Braxton v. Erie Cnty. Med. Ctr. Corp.

• Decision Date: 04 August 2022
• Docket Number: 545,CA 21-00799
• Citation: 208 A.D.3d 1038,173 N.Y.S.3d 757
• Parties: John M. BRAXTON, as Administrator of the Estate of Sheila M. Braxton, Deceased, Plaintiff-Appellant, v. ERIE COUNTY MEDICAL CENTER CORPORATION, et al., Defendants, and Kaleida Health, doing business as Buffalo General Hospital, Defendant-Respondent. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 1038

173 N.Y.S.3d 757

John M. BRAXTON, as Administrator of the Estate of Sheila M. Braxton, Deceased, Plaintiff-Appellant,

v. ERIE COUNTY MEDICAL CENTER CORPORATION, et al., Defendants,andKaleida Health, doing business as Buffalo General Hospital, Defendant-Respondent. (Appeal No. 1.)

545

CA 21-00799

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

Entered: August 4, 2022

LAW OFFICE OF J. MICHAEL HAYES, BUFFALO (J. MICHAEL HAYES OF COUNSEL), FOR PLAINTIFF-APPELLANT.

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (JOHN PATRICK DANIEU OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying those parts of the motion of defendant Kaleida Health, doing business as Buffalo General Hospital, with respect to the claims and cross claims against it based on the alleged failure of defendant Andrew Poreda, M.D. to document the medical record of plaintiff's decedent, request a neurological consult, order appropriate lab studies, properly monitor decedent's symptoms, and appropriately respond to decedent's complaints, signs, and symptoms; based on the alleged failure of defendant Joseph Riedy Jr., D.O. to document the medical record, consult with decedent's primary care physician, order diagnostic films earlier, request a neurological or other consult earlier, and order appropriate lab work; and based on the alleged negligence of Kaleida Health's other staff members, excluding Andrew Poreda, M.D., Joseph Riedy Jr., D.O., Samir A. Bute, M.D., and Nida Arabi, M.D., and reinstating those claims and cross claims to that extent, and as modified the order is affirmed without costs.

Memorandum: Plaintiff's decedent commenced this action seeking damages for injuries that she allegedly sustained as a result of defendants’ negligence in failing to diagnose and treat a cervical abscess. Thereafter, defendants Kaleida Health, doing business as Buffalo General Hospital (Kaleida), Andrew Poreda, M.D. and University Emergency Medical Services, Inc. (UEMS), and Erie County Medical Center Corporation (ECMC) filed motions for summary judgment dismissing the amended complaint and cross claims against them. Defendant Joseph Riedy Jr., D.O. moved for summary judgment dismissing the amended complaint against him.

In appeal No. 1, plaintiff appeals from an order that, inter alia, granted the motion of Kaleida with respect to the claims and cross claims against it based on Poreda's alleged failure to document decedent's medical record, request a neurological consult, order appropriate lab studies, properly monitor decedent's symptoms, and appropriately respond to decedent's complaints, signs, and symptoms (Kaleida-Poreda claims); and based on Riedy's alleged failure to document the medical record, consult with decedent's primary care physician, order diagnostic films earlier, request a neurological or other consult earlier, and order appropriate lab work (Kaleida-Riedy claims). The order also granted the motion with respect to the claims and cross claims against Kaleida based upon the alleged negligence of Samir A. Bute, M.D. and Nida Arabi, M.D., inasmuch as those doctors never treated decedent (Bute-Arabi claims), and based upon the alleged negligence of Kaleida's other staff, excluding Bute, Arabi, Poreda and Riedy (Kaleida staff claims). In appeal No. 2, plaintiff appeals from an order that, inter alia, granted the motion of Poreda and UEMS with respect to those claims and cross claims against them related to Poreda's alleged failure to consult with decedent's family members, because that contention was not contained within the bill of particulars and amended complaint; and Poreda's alleged failure to review a report of November 18, 2013, order a neurological consult, order appropriate lab studies, and monitor decedent's vitals, because plaintiff's experts failed to address those allegations, which were set forth in the bill of particulars (UEMS-Poreda claims). The order also granted that motion with respect to claims and cross claims against UEMS based upon the actions of Riedy inasmuch as Riedy was not employed by UEMS (UEMS-Riedy claims). The order further granted the motion with respect to claims and cross claims against UEMS based on the alleged negligence of its other staff members (i.e., those other than Poreda and Riedy) related to decedent's care in November 2013 because, inter alia, plaintiff failed to connect the alleged negligent acts to a specific employee in the bill of particulars and the amended complaint, and because the allegations made by plaintiff's emergency medicine expert regarding the negligent acts of unnamed actors—such as the failure to read decedent's CT scan of November 13 and to order a urinalysis or ultrasound on November 15—were not contained within the bill of particulars and the amended complaint (UEMS staff claims). In appeal No. 3, plaintiff appeals from an order that denied Riedy's motion and, in appeal No. 4, plaintiff appeals from an order that granted ECMC's motion.

Inasmuch as the order in appeal No. 3 denied Riedy's motion, plaintiff is not aggrieved by that order (see Benedetti v. Erie County Med. Ctr. Corp. , 126 A.D.3d 1322, 1323, 5 N.Y.S.3d 746 [4th Dept. 2015] ), and the appeal from that order must therefore be dismissed (see Kavanaugh v. Kavanaugh , 200 A.D.3d 1568, 1571, 161 N.Y.S.3d 558 [4th Dept. 2021] ; Caffrey v. Morse Diesel Intl. , 279 A.D.2d 494, 494, 719 N.Y.S.2d 597 [2d Dept. 2001] ).

Regarding appeal No. 1, we agree with plaintiff that Supreme Court erred in granting Kaleida's motion with respect to the Kaleida-Poreda claims, the Kaleida-Riedy claims, and the Kaleida staff claims. We therefore modify the order in appeal No. 1 accordingly. Even assuming, arguendo, that Kaleida met its initial burden on the motion with respect to those claims, we conclude that plaintiff raised triable issues of fact by submitting the affirmations of his medical experts (see Haas v. F.F. Thompson Hosp., Inc. , 86 A.D.3d 913, 914, 926 N.Y.S.2d 248 [4th Dept. 2011] ; see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Here, we conclude that "[t]he conflicting opinions of the experts...