Donnelly v. Parikh
| Decision Date | 10 May 2017 |
| Citation | 150 A.D.3d 820,55 N.Y.S.3d 274 |
| Parties | Jaye DONNELLY, appellant, v. Surakant PARIKH, etc., et al., defendants, Long Island Medical Imaging, P.C., et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
150 A.D.3d 820
55 N.Y.S.3d 274
Jaye DONNELLY, appellant,
v.
Surakant PARIKH, etc., et al., defendants,
Long Island Medical Imaging, P.C., et al., respondents.
Supreme Court, Appellate Division, Second Department, New York.
May 10, 2017.
Pegalis & Erickson, LLC, Lake Success, NY (Robert V. Fallarino and Linda M. Oliva of counsel), for appellant.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY (Christopher Simone, Tiffany A. Miao, and Jonathan P. Shaub of
counsel), for respondents Long Island Medical Imaging, P.C., Long Island Magnetic Resonance Imaging, P.C., and Albert Zilkha.
Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman and Merril Biscone of counsel), for respondents John A. Saugy and Suffolk Orthopaedic Associates, P.C.
MARK C. DILLON, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
Appeal from an order of the Supreme Court, Suffolk County (Jeffrey Arlen Spinner, J.), dated August 19, 2014. The order, insofar as appealed from, granted the motion of the defendants John A. Saugy and Suffolk Orthopaedic Associates, P.C., for summary judgment dismissing the complaint insofar as asserted against them and the separate motion of the defendants Albert Zilkha, Long Island Medical Imaging, P.C., and Long Island Magnetic Resonance Imaging, P.C., for summary judgment dismissing the complaint insofar as asserted against the defendant Albert Zilkha and so much of the complaint as alleged that the defendants Long Island Medical Imaging, P.C., and Long Island Magnetic Resonance Imaging, P.C., were vicariously liable for the acts or omissions of the defendant Albert Zilkha.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
The plaintiff commenced this action to recover damages for medical malpractice and lack of informed consent against, among others, the defendants Albert Zilkha and Joel D. Reiter, who were radiologists employed by the defendants Long Island Medical Imaging, P.C. (hereinafter Long Island Medical), and Long Island Magnetic Resonance Imaging, P.C. (hereinafter Long Island MRI), and the defendant John A. Saugy, an orthopedic surgeon employed by the defendant Suffolk Orthopaedic Associates, P.C. (hereinafter together the Saugy defendants). The plaintiff alleged, inter alia, that Zilkha negligently failed "to timely identify a malignant process in the left lung of the plaintiff evidenced by [an MRI] performed on or about August 7, 2007," and negligently failed "to note the presence of a mass in the left lung." Moreover, the plaintiff alleged that Saugy departed from accepted medical practice in, among other things, misinterpreting X-rays of her shoulder, "failing to document any pathology in the lung," "failing to diagnose lung cancer," and "negligently diagnosing shoulder impingement syndrome" and "rotator cuff pain."
In the order appealed from, the Supreme Court, inter alia, granted the Saugy defendants' motion for summary judgment dismissing the complaint insofar as asserted against them. In addition, the court granted the separate motion of Zilkha, Long Island Medical, and Long Island MRI for summary judgment dismissing the complaint insofar as asserted against Zilkha and so much of the complaint as alleged that Long Island Medical and Long Island MRI were vicariously liable for Zilkha's acts or omissions. We affirm the order insofar as appealed from.
"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 continue reading
Request your trial
-
Rosario v. Our Lady of Consolation Nursing & Rehab. Care Ctr.
...945 N.Y.S.2d 673 ). It has nothing to do with any perceived departures from good and accepted medical practice (see Donnelly v. Parikh, 150 A.D.3d 820, 822, 55 N.Y.S.3d 274 ; Meade v. Yland, 140 A.D.3d 931, 933, 33 N.Y.S.3d 444 ; Chulla v. DiStefano, 242 A.D.2d 657, 658, 662 N.Y.S.2d 570 ["......
-
Mann v. Okere
...of a triable issue of fact, but only as to the elements on which the defendant met the prima facie burden" ( Donnelly v. Parikh, 150 A.D.3d 820, 822, 55 N.Y.S.3d 274 [ellipses and internal quotation marks omitted]; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E......
-
Samer v. Desai
...the conclusions of the plaintiff's expert as to Desai, Anand, and Sveilich were conclusory and speculative (see Donnelly v. Parikh , 150 A.D.3d 820, 824, 55 N.Y.S.3d 274 ; 116 N.Y.S.3d 382 Feuer v. Ng , 136 A.D.3d 704, 707, 24 N.Y.S.3d 198 ; Shashi v. South Nassau Communities Hosp. , 104 A.......
-
McAlwee v. Westchester Health Assocs., PLLC
...subject for expert opinion (see McNulty v. City of New York, 100 N.Y.2d 227, 232, 762 N.Y.S.2d 12, 792 N.E.2d 162 ; Donnelly v. Parikh, 150 A.D.3d 820, 822, 55 N.Y.S.3d 274 ; Burns v. Goyal, 145 A.D.3d at 954, 44 N.Y.S.3d 180 ; Sawh v. Schoen, 215 A.D.2d 291, 292, 627 N.Y.S.2d 7 ). Here, Di......