| Whitnum v Plastic & Reconstructive Surgery,P.C. |
| 2016 NY Slip Op 05710 [142 AD3d 495] |
| August 3, 2016 |
| Appellate Division, Second Department |
[*1]
| Lisa Whitnum, Appellant, v Plastic andReconstructive Surgery, P.C., et al., Respondents. |
Lisa Whitnum, Greenwich, Connecticut, appellant pro se.
Gerspach Sikoscow LLP, New York, NY (Brian E. Bergin and Alexander Sikoscowof counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice and lack ofinformed consent, the plaintiff appeals, (1) as limited by her brief, from so much of anorder of the Supreme Court, Westchester County (Lefkowitz, J.), entered March 8, 2012,as denied that branch of her motion which was to compel certain discovery, (2) from anorder of the same court (Connolly, J.) dated June 27, 2013, which granted the defendants'motion for summary judgment dismissing the amended complaint, and (3), as limited byher brief, from so much of an order of the same court (Connolly, J.) dated December 16,2013, as denied her motion for leave to renew, and her separate motion for leave toreargue, her opposition to the defendants' motion for summary judgment dismissing theamended complaint.
Ordered that the order entered March 8, 2012, is affirmed insofar as appealed from,and it is further,
Ordered that the order dated June 27, 2013, is modified, on the law, by deleting theprovision thereof granting that branch of the defendants' motion which was for summaryjudgment dismissing the cause of action alleging lack of informed consent, andsubstituting therefor a provision denying that branch of the motion; as so modified, theorder is affirmed; and it is further,
Ordered that the appeal from so much of the order dated December 16, 2013, asdenied the plaintiff's motion for leave to reargue is dismissed, as no appeal lies from anorder denying reargument; and it is further,
Ordered that the order dated December 16, 2013, is modified, on the law, by deletingthe provision thereof denying that branch of the plaintiff's motion which was for leave torenew her opposition to that branch of the defendants' motion which was for summaryjudgment dismissing the cause of action alleging lack of informed consent, andsubstituting therefor a provision denying that branch of the plaintiff's motion asacademic; as so modified, the order is [*2]affirmedinsofar as reviewed; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The plaintiff was diagnosed with cancer in her left breast which was surgicallytreated via a lumpectomy and lymph node resection performed by the nonparty physicianAnthony Cahan. Subsequently, the plaintiff underwent breast reconstructive andaugmentation surgery performed, in part, by the defendant, David Palaia, a plasticsurgeon, at the defendant Plastic & Reconstructive Surgery, P.C. The plaintiffcommenced this action alleging, inter alia, medical malpractice, lack of informedconsent, breach of contract, fraud, assault and battery, negligence, intentional andnegligent infliction of emotional distress, and to recover in quantum meruit. In particular,the plaintiff alleged that she told Palaia that she wanted gel "gummy bear" implants in asize B or small C cup, but, instead, received "liquid gel" silicone implants in a size Dcup.
The defendants moved for summary judgment dismissing the amended complaint. Insupport of the motion, the defendants submitted an expert affidavit. The Supreme Courtgranted the motion. We modify.
Initially, contrary to the plaintiff's contention, the Supreme Court did not err indenying that branch of her motion which was to compel the defendants to produce copiesof consent forms of other patients who had undergone mastectomy/reconstructivesurgery. " 'It is incumbent on the party seeking disclosure to demonstrate that themethod of discovery sought will result in the disclosure of relevant evidence or isreasonably calculated to lead to the discovery of information bearing on the claims, andunsubstantiated bare allegations of relevancy are insufficient to establish the factualpredicate regarding relevancy' " (Wadolowski v Cohen, 99 AD3d 793, 794 [2012], quotingCrazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [1989]).Here, in light of the privileged nature of the subject records and the bare allegations ofrelevancy, the Supreme Court did not improvidently exercise its discretion in denyingthat branch of the plaintiff's motion seeking other patients' consent forms, even with theirnames redacted (see Quinones v9 E. 69th St., LLC, 132 AD3d 750, 751 [2015]; Gilman & Ciocia, Inc. vWalsh, 45 AD3d 531, 531 [2007]).
