| Keun Young Kim v Lenox Hill Hosp. |
| 2017 NY Slip Op 08818 [156 AD3d 774] |
| December 20, 2017 |
| Appellate Division, Second Department |
[*1]
| Keun Young Kim, as Administrator of the Estate of Okja Shim,Deceased, Appellant, v Lenox Hill Hospital et al., Respondents, et al.,Defendants. |
Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellant.
Martin Clearwater & Bell LLP, New York, NY (Barbara D. Goldberg and Nancy J.Block of counsel), for respondents.
Appeal from an order of the Supreme Court, Queens County (Peter J. O'Donoghue, J.), datedJuly 28, 2015. The order, insofar as appealed from, granted that branch of the motion of thedefendants Lenox Hill Hospital and Parswa Ansari which was for summary judgment dismissingthe cause of action alleging medical malpractice insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
In April 2010, the plaintiff's decedent, a 65-year-old woman who had a complicated medicalhistory involving serious cardiovascular issues, underwent surgery to repair two aortic aneurysmsin her abdomen. After the surgery, blood circulation issues arose in the decedent's bowel and,over the next two months, she underwent seven follow-up surgeries. The decedent's conditiondeteriorated over the course of the hospitalization, and she died on July 10, 2010.
The plaintiff commenced this action, inter alia, to recover damages for medical malpracticeagainst, among others, the defendant Lenox Hill Hospital (hereinafter the hospital), where thedecedent received the treatment at issue, and the defendant Parswa Ansari, one of the colorectalsurgeons who treated the decedent. After discovery, the hospital and Ansari (hereinafter togetherthe defendants) moved, inter alia, for summary judgment dismissing the cause of action allegingmedical malpractice insofar as asserted against them. The Supreme Court granted that branch ofthe defendants' motion, and the plaintiff appeals.
" 'In order to establish liability for medical malpractice, a plaintiff must prove thatthe defendant deviated or departed from accepted community standards of practice and that suchdeparture was a proximate cause of the plaintiff's injuries' " (Kerrins v South Nassau CommunitiesHosp., 148 AD3d 795, 796 [2017], quoting Leavy v Merriam, 133 AD3d 636, 637 [2015]; see Donnelly v Parikh, 150 AD3d820, 822 [2017]; Reilly vCohen, 121 AD3d 961, 962 [2014]; Berthen v Bania, 121 AD3d 732, 733 [2014]; Stukas v Streiter, 83 AD3d 18, 23[2011]). "On a motion for summary judgment, a defendant has the burden of establishing theabsence of any departure from good and accepted medical practice or that [*2]the plaintiff was not injured thereby" (Leavy v Merriam,133 AD3d at 637; see Bowe v BrooklynUnited Methodist Church Home, 150 AD3d 1067, 1068 [2017]; Whitnum v Plastic & ReconstructiveSurgery, P.C., 142 AD3d 495, 497 [2016]; Aronov v Soukkary, 104 AD3d 623, 624 [2013]). "In opposition,the plaintiff must demonstrate the existence of a triable issue of fact as to the elements on whichthe defendant has met his or her initial burden" (Bowe v Brooklyn United Methodist ChurchHome, 150 AD3d at 1068; see Letov Feld, 131 AD3d 590, 591 [2015]; Matos v Khan, 119 AD3d 909, 910 [2014]; Stukas vStreiter, 83 AD3d at 24). " 'General allegations that are conclusory and unsupportedby competent evidence tending to establish the essential elements of medical malpractice areinsufficient to defeat a defendant's motion for summary judgment' " (Kerrins v SouthNassau Communities Hosp., 148 AD3d at 796, quoting Bezerman v Bailine, 95 AD3d 1153, 1154 [2012]; see Spiegel v Beth Israel Med. Ctr.-KingsHwy. Div., 149 AD3d 1127, 1128 [2017]).
Here, the defendants established their prima facie entitlement to judgment as a matter of lawthrough the submission of an affirmation by an expert in colorectal surgery, the decedent'shospital chart, and the transcripts of deposition testimony. Through this evidence, the defendantsestablished, prima facie, that they did not depart from the applicable standard of care and, in anyevent, that any alleged departures were not a proximate cause of the decedent's death (seeBowe v Brooklyn United Methodist Church Home, 150 AD3d at 1068; Whitnum vPlastic & Reconstructive Surgery, P.C., 142 AD3d at 497; Leto v Feld, 131AD3d at 591; Matos v Khan, 119 AD3d at 910; Aronov v Soukkary, 104 AD3d at624; Bezerman v Bailine, 95 AD3d at 1154). In opposition, the plaintiff failed to raise atriable issue of fact. The affirmation of the plaintiff's expert failed to address specific assertionsmade by the defendants' expert concerning their alleged departures from accepted medicalpractice, and was otherwise conclusory, speculative, and unsupported by the evidence (seeBowe v Brooklyn United Methodist Church Home, 150 AD3d at 1068; Kerrins v SouthNassau Communities Hosp., 148 AD3d at 796-797; Niedra v Mt. Sinai Hosp., 129 AD3d 801, 803 [2015]; Ahmed v Pannone, 116 AD3d 802,806 [2014]). In any event, the plaintiff's expert failed to raise a triable issue of fact as to whetherthe alleged departures were a proximate cause of the decedent's death (see Spiegel v BethIsrael Med. Ctr.-Kings Hwy. Div., 149 AD3d at 1128; Berthen v Bania, 121 AD3d at733; Bezerman v Bailine, 95 AD3d at 1154). Accordingly, the Supreme Court properlygranted that branch of the defendants' motion which was for summary judgment dismissing thecause of action alleging medical malpractice insofar as asserted against them.
In light of our determination, the plaintiff's remaining contention need not be reached.Balkin, J.P., Maltese, Barros and Connolly, JJ., concur.