Barnett v. Fashakin

• Decision Date: 14 June 2011
• Citation: 925 N.Y.S.2d 168,2011 N.Y. Slip Op. 05212,85 A.D.3d 832
• Parties: Rosemarie BARNETT, appellant,v.Emmanuel FASHAKIN, etc., et al., respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 832

925 N.Y.S.2d 168

2011 N.Y. Slip Op. 05212

Rosemarie BARNETT, appellant,

v.Emmanuel FASHAKIN, etc., et al., respondents, et al., defendant.

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

June 14, 2011.

Anthony J. Scaffidi, New York, N.Y. (Robert M. Marino of counsel), for appellant.Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Dan Ratner and Daryl Paxson of counsel), for respondents.JOSEPH COVELLO, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), entered May 28, 2010, as granted those branches of the motion of the defendants Emmanuel Fashakin, Surinder Malhotra, July Morbeth, Hiu Lam Ng, Nadia Younus, and Alpha–K Family Medical Practice, P.C., which were for summary judgment dismissing so much of the complaint as sought to recover damages for medical malpractice insofar as asserted against them and as sought to recover damages for lack of informed consent insofar as asserted against the defendant Surinder Malhotra, and (2) so much of a judgment of the same court entered July 8, 2010, as, upon the order, is in favor of the defendants Emmanuel Fashakin, Surinder Malhotra, July Morbeth, Hiu Lam Ng, Nadia Younus, and Alpha–K Family Medical Practice, P.C., and against her dismissing so much of the complaint as sought to recover damages for medical malpractice insofar as asserted against those defendants and as sought to recover damages for lack of informed consent insofar as asserted against the defendant Surinder Malhotra.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed insofar as appealed from, on the law, those branches of the motion of the defendants Emmanuel Fashakin, Surinder Malhotra, July Morbeth, Hiu Lam Ng, Nadia Younus, and Alpha–K Family Medical Practice, P.C., which were for summary judgment dismissing so much of the complaint as sought to recover damages for medical malpractice insofar as asserted against them and as sought to recover damages for lack of informed consent insofar as asserted against the defendant Surinder Malhotra are denied, and the order entered May 28, 2010, is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment entered July 8, 2010 ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a] [1] ).

The defendant physician Emmanuel Fashakin is the owner of the defendant Alpha–K Family Medical Practice, P.C. (hereinafter Alpha–K), and the defendant physician assistants July Morbeth, Hiu Lam Ng, and Nadia Younus were employed by Alpha–K during the relevant time period. In January 2005, the plaintiff began receiving treatment from Alpha–K for complaints including nasal congestion and upper respiratory infection. In February 2005, the plaintiff met with the defendant Surinder Malhotra, an otolaryngologist who is not a member of Alpha–K, and she ultimately decided to have Malhotra perform sinus surgery. Malhotra performed the sinus surgery on April 22, 2005, and removed packing materials from the plaintiff's nose on the following day. After having the packing removed, the plaintiff never saw Malhotra again.

After her sinus surgery, the plaintiff continued to receive medical treatment from Alpha–K for various complaints. According to the plaintiff, in September 2006, she went to Alpha–K complaining of “typical postnasal drip” and also that a thin, clear water-like fluid was flowing from her nose. She was prescribed medication and referred to an allergist. On her final visit to Alpha–K in November 2006, she complained of frontal sinus pain and nasal congestion when she bent forward.

According to the plaintiff, she was hospitalized with meningitis in April 2007, and was subsequently diagnosed with a hole in her cribriform plate, a bone which separates the sinus cavity from the brain, and leakage of cerebral spinal fluid (hereinafter CSF) from that hole. In August 2007, the plaintiff underwent surgery to address “a large anterior skull base defect” and the CSF leak. Thereafter, she commenced this action, inter alia, to recover damages for medical malpractice and lack of informed consent. In her bills of particulars, the plaintiff alleged, among other things, that Malhotra had deviated from accepted standards of medical practice by perforating her cribriform plate during the sinus surgery, and that the defendants' deviations from the accepted standards of medical practice had caused her to develop meningitis.

Fashakin, Morbeth, Ng, Younus, Alpha–K (hereinafter collectively the Alpha–K defendants), and Malhotra moved together, inter alia, for summary judgment dismissing so much of the complaint as sought to recover damages for medical malpractice insofar as asserted against them and as sought to recover damages for lack of informed consent insofar as asserted against Malhotra. The Supreme Court, among other things, granted the aforementioned branches of their motion. We reverse the judgment insofar as appealed from.

The Supreme Court improperly granted that branch of the motion of the Alpha–K defendants and Malhotra (hereinafter collectively the defendants) which was to dismiss so much of the complaint as sought to recover damages for medical malpractice insofar as asserted against them. “The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury” ( DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674; see Guzzi v. Gewirtz, 82 A.D.3d 838, 918 N.Y.S.2d 552). Thus, on a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby ( see Wexelbaum v. Jean, 80 A.D.3d 756, 757, 915 N.Y.S.2d 161; Roca v. Perel, 51 A.D.3d 757, 758–759, 859 N.Y.S.2d 203). “[T]o defeat summary judgment, the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie showing” ( Stukas v....