Elstein v. Hammer

• Decision Date: 31 March 2021
• Docket Number: Index No. 2277/12,2018–00630
• Citation: 145 N.Y.S.3d 572,192 A.D.3d 1075
• Parties: Mark E. ELSTEIN, et al., respondents, v. Arthur W. HAMMER, etc., et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1075

145 N.Y.S.3d 572

Mark E. ELSTEIN, et al., respondents,

v.Arthur W. HAMMER, etc., et al., appellants, et al., defendants.

2018–00630

Index No. 2277/12

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

Argued—January 28, 2021

March 31, 2021

Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner and Daryl Paxson of counsel), for appellants.

Silberstein Awad & Miklos, P.C., Garden City, N.Y. (Joseph P. Awad of counsel), for respondents.

WILLIAM F. MASTRO, A.P.J., SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the defendants Arthur W. Hammer, Kings Pulmonary Associates, P.C., and Beth Israel Medical Center/Kings Highway Division appeal from an order of the Supreme Court, Kings County (Marsha L. Steinhardt, J.), dated November 9, 2017. The order, insofar as appealed from, denied that branch of the motion of the defendants Arthur W. Hammer, Kings Pulmonary Associates, P.C., Beth Israel Medical Center/Kings Highway Division, and Ilya Blokh which was for summary judgment dismissing the complaint insofar as asserted against the defendants Arthur W. Hammer, Kings Pulmonary Associates, P.C., and Beth Israel Medical Center/Kings Highway Division.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Arthur W. Hammer, Kings Pulmonary Associates, P.C., Beth Israel Medical Center/Kings Highway Division, and Ilya Blokh which was for summary judgment dismissing the complaint insofar as asserted against the defendants Arthur W. Hammer, Kings Pulmonary Associates, P.C., and Beth Israel Medical Center/Kings Highway Division is granted.

On December 12, 2009, the plaintiff Mark E. Elstein (hereinafter the plaintiff) presented at the emergency department of the defendant Beth Israel Medical Center/Kings Highway Division (hereinafter BIMC/KHD) complaining of flu-like symptoms and intermittent high fevers. An infectious disease consult was called, and the infectious disease physician, the defendant Richard Cofsky, noted that the plaintiff had been in the Dominican Republic from November 21 to November 28 and had an insect bite that had resolved quickly. After assessing the plaintiff's symptoms and reviewing various test results, he concluded that the plaintiff was suffering from a viral syndrome or dengue fever, but doubted this was "malarial in nature." The plaintiff was admitted to the intensive care unit and assigned to the care of the defendant Arthur W. Hammer, a physician who was board certified in internal medicine and pulmonology. Hammer subsequently concluded that the plaintiff's condition was consistent with bronchitis obliterans obstructive pneumonia. After treatment with antibiotics and steroids, the plaintiff's condition improved, and on December 28, 2009, he was discharged. A flu vaccine and pneumococcal vaccine were administered to the plaintiff before his discharge.

Thereafter, on January 4, 2010, the plaintiff presented at the emergency department of nonparty New York Presbyterian Hospital (hereinafter NYPH) with a fever and complaining of dizziness at which time he was diagnosed with malaria and treated. On January 11 and January 13, 2010, the plaintiff returned to the emergency department of NYPH with complaints of leg and back pain and was ultimately diagnosed with Guillian–Barre syndrome (hereinafter GBS).

The plaintiff, and his wife suing derivatively, commenced this action, inter alia, to recover damages for medical malpractice against Hammer, Kings County Pulmonary Associates, P.C., BIMC/KHD (hereinafter collectively the defendants), and the defendant Ilya Blokh, among others. The plaintiff and his wife alleged, among other things, that as a result of the defendants' failure to diagnose the plaintiff and treat him for malaria while he was hospitalized at BIMC/KHD, as well as their administration of an influenza vaccine to him while he was acutely ill, the plaintiff suffered numerous injuries, including, inter alia, the development of GBS. The defendants and Blokh moved, among other things, for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court denied that branch of the motion. The defendants appeal from so much of the order as denied that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against them.

"A defendant seeking summary judgment in a medical malpractice action bears the initial burden of establishing, prima facie, either that there was no departure from the applicable standard of care, or that any alleged departure did not proximately cause the plaintiff's injuries. In opposition, the plaintiff must demonstrate the existence of a triable issue of fact as to the elements with respect to which the defendant has met its initial burden" ( Michel v. Long Is. Jewish Med. Ctr., 125 A.D.3d 945, 945–946, 5 N.Y.S.3d 162 ; see Kiernan v. Arevalo–Valencia, 184 A.D.3d 727, 728, 126 N.Y.S.3d 205 ). While "[s]ummary judgment is [generally] not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions, as [s]uch credibility issues can only be resolved by a jury" ( Smith v. Sommer, 189 A.D.3d 906, 907, 137 N.Y.S.3d 99 [internal quotation marks omitted]; see Rodriguez v. Bursztyn, 187 A.D.3d 1230, 131 N.Y.S.3d 569 ; Castillo v. Surasi, 181 A.D.3d 786, 788, 121 N.Y.S.3d 291 ), "expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" ( Wagner v. Parker, 172 A.D.3d 954, 955, 100 N.Y.S.3d 280 ; see Choida v. Schirripa, 188 A.D.3d 978, 979, 135 N.Y.S.3d 481 ). "In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record" ( Tsitrin v. New York Community Hosp., 154 A.D.3d 994, 996, 62 N.Y.S.3d 506 [internal quotation marks omitted]; see Choida v. Schirripa, 188 A.D.3d at 980, 135 N.Y.S.3d 481 ).

Here, the defendants established their prima facie entitlement to judgment as a matter of law through, among other things, the deposition testimony, the medical records, and the affirmations of their experts Robert Maxfield, a physician who was board certified in internal medicine and pulmonary diseases, and Anthony Amato, a physician who was board certified in, inter alia, neurology. Both experts opined that the defendants did not depart from accepted medical practice in failing to diagnose the plaintiff with malaria and in administering the flu vaccine to him and that any alleged departure was not a proximate cause of the plaintiff's injuries (see Russell v. Garafalo, 189 A.D.3d 1100, 136 N.Y.S.3d 317 ; Jacob v. Franklin Hosp. Med. Ctr., 188 A.D.3d 838, 840, 135 N.Y.S.3d 430 ; Castillo v. Surasi, 181 A.D.3d at 788, 121 N.Y.S.3d 291 ). The defendants' experts addressed and rebutted the specific allegations of malpractice set forth in the complaint and bill of particulars (see Sheppard v. Brookhaven Mem. Hosp. Med. Ctr., 171 A.D.3d 1234, 1235, 98 N.Y.S.3d 629 ). They explained how and why the defendants did not depart from good and accepted practice. Their affirmations contained factual detail with respect to the alleged injuries, and contained more than bare conclusory assertions (cf. Garcia–DeSoto v. Velpula, 164 A.D.3d 474, 77 N.Y.S.3d 887 ).

In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs proffered the expert affidavit of Angelo Scotti, a physician who was board certified in internal medicine, infectious diseases, and emergency medicine. Contrary to the defendants' contention, Scotti was qualified to deliver an opinion as to whether the defendants departed from good and accepted practice in the failure to diagnose and treat malaria and in administering the flu vaccine to the plaintiff (see Kiernan v. Arevalo–Valencia, 184...