299 AD2d335, 337-338 [2002]).
Here, the defendants failed to establish their prima facie entitlement to judgment as amatter of law dismissing the cause of action alleging lack of informed consent. The merefact that the plaintiff signed a consent form does not establish the defendants' prima facieentitlement to judgment as a matter of law (see Walker v Saint Vincent Catholic Med.Ctrs., 114 AD3d at 670-671; Kozlowski v Oana, 102 AD3d 751, 753 [2013]; Wilson-Toby v Bushkin, 72AD3d 810, 811 [2010]; Rezvani v Somnay, 65 AD3d 537, 538-539 [2009]). Theconsent form provided by the defendants and signed by the plaintiff warned generallythat there was a risk of scarring after the biopsy was conducted. However, the depositiontestimony of the plaintiff and Barazani, which was submitted by the defendants insupport of their motion, revealed a factual dispute as to whether Barazani properlyadvised the plaintiff of the risk of scarring before she signed the form (see Thaw v North Shore Univ.Hosp., 129 AD3d 937, 939 [2015]; Chan v Toothsavers Dental Care, Inc., 125 AD3d 712, 714[2015]; Kelley v KingsbrookJewish Med. Ctr., 100 AD3d 600, 601 [2012]; Barnett v Fashakin, 85 AD3d832, 835-836 [2011]). The defendants also failed to establish, prima facie, that if theplaintiff had received full disclosure, she still would have consented to the procedure(see Thaw v North Shore Univ. Hosp., 129 AD3d at 939; Rivera v Albany Med. Ctr.Hosp., 119 AD3d 1135, 1138 [2014]; Muniz v Katlowitz, 49 AD3d 511 [2008]; Baez vLockridge, 259 AD2d 573 [1999]). Accordingly, the defendants failed to eliminateall triable issues of fact, and the Supreme Court should have denied that branch of thedefendants' motion which was for summary judgment dismissing the cause of actionalleging lack of informed consent, regardless of the sufficiency of the plaintiff'sopposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]). Since there are questions of fact on the issue of lack of informed consent,the plaintiff was not entitled to summary judgment on the issue of liability on that causeof action.
The elements of a cause of action for medical malpractice include "a deviation ordeparture from accepted standard of care and evidence that the deviation or departurewas a proximate cause of injury or damage" (Arocho v D. Kruger, P.A., 110 AD3d 749, 750 [2013]; see Gillespie v New York Hosp.Queens, 96 AD3d 901 [2012]; Hamilton v Good Samaritan Hosp. of Suffern, N.Y., 73 AD3d697 [2010]). To prevail on a motion for summary judgment in a medical malpracticeaction, the defendant must "make a prima facie showing either that there was nodeparture from accepted medical practice, or that any departure was not a proximatecause of the patient's injuries" (Matos v Khan, 119 AD3d 909, 910 [2014]). In response,the plaintiff need only raise an issue of fact regarding "the element or elements on whichthe defendant has made its prima facie showing" (Mitchell v Grace Plaza of Great Neck, Inc., 115 AD3d 819,819 [2014]; see Stukas vStreiter, 83 AD3d 18 [2011]).
Here, the defendants established, prima facie, through Barazani's depositiontestimony and their expert affidavit, that Barazani did not depart from good and acceptedmedical practice by prescribing a topical cream to the plaintiff to treat her nodular basalcell carcinoma after she opted out of surgery to treat it, and that Barazani did not causethe plaintiff's alleged injuries by prescribing the topical cream (see generally Smith v Agnant,131 AD3d 463, 466-467 [2015]; Monzon v Brown, 130 AD3d 884, 885 [2015]; Reilly v Cohen, 121 AD3d961, 962 [2014]). The defendants also established, prima facie, that Barazani did notdepart from good and accepted medical practice by performing a biopsy on the papule onthe plaintiff's left facial cheek on December 2, 2007.
In opposition, the plaintiff failed to raise a triable issue of fact as to whether Barazanideparted from the standard of care in prescribing the topical cream, and whether thisalleged [*3]departure was a proximate cause of theplaintiff's alleged injuries (seeBrinkley v Nassau Health Care Corp., 120 AD3d 1287, 1290 [2014]; Forrest v Tierney, 91 AD3d707, 709 [2012]; Grazianov Cooling, 79 AD3d 803, 804-805 [2010]; DiMitri v Monsouri, 302AD2d 420, 421 [2003]). The plaintiff's reliance upon recommendations and directivesfor use of the topical cream promulgated by the Food and Drug Administration(hereinafter the FDA) failed to raise a triable issue of fact because the plaintiff's expertnever opined that the FDA recommendations established the applicable standard of carefor dermatologists in treating nodular basal cell carcinoma. The plaintiff also failed toraise a triable issue of fact as to whether Barazani performed an unnecessary orpremature biopsy. The plaintiff's expert affirmation failed to adequately address thedefendants' expert's assertion that the biopsy was necessary to determine whether thepapule on the plaintiff's cheek was basal cell carcinoma (see Berthen v Bania, 121AD3d 732, 733 [2014]). The plaintiff's remaining contentions are without merit.Accordingly, the Supreme Court properly granted that branch of the defendants' motionwhich was for summary judgment dismissing so much of the complaint as sought torecover damages for medical malpractice. Leventhal, J.P., Chambers, Sgroi and Barros,JJ., concur.