| Meade v Yland |
| 2016 NY Slip Op 04697 [140 AD3d 931] |
| June 15, 2016 |
| Appellate Division, Second Department |
[*1]
| Kathleen Meade et al., Respondents, v J. MarcYland, M.D., et al., Defendants, and Steven F. West, M.D., et al.,Appellants. |
Phillips Lytle LLP, New York, NY (Eric M. Kraus and Donna M. Lanham ofcounsel), for appellant Steven F. West.
Lewis Johs Avallone Aviles, LLP, Islandia, NY (Robert A. Lifson of counsel), forappellant Raphael P. Davis.
Torgan Cooper & Aaron, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP,New York, NY [Brian J. Isaac and Michael H. Zhu], of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, etc., thedefendants Steven F. West and Raphael P. Davis separately appeal, as limited by theirrespective briefs, from so much of an order of the Supreme Court, Suffolk County (Pitts,J.), dated April 30, 2014, as denied their respective motion and cross motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst each of them.
Ordered that the order is reversed, on the law, with one bill of costs, and therespective motion and cross motion of the defendants Steven F. West and Raphael P.Davis for summary judgment dismissing the complaint and all cross claims insofar asasserted against each of them are granted.
The plaintiff Kathleen Meade (hereinafter the injured plaintiff) received an epiduralsteroid injection from the defendant physician J. Marc Yland on July 22, 2008. Sheawoke from the injection unable to breathe, and unable to move any of her extremities orfeel anything below the C5-C6 level. The injured plaintiff was taken to the emergencyroom at Stony Brook University Hospital (hereinafter Stony Brook). An MRI was takenon July 22, 2008. The defendant physician Steven F. West, a radiologist, testified at hisdeposition that he reviewed that MRI film on that date and did not see any evidence of anabnormal signal to the spinal cord that would suggest an edema from an infarct, a cordcontusion, or some other pathological process. He reviewed a follow-up MRI film of thecervical region of the injured plaintiff's spine approximately two days later, and notedthat it showed spinal cord infarction—a stroke of the spinal cord. The injuredplaintiff remains quadriplegic.
The defendant physician Raphael P. Davis testified at his deposition that he was theon-call neurosurgeon at the time the injured plaintiff came to the Stony Brook emergencyroom. He testified that, after speaking to an emergency room physician's assistant overthe telephone, he [*2]accessed and reviewed the July22nd MRI film of the cervical region of the injured plaintiff's spine from his homecomputer, through Stony Brook's secure website. At his deposition, Davis againreviewed that MRI film and testified that it showed no evidence of spinal cordcompression or hematoma. He stated that the July 22nd MRI film showed noabnormalities regarding the spinal cord or evidence of infarction. Davis further testifiedthat there was no indication for neurosurgical intervention.
The injured plaintiff, and her husband suing derivatively, commenced this action onFebruary 6, 2009. West and Davis moved and cross-moved, respectively, for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against eachof them. Each submitted affirmations from physicians who opined that they adhered toaccepted practices in the services they rendered to the injured plaintiff. West's expertstated that evidence of spinal cord infarction is often not radiologically detectable until24 hours or more after the incident.
In opposition to West's motion, the plaintiffs submitted the affirmation of aboard-certified diagnostic radiologist, who stated that West departed from acceptedpractices by failing to order a diffusion MRI (as opposed to a normal MRI) as afollow-up, and that a diffusion MRI would have detected evidence of the injuredplaintiff's spinal cord infarction. In opposition to Davis's cross motion, the plaintiffssubmitted the affirmation of a board-certified neurosurgeon, who stated that Davisdeparted from accepted practices by refusing to examine the injured plaintiff in person.He further stated that, if Davis had done so, he would have noticed that an order for theadministration of high-dose steroids had not yet been carried out, and that he would haveensured that the steroids were timely administered.
In an order dated April 30, 2014, the Supreme Court denied both the motion and thecross motion, concluding that there were triable issues of fact. West and Davis separatelyappeal.
"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. On a motion for summaryjudgment, a defendant has the burden of establishing the absence of any departure fromgood and accepted medical practice or that the plaintiff was not injured thereby" (Leavy v Merriam, 133 AD3d636, 637 [2015] [citations omitted]; see Alvarez v Prospect Hosp., 68 NY2d320 [1986]; Novick v SouthNassau Communities Hosp., 136 AD3d 999 [2016]). "Expert testimony isnecessary to prove a deviation from accepted standards of medical care and to establishproximate cause" (Lyons v McCauley, 252 AD2d 516, 517 [1998], citingKoehler v Schwartz, 48 NY2d 807 [1979]).
"Although physicians owe a general duty of care to their patients, that duty may belimited to those medical functions undertaken by the physician and relied on by thepatient" (Chulla v DiStefano, 242 AD2d 657, 658 [1997]; see Markley vAlbany Med. Ctr. Hosp., 163 AD2d 639, 640 [1990]).
Here, both West and Davis established, prima facie, that they discharged theirrespective duties to the injured plaintiff in accordance with accepted practices. West'sexpert concluded that West's interpretation of the July 22nd MRI film was correct, and inaccordance with accepted practices. The plaintiffs' expert did not dispute this conclusion,but instead opined that West should have ordered a diffusion MRI to look for evidenceof the injured plaintiff's condition. However, as West correctly contends, he had no suchduty to do so. West's role was to interpret the MRI film and document his findings. Hedid not assume a general duty of care to independently diagnose the injured plaintiff'smedical condition (see Dockeryv Sprecher, 68 AD3d 1043, 1046 [2009]).
Similarly, the plaintiffs' argument that Davis had a duty to examine the injuredplaintiff in person and to ensure that high-dose steroids were properly administered alsois without merit. Davis's duty as a neurosurgical consultant was to determine whetherneurosurgery was necessary. He determined that it was not. His expert stated that thisconclusion was correct, and in accordance with accepted practices. The plaintiffs' expertdid not dispute this conclusion, and did not argue that neurosurgery was necessary. Theplaintiffs presented no evidence to raise a triable issue of fact as to whether Davisassumed a general duty of care to independently diagnose the [*3]injured plaintiff's medical condition (see Dockery vSprecher, 68 AD3d at 1046).
Therefore, the Supreme Court should have granted both the motion and the crossmotion for summary judgment dismissing the complaint and all cross claims insofar asasserted against West and Davis.
We note that even if the plaintiffs' contentions regarding the duties of care owed byDavis and West had merit, the plaintiffs failed to raise a triable issue of fact as toproximate cause in response to said defendants' prima facie showing with respect to thatissue.
In view of the foregoing, we do not address the parties' remaining contentions.Balkin, J.P., Leventhal, Austin and Duffy, JJ., concur. [Prior Case History: 43 Misc3d 1223(A), 2014 NY Slip Op 50757(U).]