Bendel v. Rajpal

• Decision Date: 05 December 2012
• Citation: 2012 N.Y. Slip Op. 08272,101 A.D.3d 662,955 N.Y.S.2d 187
• Parties: Sigalit BENDEL, appellant, v. Sanjeev RAJPAL, etc., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 662

955 N.Y.S.2d 187

2012 N.Y. Slip Op. 08272

Sigalit BENDEL, appellant,

v.Sanjeev RAJPAL, etc., et al., respondents, et al., defendants.

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

Dec. 5, 2012.

Bruce G. Clark & Associates, P.C., Port Washington, N.Y. (Peter L. Gale and Diane C. Cooper of counsel), for appellant.

Maimone & Associates, PLLC, Mineola, N.Y. (Leland N. Garbus of counsel), for respondents.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SYLVIA HINDS–RADIX, JJ.

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated May 3, 2011, which granted the motion of the defendants Sanjeev Rajpal and Class Surgery Brooklyn Group, P.C., for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

During a physical examination on June 22, 2005, the defendant Sanjeev Rajpal, a medical doctor, detected a mass in the plaintiff's right breast. After a sonogram was performed on June 30, 2005, and after subsequent office visits with Rajpal on July 5, 2005, and September 6, 2005, the plaintiff scheduled an excision and biopsy of the mass for September 23, 2005. However, she later cancelled the appointment and did not return for an office visit with Rajpal until November 29, 2005. After receiving the results from a subsequent sonogram which was performed on December 15, 2005, Rajpal performed an excision of the mass on January 9, 2006. The results of a biopsy revealed that the mass was cancerous and the plaintiff sought treatment elsewhere, ultimately undergoing chemotherapy and a right total mastectomy.

The plaintiff commenced this action to recover damages for medical malpractice against, among others, Rajpal and her medical practice, the defendant Class Surgery Brooklyn Group, P.C. (hereinafter together the respondents). In an amended verified bill of particulars, the plaintiff alleged that Rajpal departed from accepted standards of medical care in failing to recommend a mammogram, as opposed to a sonogram, as an initial diagnostic test on June 22, 2005, and, after receiving the results of the sonogram, delaying in performing an excision of the mass detected in her right breast. The respondents moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the motion.

“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 Hayden v. Gordon, 91 A.D.3d 819, 820, 937 N.Y.S.2d 299;Guzzi v. Gewirtz, 82 A.D.3d 838, 918 N.Y.S.2d 552). On a motion for summary judgment, a defendant physician “ must make a prima facie showing that there was no departure from good and accepted medical practice or that the plaintiff was not injured thereby” ( Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176;see Gillespie v. New York Hosp. Queens, 96 A.D.3d 901, 947 N.Y.S.2d 148;Healy v. Damus, 88 A.D.3d 848, 849, 931 N.Y.S.2d 243;Heller v. Weinberg, 77 A.D.3d 622, 622–623, 909 N.Y.S.2d 477). “In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's [complaint and] bill of particulars” ( Wall v. Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 1045, 912 N.Y.S.2d 77;see Grant v. Hudson Val. Hosp. Ctr., 55 A.D.3d 874, 866 N.Y.S.2d 726;Terranova v. Finklea, 45 A.D.3d 572, 845 N.Y.S.2d 389;Ticali v. Locascio, 24 A.D.3d 430, 431, 804 N.Y.S.2d 688). Once a defendant has made such a showing, the burden shifts to the plaintiff to “submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician” ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572), but only as to those elements on which the defendant met the prima facie burden ( see Gillespie v. New York Hosp. Queens, 96 A.D.3d 901, 947 N.Y.S.2d 148;Garrett v. University Assoc. in Obstetrics & Gynecology, P.C., 95 A.D.3d 823, 825, 944 N.Y.S.2d 197;Stukas v. Streiter, 83 A.D.3d at 23–24, 918 N.Y.S.2d 176).

Conclusory statements set forth in an affirmation of a medical expert which do not refute or address the specific allegations of negligence made by the plaintiff in his or her complaint and bill of particulars are insufficient to make a prima facie showing that a defendant physician is entitled to judgment as a matter of law ( see Faicco v. Golub, 91 A.D.3d 817, 818, 938 N.Y.S.2d 105;Wall v. Flushing Hosp. Med. Ctr., 78 A.D.3d at 1045, 912 N.Y.S.2d 77;Kuri v. Bhattacharya, 44 A.D.3d 718, 842 N.Y.S.2d 734;Berkey v. Emma, 291 A.D.2d 517, 518, 738 N.Y.S.2d 250). Similarly, “[g]eneral allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat a defendant's motion for summary judgment” ( Bezerman v. Bailine, 95 A.D.3d 1153, 1154, 945 N.Y.S.2d 166;see Gillespie v. New York Hosp. Queens, 96 A.D.3d 901, 947 N.Y.S.2d 148;Lau v. Wan, 93 A.D.3d 763, 765, 940 N.Y.S.2d 662;Savage v. Quinn, 91 A.D.3d 748, 749, 937 N.Y.S.2d 265).

Here, the respondents made a prima facie showing of their entitlement to judgment as a matter of law. The expert affidavit submitted in support of their motion for summary judgment established that Rajpal did not depart from accepted standards of medical practice in recommending that the plaintiff undergo a sonogram, as opposed to a mammogram, on June 22, 2005 ( see DiGiaro v. Agrawal, 41 A.D.3d 764, 767, 839...