Dixon v. Chang

• Decision Date: 05 July 2018
• Docket Number: Index No. 104442/07,2015–06882
• Parties: Eleanor DIXON, etc., et al., appellants-respondents, v. Edwin M. CHANG, etc., et al., respondents, Paul Kelleher, etc., respondent-appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 525

79 N.Y.S.3d 648

Eleanor DIXON, etc., et al., appellants-respondents,

v.Edwin M. CHANG, etc., et al., respondents,Paul Kelleher, etc., respondent-appellant, et al., defendant.

2015–06882

Index No. 104442/07

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

Argued—February 16, 2018

July 5, 2018

Law Offices of Joseph M. Lichtenstein, P.C., Mineola, N.Y. (Theodore McKinley Thornton of counsel), for appellants-respondents.

Vaslas Lepowsky Hauss & Danke LLP, Staten Island, N.Y. (Paul J. Danke Jr., and Neil F. Schreffler of counsel), for respondent-appellant and respondent Luigi J. Parisi.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal, and the defendant Paul Kelleher cross-appeals, from an order of the Supreme Court, Richmond County (Philip G. Minardo, J.), dated March 9, 2015. The order, insofar as appealed from, granted that branch of the motion of the defendants Luigi J. Parisi and Paul Kelleher which was for summary judgment dismissing the complaint insofar as asserted against the defendant Luigi J. Parisi. The order, insofar as cross-appealed from, denied that branch of the same motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Paul Kelleher.

ORDERED that the order is affirmed insofar as appealed from, and it is further,

ORDERED that the order is reversed insofar as cross-appealed from, on the law, and that branch of the motion of the defendants Luigi J. Parisi and Paul Kelleher which was for summary judgment dismissing the complaint insofar as asserted against the defendant Paul Kelleher is granted; and it is further,

ORDERED that one bill of costs is awarded to the defendants Luigi J. Parisi and Paul Kelleher.

Diana Dixon (hereinafter the decedent) commenced this action, inter alia, to recover damages for medical malpractice, alleging that the defendants failed to timely diagnose and treat her for multiple sclerosis

(hereinafter MS). Following the completion of discovery, the defendants Paul Kelleher, a physiatrist, and Luigi J. Parisi, an internist, moved for summary judgment dismissing the complaint insofar as asserted against each of them. The decedent opposed the motion. The Supreme Court granted that branch of Parisi's and Kelleher's motion which was for summary judgment dismissing the complaint insofar as asserted against Parisi. The decedent filed a notice of appeal and Kelleher filed a notice of cross appeal. By decision and order on motion dated August 1, 2017, this Court granted the motion of the plaintiffs, who are the co-administrators of the decedent's estate, to be substituted as the plaintiff, and to amend the caption accordingly.

"Medical malpractice actions require proof that the defendant physician deviated or departed from the accepted community standards of practice, and that such deviation was a proximate cause of the plaintiff's injuries" ( Bongiovanni v. Cavagnuolo, 138 A.D.3d 12, 16, 24 N.Y.S.3d 689 ; see Trauring v. Gendal, 121 A.D.3d 1097, 1097, 995 N.Y.S.2d 182 ). "When moving for summary judgment, ‘a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby’ " ( Trauring v. Gendal, 121 A.D.3d at 1097, 995 N.Y.S.2d 182, quoting Rebozo v. Wilen, 41 A.D.3d 457, 458, 838 N.Y.S.2d 121 ; see Meade v. Yland, 140 A.D.3d 931, 932–933, 33 N.Y.S.3d 444 ). " ‘Once a defendant physician has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, ... but only as to the elements on which the defendant met the prima facie burden’ " ( Leigh v. Kyle, 143 A.D.3d 779, 781, 39 N.Y.S.3d 45, quoting Gillespie v. New York Hosp. Queens, 96 A.D.3d 901, 902, 947 N.Y.S.2d 148 ; see Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176 ).

" ‘Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient’ " ( Donnelly v. Parikh, 150 A.D.3d 820, 822, 55 N.Y.S.3d 274, quoting Meade v. Yland, 140 A.D.3d at 933, 33 N.Y.S.3d 444 [internal quotation marks omitted]; see Burns v. Goyal, 145 A.D.3d 952, 954, 44 N.Y.S.3d 180 ). Here, that branch of Parisi's and Kelleher's motion which was for summary judgment dismissing the complaint insofar as asserted against Parisi was properly granted. Parisi established his prima facie entitlement to judgment as a matter of law through a detailed affirmation of an expert in internal medicine, who opined that Parisi appropriately diagnosed and treated the decedent for the internal medical issues with which she presented. Moreover, Parisi established, through the decedent's medical records and various deposition transcripts, that his duty of care as an internist did not extend to the alleged departures in failing to timely diagnose or treat the decedent's MS. Indeed, by the time Parisi started treating the decedent, she...