Aaron v. Raber

• Decision Date: 18 November 2020
• Docket Number: 2019–00965,Index No. 61703/14
• Citation: Aaron v. Raber, 188 A.D.3d 967, 136 N.Y.S.3d 114 (N.Y. App. Div. 2020)
• Parties: Estelle AARON, et al., plaintiffs, v. Eugene RABER, etc., appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 967

136 N.Y.S.3d 114

Estelle AARON, et al., plaintiffs,

v.Eugene RABER, etc., appellant, et al., defendants.

2019–00965

Index No. 61703/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 24, 2020

November 18, 2020

Vardaro & Associates, LLP, Smithtown, N.Y. (Kelly L. Nagosky of counsel), for appellant.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Eugene Raber appeals from an order of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), dated December 7, 2018. The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the motion of the defendant Eugene Raber for summary judgment dismissing the complaint insofar as asserted against him is granted.

The plaintiff Estelle Aaron (hereinafter the plaintiff) fractured her right femur, after which she underwent corrective surgery in March 2013. On April 12, 2013, the plaintiff voluntarily transferred from the Gurwin Jewish Nursing & Rehabilitation Center to the Glen Cove Center for Nursing & Rehabilitation (hereinafter Glen Cove). The plaintiff was wearing a removable, rigid right leg brace when she was transferred. At a follow-up appointment on May 13, 2013, the plaintiff's orthopedic surgeon found the plaintiff's right knee had become stiff and impossible to bend. The plaintiff was discharged from Glen Cove on May 15, 2013.

The plaintiff commenced this action in March 2014, inter alia, to recover damages for medical malpractice in failing to properly rehabilitate her right knee. The Supreme Court denied the motion of the defendant Eugene Raber, a physician specializing in internal medicine who treated the plaintiff at Glen Cove, for summary judgment dismissing the complaint insofar as asserted against him. Raber appeals.

"In order to establish liability for medical malpractice, a plaintiff must prove that the defendant deviated or departed from accepted community standards of practice and that such departure was a proximate cause of the plaintiff's injuries.

On a motion for summary judgment, a defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" ( Novick v. South Nassau Communities Hosp., 136 A.D.3d 999, 1000, 26 N.Y.S.3d 182 [internal quotation marks omitted]; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).

Raber established his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him through evidence that he did not depart from good and accepted medical practice in his treatment of the plaintiff. "Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient" ( Burns v. Goyal, 145 A.D.3d 952, 954, 44 N.Y.S.3d 180, mod 30 N.Y.3d 956, 64 N.Y.S.3d 659, 86 N.E.3d 551 ).

Here, Raber testified at his deposition that he is trained only in internal medicine, and was the plaintiff's internist while she was at Glen Cove. Raber established that he was not the plaintiff's physical or occupational therapist and was not involved in the plaintiff's physical therapy plan of care. Physical therapists (see Education Law §§ 6731, 6732 ) must be educated and licensed in that specific field (see Education Law § 6734 ), and Raber had no such training. Occupational therapists must similarly be educated and licensed in their field (see Education Law § 7904 ). Raber's medical expert opined that Raber's training as an internal medicine specialist did not encompass the skills and knowledge required to assess a patient's physical therapy needs, create a physical therapy plan of care, or supervise a physical therapy plan of care.

Physical therapy...