Garrett v. Univ. Assocs. in Obstetrics & Gynecology, P.C.

• Decision Date: 01 May 2012
• Citation: 95 A.D.3d 823,944 N.Y.S.2d 197,2012 N.Y. Slip Op. 03405
• Parties: Lynn GARRETT, respondent, v. UNIVERSITY ASSOCIATES IN OBSTETRICS & GYNECOLOGY, P.C., et al., defendants, Brookhaven Memorial Hospital Medical Center, et al., appellants.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 823

944 N.Y.S.2d 197

2012 N.Y. Slip Op. 03405

Lynn GARRETT, respondent,

v. UNIVERSITY ASSOCIATES IN OBSTETRICS & GYNECOLOGY, P.C., et al., defendants,Brookhaven Memorial Hospital Medical Center, et al., appellants.

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

May 1, 2012.

Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for appellants.

Kelner & Kelner, New York, N.Y. (Gerard K. Ryan, Jr., of counsel), for respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action to recover damages for medical malpractice and lack of informed consent, the defendants Brookhaven MemorialHospital Medical Center and Alan I. Nemeth appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), entered April 1, 2011, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants Brookhaven Memorial Hospital Medical Center and Alan I. Nemeth which was for summary judgment dismissing the complaint insofar as asserted against the defendant Alan I. Nemeth, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

On January 31, 2005, the plaintiff suffered a bowel perforation during a bilateral tubal ligation performed by the defendant Sara Petruska at Stony Brook University Hospital (hereinafter Stony Brook). The perforation was not discovered during the surgery, and the plaintiff was discharged from Stony Brook the same day. After her discharge, the plaintiff was in severe pain, so she went that night to the emergency room at the defendant Brookhaven Memorial Hospital Medical Center (hereinafter Brookhaven). On February 1, 2005, at approximately 1:30 A.M., she was seen by the defendant Alan I. Nemeth, who ordered a CT scan and various other tests and procedures. Because of the plaintiff's inability to stay still, the CT scan was delayed, and it was not done until shortly after Nemeth's shift had ended and the plaintiff's care had been transferred to Robert Ehlers. The radiologist's report of the CT scan indicated that the etiology of certain findings “includes bowel perforation,” and advised “[p]lease correlate clinically.” The plaintiff was nonetheless discharged from Brookhaven that day. She later returned to Stony Brook, where the perforation was eventually diagnosed and treated. By then, however, infection had set in and the plaintiff allegedly suffered severe consequential injuries.

The plaintiff commenced this action, inter alia, to recover damages for medical malpractice against Petruska and her professional corporations, University Associates in Obstetrics & Gynecology, P.C., University Associates in Obstetrics & Gynecology, and University Faculty Practice Corporation, as well as Nemeth and Brookhaven. She also asserted a cause of action against Petruska and her professional corporations alleging lack of informed consent. With respect to Nemeth and Brookhaven, the plaintiff alleged, among other things, that the failure of Nemeth and Ehlers to order various consults, obtain certain records from Stony Brook, and diagnose the bowel perforation was a departure from the accepted standard of care and that the departure proximately caused or contributed to her injuries. Nemeth and Brookhaven (hereinafter together the appellants) moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court, inter alia, denied the appellants' motion, determining that, in opposition to the appellants' prima facie showing, the plaintiff demonstrated the existence of triable issues of fact.

“In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries” ( Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176;see Caggiano v. Cooling, 92 A.D.3d 634, 938 N.Y.S.2d 329;Myers v. Ferrara, 56 A.D.3d 78, 83, 864 N.Y.S.2d 517). A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure or that any alleged departure was not a proximate cause of the plaintiff's injuries ( see Faicco v. Golub, 91 A.D.3d 817, 818, 938 N.Y.S.2d 105;Stukas v. Streiter, 83 A.D.3d at 24, 918 N.Y.S.2d 176). The burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact only upon the defendant physician's meeting the initial burden ( see Savage v. Quinn, 91 A.D.3d 748, 750, 937 N.Y.S.2d 265), and only as to the elements on which the defendant...