Alvarez v. Prospect Hosp.

Decision Date11 November 1986
Citation501 N.E.2d 572,508 N.Y.S.2d 923,68 N.Y.2d 320
Parties, 501 N.E.2d 572 Maria ALVAREZ, Respondent, v. PROSPECT HOSPITAL et al., Defendants, and Jesse D. Stark, Appellant. (And a Third-Party Action.)
CourtNew York Court of Appeals Court of Appeals

Patricia D'Alvia and James B. Reich, New York City, for appellant.

Mitchell D. Kessler and Aaron J. Broder, New York City, for respondent.



In this medical malpractice action, the Appellate Division has affirmed Supreme Court's denial of defendant Stark's motion for summary judgment and has granted leave to appeal to this court on the certified question: "Was the order of Supreme Court, as affirmed by this Court, properly made?" For the reasons that follow, we reverse the order of the Appellate Division, grant defendant Stark's motion for summary judgment, and answer the certified question in the negative.

Plaintiff Maria Alvarez was admitted to Prospect Hospital twice in 1978 and twice in 1979, each time complaining of abdominal pain. Dr. Stark, as the chief of radiology at the hospital, interpreted several radiological studies performed on plaintiff during these visits. As relevant here, during plaintiff's second visit to the hospital in 1978, Dr. Stark interpreted a barium enema X ray as revealing "cecal neoplasm" of the cecum of the colon, and so indicated in his written report transmitted to plaintiff's attending physician. Plaintiff was discharged from the hospital a short time later with a diagnosis of gastroenteritis. During plaintiff's second visit in 1979, Dr. Stark again interpreted a barium enema X ray of the plaintiff and again made a finding of "cecal neoplasm", which was indicated in his written report again transmitted to plaintiff's attending physician. A short time later, plaintiff underwent surgery to remove a malignant growth in her colon.

This action was thereafter commenced against the hospital and nine physicians, including Dr. Stark. Plaintiff's amended complaint alleges, in general and unparticularized terms, that the medical care and treatment rendered by each defendant "was so negligent, reckless and careless as to constitute the * * * care and treatment as negligence, carelessness, recklessness, misfeasance, malfeasance and malpractice". In her bill of particulars, plaintiff alleged that she was unable to state with exactitude which specific negligent acts were performed by each particular defendant but claimed that "defendants violated every known medical standard in existence at the time of plaintiff's care and treatment" and in over three pages of boilerplate allegations described acts and omissions constituting medical malpractice. Plaintiff relied almost entirely upon Dr. Stark's reports indicating the presence of a cecal neoplasm in order to establish her claim of malpractice for "failing to discover and/or treat the nature and cause of lesions and/or irregularities noted in barium enemas", "failing to explain, attempt to explain, or perform tests, procedures, examinations, and/or surgery which would have explained the inconsistency between the normal colonoscopic examination of plaintiff and the lesions and/or irregularities noted upon the barium enema(s) performed" and "failing to determine the origin, nature and/or cause of a lesion which was found in a barium enema".

Following completion of his examination before trial, Dr. Stark moved for summary judgment, including in his motion papers an affirmation of his attorney, to which were attached the relevant hospital records and portions of his deposition testimony. The attorney's affirmation pointed out that plaintiff had adopted Dr. Stark's interpretations of the barium enema X rays as the basis for her claim against the other defendants that there was a failure to diagnose the cecal neoplasm at an early stage of her treatment. Counsel argued that because plaintiff had not alleged in either her complaint or bill of particulars that Dr. Stark's interpretation of the X rays was erroneous or incomplete, judgment as a matter of law was warranted. It was argued that the hospital records supported the conclusion that Dr. Stark had made a timely and accurate diagnosis which formed the basis for plaintiff's allegations of malpractice against her treating doctors. Dr. Stark's deposition testimony asserted that his diagnosis was correct and that, as a radiologist, he is not required to treat patients and indeed never performed a physical examination on the plaintiff.

In an attorney's affidavit submitted in opposition to the motion, plaintiff contended that there were issues of fact as to whether Dr. Stark, after having interpreted the radiological studies ordered by the treating physicians, should have discussed such results with the treating physicians and should have monitored the plaintiff's condition to insure that the treating physicians dealt properly with the plaintiff's condition. Supreme Court denied defendant's motion for summary judgment, finding that questions of fact had been raised concerning the duty, if any, of the defendant with respect to the plaintiff's treatment. A divided Appellate Division affirmed (115 A.D.2d 444, 496 N.Y.S.2d 1006). We now reverse.

As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Center, supra, 64 N.Y.2d at p. 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v. City of New York, supra, 49 N.Y.2d at p. 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). In a medical malpractice action, a plaintiff, in opposition to a defendant physician's summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact (Fileccia v. Massapequa Gen. Hosp., 63 N.Y.2d 639, 479 N.Y.S.2d 520, 468 N.E.2d 702, affg. 99 A.D.2d 796, 472 N.Y.S.2d 127; Neuman v. Greenstein, 99 A.D.2d 1018, 473 N.Y.S.2d 806; Buonagurio v. Drago, 65 A.D.2d 830, 409 N.Y.S.2d 835, lv. denied 46 N.Y.2d 708, 414 N.Y.S.2d 1026, 386 N.E.2d 1337). General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment motion (Fileccia v. Massapequa Gen. Hosp., supra; Bustamonte v. Koval, 98 A.D.2d 739, 469 N.Y.S.2d 441; Pan v. Coburn, 95 A.D.2d 670, 463 N.Y.S.2d 223; Himber v. Pfizer Labs., 82 A.D.2d 776, 440 N.Y.S.2d 649; Baldwin v. Gretz, 65 A.D.2d 876, 410 N.Y.S.2d 394).

On this record, defendant's submissions in support of his motion for summary judgment satisfy the prima facie showing required to warrant judgment as a matter of law if not rebutted by the plaintiff. A fair reading of the attorney's affirmation, the hospital records and the defendant's deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant's supporting proof was placed before the court by way of an attorney's affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion (Olan v. Farrell Lines, 64 N.Y.2d 1092, 1093, 489 N.Y.S.2d 884, 479 N.E.2d 229). Dr. Stark's deposition testimony is supported by the hospital records and rebuts with factual proof plaintiff's claim of malpractice and thus is sufficient proof that he properly and timely diagnosed the plaintiff's...

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