| Colletti v Deutsch |
| 2017 NY Slip Op 04251 [150 AD3d 1196] |
| May 31, 2017 |
| Appellate Division, Second Department |
[*1]
| Paul Colletti et al., Appellants, v Ezra Deutsch, M.D.,et al., Respondents. |
Christopher S. Olson, Huntington, NY (Doreen J. Shindel of counsel), for appellants.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY (Christopher Simone ofcounsel), for respondents.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from ajudgment of the Supreme Court, Suffolk County (Molia, J.), entered July 22, 2014, which, uponan order of the same court dated March 5, 2014, granting the defendants' motion for summaryjudgment dismissing the complaint, is in favor of the defendants and against them dismissing thecomplaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff Paul Colletti (hereinafter the plaintiff) had a history of treatment for coronaryartery disease, including heart bypass surgery in 1988 and an angioplasty with theimplementation of drug eluting stents in 2005 that was performed by the defendant Ezra Deutsch,a partner at the defendant Suffolk Heart Group, LLP (hereinafter together the defendants).Following the angioplasty in 2005, the plaintiff had regular examinations and testing by Deutschto monitor his medications and cardiac health. At an appointment on December 6, 2006, theplaintiff sought clearance from Deutsch for a routine colonoscopy. At that time, Deutsch advisedhim that he was "cleared for a colonoscopy from a cardiac standpoint [and that] he may come offof aspirin for a few days in advance of his procedure."
The plaintiff subsequently scheduled the colonoscopy for July 25, 2007, but on July 21,2007, 3
The plaintiff, and his wife suing derivatively, commenced this medical malpractice actionagainst the defendants, alleging that Deutsch deviated from the proper standard of care byadvising the plaintiff to stop taking aspirin prior to the colonoscopy and that this caused him tosustain a heart attack with permanent damage to his heart. The defendants moved for summary[*2]judgment dismissing the complaint, relying upon theirexpert's affidavit, in which the expert opined that Deutsch's advice was appropriate and was notthe cause of the plaintiff's injury. In opposition, the plaintiffs argued that there were triable issuesof fact based on the opinions of their expert that Deutsch deviated from the proper standard ofcare and that this deviation caused permanent damage to the plaintiff. The Supreme Courtgranted the defendants' motion, and the complaint was dismissed.
"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. On a motion for summary judgment, adefendant has the burden of establishing the absence of any departure from good and acceptedmedical practice or that the plaintiff was not injured thereby" (Leavy v Merriam, 133 AD3d 636,637 [2015] [citations omitted]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Nichols v Stamer, 49 AD3d 832[2008]). "Expert testimony is necessary to prove a deviation from accepted standards of medicalcare and to establish proximate cause" (Lyons v McCauley, 252 AD2d 516, 517 [1998],citing Koehler v Schwartz, 48 NY2d 807 [1979]).
Here, the defendants established their prima facie entitlement to judgment as a matter of lawby submitting the affidavit of an expert physician who stated that, based on his review of themedical records, Deutsch did not deviate from accepted standards of medical care in advising theplaintiff in December 2006 to stop taking aspirin a few days prior to the colonoscopy. The expertphysician also opined that the care and treatment by the defendants did not proximately cause theplaintiff's injuries.
The plaintiff failed to raise a triable issue of fact in opposition to the defendants' prima facieshowing. The plaintiff submitted an illegibly signed and redacted expert affidavit that failed toidentify their expert. A redacted physician's affidavit should not be considered in opposition to amotion for summary judgment where the plaintiff does not offer an explanation for the failure toidentify the expert by name and does not tender an unredacted affidavit for in camera review.Such an affidavit is insufficient to raise a triable issue of fact (see Capobianco v Marchese, 125 AD3d 914, 916 [2015]; France v Packy, 121 AD3d 836[2014]; Derrick v North StarOrthopedics, PLLC, 121 AD3d 741 [2014]; Rose v Horton Med. Ctr., 29 AD3d 977, 978-979 [2006]). Theplaintiff did not submit an unredacted affidavit for the court to review, and did not offer anexplanation for his failure to identify the expert by name.
Accordingly, the Supreme Court properly granted the defendants' motion for summaryjudgment dismissing the complaint. Hall, J.P., Sgroi, Maltese and Duffy, JJ., concur.