Regarding the allegations of medical malpractice, "[t]he requisite elements of proofin a medical malpractice action are a deviation or departure from accepted communitystandards of practice and evidence that such departure was a proximate cause of injury ordamage" (Geffner v NorthShore Univ. Hosp., 57 AD3d 839, 842 [2008]; see Deutsch v Chaglassian, 71AD3d 718, 719 [2010]). In moving for summary judgment dismissing a cause ofaction alleging medical malpractice, a defendant must establish, prima facie, either thatthere was no departure or that any departure was not a proximate cause of the plaintiff'sinjuries (see Lingfei Sun v Cityof New York, 99 AD3d 673, 675 [2012]; Stukas v Streiter, 83 AD3d 18, 24 [2011]). Once such ashowing has been made, the burden shifts to the plaintiff to demonstrate the existence ofa triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Fritz v Burman, 107 AD3d936, 940 [2013]). " 'Expert testimony is necessary to prove a deviation fromaccepted standards of medical care and to establish proximate cause' " (Novick v South NassauCommunities Hosp., 136 AD3d 999, 1000 [2016], quoting Lyons vMcCauley, 252 AD2d 516, 517 [1998]).
Here, the defendants established, prima facie, through Palaia's deposition testimony,the plaintiff's medical records, and their expert affidavit, that their treatment of theplaintiff did not depart from good and accepted medical practice (see Lesniak v Stockholm Obstetrics& Gynecological Servs., P.C., 132 AD3d 959, 960 [2015]; Monzon v Brown, 130 AD3d884, 885 [2015]; Conto vLynch, 122 AD3d 1136, 1137 [2014]; Montagnino v Inamed Corp., 120 AD3d 1317, 1318-1319[2014]). In particular, the defendants' expert stated that Palaia's decision to determine theexact size of the implants at the time of the operation in order to achieve propersymmetry comported with accepted medical practice. In opposition, the plaintiff did notsubmit an expert affidavit. Instead, she only furnished her own affidavit and theaffidavits of two friends who supported her allegations. These submissions wereinsufficient to raise a triable issue of fact regarding the defendants' alleged deviationfrom accepted medical practice.
[*3] "Toestablish a cause of action [to recover damages] for malpractice based on lack ofinformed consent, 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 lack of informed consentis a proximate cause of the injury" (Spano v Bertocci, 299 AD2d 335, 337-338[2002] [internal quotation marks omitted]; see Khosrova v Westermann, 109 AD3d 965 [2013]).
Here, the Supreme Court erred in determining that the defendants established theirprima facie entitlement to judgment as a matter of law dismissing the cause of actionalleging lack of informed consent (see Chan v Toothsavers Dental Care, Inc., 125 AD3d 712,714 [2015]; Walker v SaintVincent Catholic Med. Ctrs., 114 AD3d 669, 670-671 [2014]). Although thedefendants demonstrated that they cannot be held liable for lack of informed consentbased upon the size of the implants used, the defendants failed to establish that theycannot be held liable for lack of informed consent based on the type of implants used.The consent forms signed by the plaintiff stated that she would be receiving "gel"implants, but did not identify the particular brand or manufacturer of the implants.Although the defendants' expert averred that the operative report indicated that "Palaiaexplained the risks, benefits and alternatives to [the plaintiff] prior to the procedure," andnoted that consent forms were signed, he failed to aver that "the consent form compliedwith the prevailing standard for such disclosures applicable to reasonable practitionersperforming the same kind of surgery" (Walker v Saint Vincent Catholic Med.Ctrs., 114 AD3d at 671; seeMuniz v Katlowitz, 49 AD3d 511, 513 [2008]; Haggerty v Wyeth AyerstPharms., 11 AD3d 511, 512-513 [2004]). Since the defendants failed toestablish their prima facie entitlement to judgment as a matter of law, that branch of theirmotion which was for summary judgment dismissing the cause of action alleging lack ofinformed consent should have been denied, regardless of the sufficiency of the plaintiff'sopposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]; Schussheim vBarazani, 136 AD3d 787, 790 [2016]; see also Snyder v Simon, 49 AD3d 954, 956-957[2008]).
In light of our conclusion that Supreme Court should have denied that branch of thedefendants' motion which was for summary judgment dismissing the cause of actionalleging lack of informed consent, so much of the plaintiff's motion which was for leaveto renew her opposition to that branch of the defendants' motion should have been deniedas academic. The court providently exercised its discretion in denying the plaintiff'smotion for leave to renew her opposition to the remaining branches of the defendants'motion. There was no reasonable justification for the plaintiff's failure to submit thepurportedly new evidence in opposition to the defendants' motion (see CPLR2221 [e]; Phillips v City of NewYork, 107 AD3d 774 [2013]).
The plaintiff's remaining contentions are without merit. Balkin, J.P., Dickerson,Sgroi and Maltese, JJ., concur.