DiMitri v. Monsouri
| Decision Date | 10 February 2003 |
| Parties | LOUIS A. DIMITRI et al., Respondents,<BR>v.<BR>HORMOZ MONSOURI et al., Defendants, and<BR>JAMES LEVINSOHN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.
On May 22, 1998, the plaintiff Louis A. DiMitri (hereinafter the plaintiff) underwent surgery at Mid-Island Hospital to have his gall bladder removed and a hernia repaired. The defendant Dr. James Levinsohn was the anesthesiologist for the operation. Prior to his surgery, the plaintiff was positioned on the operating table on his back with his arms extended, palms ups, at almost a 90-degree angle from his body. The plaintiff's arms were strapped into arm rests located on either side of him. The plaintiff complained to a nurse of numbness and a tingling sensation in his fingers, and after discharge from the hospital he consulted an orthopedist. He was diagnosed with ulnar nerve neuritis of his right arm and subsequently had corrective surgery on July 8, 1998.
Once the proponent of a summary judgment motion makes a prima facie showing of entitlement to judgment as a matter of law, the burden shifts to the opposing party to present evidence in admissible form which demonstrates the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). In medical malpractice actions, a plaintiff opposing a defendant physician's summary judgment motion must submit material or evidentiary facts to rebut the physician's prima facie showing that he or she was not negligent in treating the plaintiff (see Alvarez v Prospect Hosp., supra). General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment (see Alvarez v Prospect Hosp., supra at 324). 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 (see Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359).
In this case, Dr. Levinsohn demonstrated the absence of any issue of fact, and established his entitlement to judgment as a matter of law. Based on his deposition testimony, the nurse's...
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