| Burns v Goyal |
| 2016 NY Slip Op 08834 [145 AD3d 952] |
| December 28, 2016 |
| Appellate Division, Second Department |
[*1]
| Barbara Burns, Individually and as Executrix ofThomas J. Burns, Deceased, Respondent, v Sudhir Goyal et al., Defendants, andRakesh B. Patel et al., Appellants. |
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY (Christopher Simoneand Gerard S. Rath of counsel), for appellants Rakesh B. Patel and Suffolk Heart Group,LLP.
Keller, O'Reilly & Watson, P.C., Woodbury, NY (Angela A. Cutone ofcounsel), for appellants Michael Torelli and South Shore Family Practice Assoc.,P.C.
Frank N. Ambrosino, Smithtown, NY, for respondent.
In an action to recover damages for wrongful death and medical malpractice, thedefendants Rakesh B. Patel and Suffolk Heart Group, LLP, appeal, and the defendantsMichael Torelli and South Shore Family Practice Assoc., P.C., separately appeal, aslimited by their respective briefs, from so much of an order of the Supreme Court,Suffolk County (Spinner, J.), dated July 23, 2014, as denied their separate motions forsummary judgment dismissing the complaint insofar as asserted against each ofthem.
Ordered that the order is reversed insofar as appealed from, on the law, with one billof costs, and the separate motions of the defendants Rakesh B. Patel and Suffolk HeartGroup, LLP, and the defendants Michael Torelli and South Shore Family PracticeAssoc., P.C., for summary judgment dismissing the complaint insofar as asserted againsteach of them are granted.
The defendant Michael Torelli testified at his deposition that he and his practice, thedefendant South Shore Family Practice Assoc., P.C. (hereinafter South Shore), begantreating the decedent, Thomas Burns, as his primary care physicians, in 1999. Thedefendant Rakesh B. Patel testified that he first treated the decedent for a heart attack in2003. Patel resuscitated the decedent, and later found that the decedent suffered ananterior wall myocardial infarction. Patel placed a stent in the decedent's left anteriordescending artery, which had been 100% blocked. Patel prescribed Plavix, a bloodthinner. In 2005, Patel placed additional stents in the decedent's coronary arteries.
Torelli examined the decedent on April 8, 2008, in order to clear him for herniasurgery, but the decedent's lab results showed acute kidney failure. Torelli referred thedecedent to the defendant Sudhir Goyal, a kidney specialist. Goyal informed the decedentthat he needed to do a kidney biopsy. He testified at his deposition that the decedent hadto stop taking Plavix so that he could perform the biopsy. Goyal spoke to one of Patel'sassociates, who told him: "Patel notes that Plavix/aspirin can be held for 10 to 12 days."The decedent's wife, the plaintiff, Barbara Burns, testified at her deposition that thedecedent stopped taking all of his medications at least three days prior to the biopsy, onJune 3, 2008. The biopsy was canceled. On June 7, 2008, the day after the [*2]kidney biopsy was supposed to have been performed, thedecedent died of cardiac arrest. This action ensued.
Torelli and South Shore (hereinafter together the Torelli defendants) moved forsummary judgment dismissing the complaint insofar as asserted against them, submittingin support the affirmation of an expert internist, who stated that they had no duty to thedecedent regarding the decedent's Plavix prescription, because that was handled by thedecedent's cardiac specialists. Patel and Suffolk Heart Group, LLP (hereinafter togetherthe Patel defendants), separately moved for summary judgment dismissing the complaintinsofar as asserted against them, submitting in support the affirmation of an expertcardiologist, who stated that the standard of care did not require the decedent to remainon Plavix for more than one year after the placement of his most recent stents, and thatthe prescription could be stopped for a few days without issue. The expert also stated thatthere was no evidence that the discontinuance of Plavix was the proximate cause of thedecedent's death.
In opposition, the plaintiff submitted the affirmation of an expert cardiologist, whostated that both Torelli and Patel failed to adhere to accepted practices by failing toensure that the decedent resumed his Plavix prescription after his kidney biopsy wascanceled, and that this was the proximate cause of the decedent's death.
In an order dated July 23, 2014, the Supreme Court denied the separate motions ofthe Torelli defendants and the Patel defendants. The Torelli defendants and the Pateldefendants separately appeal.
"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]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Novick v South NassauCommunities Hosp., 136 AD3d 999 [2016]). "Expert testimony is necessary toprove a deviation from accepted standards of medical care and to establish proximatecause" (Lyons v McCauley, 252 AD2d 516, 517 [1998], citing Koehler vSchwartz, 48 NY2d 807 [1979]).
Contrary to the finding of the Supreme Court, the Torelli defendants established,prima facie, that they had no duty to the decedent regarding his Plavix prescription."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]). Moreover, the question ofwhether a physician owes a duty to the plaintiff is a question for the court, and is "not anappropriate subject for expert opinion" (Burtman v Brown, 97 AD3d 156, 161 [2012]). Here, theTorelli defendants submitted evidence that they played no role in treating the decedentfor his heart issues. It was Patel who treated the decedent for his 2003 heart attack andwho prescribed Plavix to the decedent. Moreover, Goyal, the kidney specialist, testifiedthat he told the decedent to check with his cardiologist—not with his primary carephysician—about being cleared for the kidney biopsy. Goyal also spoke to Patel'sassociate at Suffolk Heart Group, LLP, about stopping the Plavix prior to thebiopsy.
In opposition, the plaintiff submitted no evidence to demonstrate that the Torellidefendants had assumed the duty to care for the decedent's heart issues. Therefore, theSupreme Court should have granted the Torelli defendants' motion for summaryjudgment dismissing the complaint insofar as asserted against them (see Burtman v Brown, 97AD3d 156 [2012]; Wasserman v Staten Is. Radiological Assoc., 2 AD3d 713[2003]).
The Patel defendants established, prima facie, that they adhered to accepted practicesin their treatment of the decedent. Their expert cardiologist stated that the acceptedstandard of care was to keep patients on Plavix for one year following the placement ofstents. Thus, because the decedent's most recent stents had been placed three years beforehis scheduled kidney biopsy, he did [*3]not need to be onPlavix at the time of the incident. Notably, the expert also stated that "Plavix and aspirinretain approximately 70% of their effects three days after discontinuance."
The affirmation of the plaintiff's expert cardiologist, submitted in opposition, wasconclusory. He stated that the standard of care required Patel to keep the decedent onPlavix indefinitely, based upon Patel's decision to keep the decedent on Plavix. Thatexpert, however, failed to articulate what it was about the decedent's particular case thatrequired him to remain on Plavix three years after his stents were placed. He furtherfailed to articulate why a four-day interruption in the Plavix prescription would havebeen a danger to the decedent. In particular, he failed to respond to the statement of thePatel defendants' expert, that "Plavix and aspirin retain approximately 70% of theireffects three days after discontinuance." Thus, the plaintiff failed to raise a triable issueof fact as to whether the Patel defendants departed from to the accepted standard ofcare.
Therefore, the Supreme Court should have granted the Patel defendants' motion forsummary judgment dismissing the complaint insofar as asserted against them. Balkin,J.P., Austin, Sgroi and LaSalle, JJ., concur. [Prior Case History: 2014 NY Slip Op32341(U).]