Dunn v. Khan
| Decision Date | 19 May 2009 |
| Docket Number | 2007-10194. |
| Parties | MITCHELL DUNN, Appellant, v. AIJAZ KHAN et al., Respondents, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
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.
On the morning or August 19, 2003 the decedent Pauline Dunn was brought to the defendant South Nassau Communities Hospital (hereinafter South Nassau) after having ingested 50 Xanax pills. She was treated for her medical condition by the defendant Aijaz Khan, M.D, and, over several days, by the defendant Cesar Florita, M.D., for her psychiatric condition. On August 23, 2003 Dr. Kahn discharged the decedent pursuant to Dr. Florita's recommendation. Dr. Florita prescribed several medications to address the decedent's anxiety, and made arrangements with the plaintiff, the decedent's husband, for the decedent to get outpatient treatment.
Two days later, the plaintiff found the decedent dead in their bathtub, having drowned. Although the drugs Fiorcet and Tylenol were found in her system, the parties' experts offered conflicting conclusions as to whether she ingested the drugs in amounts sufficient to have contributed to her death.
The plaintiff thereafter brought this action against the defendants, alleging medical malpractice. Dr. Khan moved, and Dr. Florita and South Nassau separately moved, for summary judgment dismissing the complaint insofar as asserted against them. In an order dated September 28, 2007, the Supreme Court, inter alia, granted the motions, finding that Dr. Khan, Dr. Florita, and South Nassau each established, prima facie, that they were entitled to judgment as a matter of law. The court also found that the expert opinions offered by the plaintiff were conclusory, and therefore insufficient to raise a triable issue of fact in opposition. The plaintiff appeals. We affirm the order insofar as appealed from.
"To establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach of the standard was the proximate cause of injury" (Berger v Becker, 272 AD2d 565, 565 [2000] [citation omitted]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Nichols v Stamer, 49 AD3d 832 [2008]). "Expert testimony is necessary to prove a deviation from accepted standards of medical...
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...or to raise a triable issue of fact in opposition ( see Post v. County of Suffolk, 80 A.D.3d 682, 685, 915 N.Y.S.2d 124;Dunn v. Khan, 62 A.D.3d 828, 829, 880 N.Y.S.2d 653). Precluding an expert's affidavit solely on the ground that the offering party did not disclose the expert's identity p......
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...is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause." Dunn v. Kahn, 62 A.D.3d 828, 829 (N.Y. App. Div. 2009); Cregan v. Sachs, 879 N.Y.S.2d 440, 446 (N.Y. App. Div. 2009) ("'To establish what the existing standard is or that there has b......
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