| Kerrins v South Nassau Communities Hosp. |
| 2017 NY Slip Op 01683 [148 AD3d 795] |
| March 8, 2017 |
| Appellate Division, Second Department |
[*1]
| Richard Kerrins, Public Administrator for the Estates ofKonstantine Papadopolous and Another, Deceased, Appellant, v South NassauCommunities Hospital et al., Respondents, et al., Defendants. |
Revellino & Byczek, LLP, Lake Success, NY (Anthony Mahoney of counsel), forappellant.
Bartlett, McDonough & Monaghan, LLP, Mineola, NY (Robert G. Vizza of counsel),for respondent South Nassau Communities Hospital.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY (Christopher Simone and JuanC. Gonzalez of counsel), for respondent Monte Nussbaum.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc.,the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court,Nassau County, (Cozzens Jr., J.), dated September 16, 2014, as granted the separate motions ofthe defendants South Nassau Communities Hospital and Monte Nussbaum which were forsummary judgment dismissing the complaint insofar as asserted against each of them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
In August 2002, the plaintiff's decedent, a 42-year-old man who suffered from multiplehealth issues, including renal failure and morbid obesity, underwent total left knee replacementsurgery. The surgery was completed without issue. The decedent was monitored by nursing staffovernight and was, at all pertinent times, in stable condition. However, at 6:20 a.m. the next day,a nurse found him unresponsive, and he was declared dead shortly thereafter. The MedicalExaminer determined the cause of death to be "hypertrophic cardiomyopathy" due to"hypertensive and arteriosclerotic cardiovascular disease."
The decedent's wife, individually and as administratrix of the decedent's estate, commencedthis action to recover damages for medical malpractice, wrongful death, and loss of servicesagainst, among others, the defendant South Nassau Communities Hospital (hereinafter thehospital), where the surgery took place, and the defendant Monte Nussbaum, the decedent'sprimary care physician who had cleared the decedent for surgery. The decedent's wife died in2006 and this action was stayed for several years. In 2011, upon receiving letters of temporaryadministration, the Public Administrator was substituted as the plaintiff. In 2014, all of thedefendants separately moved for summary judgment dismissing the complaint insofar as assertedagainst each of them. The [*2]Supreme Court granted each oftheir motions. The plaintiff appeals, as limited by his brief, from so much of the order as grantedthe separate motions of the hospital and Nussbaum.
"In order to establish liability for medical malpractice, a plaintiff must prove that thedefendant deviated or departed from accepted community standards of practice and that suchdeparture was a proximate cause of the plaintiff's injuries" (Leavy v Merriam, 133 AD3d 636, 637 [2015]; see Reilly v Cohen, 121 AD3d961, 962 [2014]; Stukas vStreiter, 83 AD3d 18, 23 [2011]). "On a motion for summary judgment, a defendant hasthe burden of establishing the absence of any departure from good and accepted medical practiceor that the plaintiff was not injured thereby" (Leavy v Merriam, 133 AD3d at 637; see Salvia v St. Catherine of Sienna Med.Ctr., 84 AD3d 1053, 1053-1054 [2011]). "In response, the plaintiff need only raise atriable issue of fact regarding 'the element or elements on which the defendant has made its primafacie showing' " (McCarthy vNorthern Westchester Hosp., 139 AD3d 825, 826 [2016], quoting Mitchell v Grace Plaza of Great Neck,Inc., 115 AD3d 819, 819 [2014]). "General allegations that are conclusory andunsupported by competent evidence tending to establish the essential elements of medicalmalpractice are insufficient to defeat a defendant's motion for summary judgment" (Bezerman v Bailine, 95 AD3d1153, 1154 [2012]).
Here, the hospital and Nussbaum each established their prima facie entitlement to judgmentas a matter of law by submitting expert affirmations which demonstrated that neither departedfrom the accepted standard of care in their respective treatment of the plaintiff (see Leto v Feld, 131 AD3d 590,591 [2015]; Matos v Khan, 119AD3d 909, 910 [2014]; Poter vAdams, 104 AD3d 925, 926 [2013]; Shields v Kleiner, 93 AD3d 710, 712 [2012]). Specifically,Nussbaum submitted the affirmation of an expert who opined that, based on the results ofpre-surgical tests that the decedent underwent shortly before the surgery, Nussbaum appropriatelyprovided medical clearance for the decedent to undergo the left knee replacement procedure. Thehospital submitted an affirmation of an expert which established that the hospital's employees didnot depart from the applicable standards of care in treating the decedent, prescribingpostoperative pain medication, and monitoring his condition after surgery. In opposition, theplaintiff failed to raise a triable issue of fact as to a departure from the applicable standard of careby either the hospital or Nussbaum. The affirmation of the plaintiff's expert failed to addressspecific assertions made by the hospital's and Nussbaum's experts, and was otherwise conclusory,speculative, and unsupported by the evidence (see Berthen v Bania, 121 AD3d 732, 733 [2014]; Ahmed v Pannone, 116 AD3d 802,806 [2014]; Rivers v Birnbaum, 102AD3d 26, 44 [2012]; Forrest vTierney, 91 AD3d 707, 709 [2012]). Accordingly, the Supreme Court properly grantedthe separate motions of the hospital and Nussbaum for summary judgment dismissing thecomplaint insofar as asserted against each of them. Hall, J.P., Miller, Connolly and BrathwaiteNelson, JJ., concur.