Amsler v. Verrilli

• Decision Date: 28 April 1986
• Citation: 119 A.D.2d 786,501 N.Y.S.2d 411
• Parties: Suellen AMSLER, et al., Appellants, v. George VERRILLI, et al., Defendants, Peter A. O'Hara, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 411

501 N.Y.S.2d 411

119 A.D.2d 786

Suellen AMSLER, et al., Appellants, v.George VERRILLI, et al., DefendantsPeter A. O'Hara, Respondent.

Supreme Court, Appellate Division Second Department.

April 28, 1986.

Norman E. Frowley, New York City, for appellants.

Meiselman, Farber, Stella & Eberz, P.C., Poughkeepsie (Terry D. Horner and Myra I. Packman, of counsel), for respondent.

Before RUBIN, J.P., and LAWRENCE, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, the plaintiffs appeal from an order of the Supreme Court, Dutchess County(Juidice, J.), dated August 19, 1985, which granted the motion of the defendantPeter A. O'Hara for summary judgment dismissing the complaint as against him.

Order affirmed, with costs.

In May 1980the plaintiffSuellen Amsler felt a lump in her left breast which ultimately resulted in a modified radical mastectomy being performed in October 1980.She complains that she was referred to the defendant Dr. O'Hara on June 23, 1980, for mammographic studies which were found to be normal.Dr. O'Hara is charged with malpractice in failing to properly interpret the x-rays, in that the views were inadequate, and in that Dr. O'Hara did not personally physically examine her.Dr. O'Hara's sole participation was to review the four x-ray films taken by technicians.

In opposition to Dr. O'Hara's motion for summary judgment, the plaintiff submitted, inter alia, an affidavit by Dr. Martin Lehman, a radiologist.A liberal reading of Dr. Lehman's somewhat equivocal affidavit reveals, arguably, an opinion that Dr. O'Hara's conduct in not personally examining the plaintiffSuellen Amsler fell below the requisite standard of care.Totally absent from this affidavit, however, is any indication that this alleged departure by Dr. O'Hara was a proximate cause of any injury or damage to the plaintiffSuellen Amsler.

In opposing a motion for summary judgment, the plaintiffs were required to lay bare their proof (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;Arrants v. Dell Angelo, 73 A.D.2d 633, 422 N.Y.S.2d 761) and to "show facts sufficient to require a trial of any issue of fact"(Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298;CPLR 3212[b] ).

The requisite elements of proof in a medical malpractice case are (1) a deviation or departure from accepted practice and (2) evidence that such departure was a proximate cause of injury or damage.In Kletnieks v. Brookhaven Mem. Assn., 53 A.D.2d 169, 176, 385 N.Y.S.2d 575, the rule was stated as follows:

"Clearly, on a trial of a medical malpractice action, as in any negligence action, a verdict finding liability can be sustained only if the proof adequately demonstrates that the negligence claimed (i.e. the 'departure') is the 'proximate cause' of the injuries sustained (see, Foley v. Gillick, 39 A.D.2d 546;Woods v. Pisillo, 35 A.D.2d 597;Peloro v. Abbondante, 35 A.D.2d 561;cf.Sherman v. Concourse Realty Corp., 47 A.D.2d 134) )."

In laying bare their proof in a medical malpractice case, the plaintiffs are required to provide an affidavit of merit by a medical expert.The failure to submit an affidavit by a medical expert competent to attest to the meritorious nature of the plaintiffs' claim requires dismissal of the complaint (see, Reed v. Friedman, App.Div., 498 N.Y.S.2d 399;see also, Salch v. Paratore, 60 N.Y.2d 851, 470 N.Y.S.2d 138, 458 N.E.2d 379;Canter v. Mulnick, 60 N.Y.2d 689, 468 N.Y.S.2d 462, 455 N.E.2d 1257;Stolowitz v. Mt. Sinai Hosp., 60 N.Y.2d 685, 468 N.Y.S.2d 460, 455 N.E.2d 1255;Wind v. Cacho, 111 A.D.2d 808, 490...