Leigh v. Kyle

• Court: New York Supreme Court — Appellate Division
• Citation: Leigh v. Kyle, 2016 NY Slip Op 6685, 143 A.D.3d 779, 39 N.Y.S.3d 45 (N.Y. App. Div. 2016)
• Decision Date: 12 October 2016
• Parties: Melinda Yolanda LEIGH, also known as Melinda Leigh, et al., appellants, v. Annmarie KYLE, etc., et al., defendants, Alan Mechanic, etc., et al., respondents. (Appeal No. 1) Melinda Yolanda Leigh, also known as Melinda Leigh, et al., appellants, v. Annmarie Kyle, etc., et al., defendants, Robert Goodman, etc., et al., respondents. (Appeal No. 2).

143 A.D.3d 779

39 N.Y.S.3d 45

2016 N.Y. Slip Op. 06685

Melinda Yolanda LEIGH, also known as Melinda Leigh, et al., appellants,

v.Annmarie KYLE, etc., et al., defendants,Alan Mechanic, etc., et al., respondents. (Appeal No. 1)

Melinda Yolanda Leigh, also known as Melinda Leigh, et al., appellants,

v.Annmarie Kyle, etc., et al., defendants,Robert Goodman, etc., et al., respondents. (Appeal No. 2).

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

Oct. 12, 2016.

Pegalis & Erickson, LLC, Lake Success, NY (Gerhardt M. Nielsen of counsel), for appellants.

Chesney & Nicholas, LLP, Syosset, NY (Melissa Fox and Henry Nelkin of counsel), for respondents in Appeal No. 1.

Callan, Koster, Brady & Nagler, LLP, New York, NY (Meredith B. Borg and Louis A. Badolato of counsel), for respondents in Appeal No. 2.

MARK C. DILLON, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Suffolk County (Tarantino, Jr., J.), dated February 28, 2014, as granted the motion of the defendants Alan Mechanic and Long Island Neurosurgical Associates, P.C., for summary judgment dismissing the complaint insofar as asserted against them, and (2) so much of an order of the same court dated September 3, 2014, as, upon reargument, in effect, vacated a determination in the order dated February 28, 2014, denying the motion of the defendants Barry Morgenstern, Robert Goodman, and Medical Arts Radiology, also known as Huntington MRI, for summary judgment dismissing the complaint insofar as asserted against them, and thereupon granted that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Robert Goodman and Medical Arts Radiology, also known as Huntington MRI.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs payable to the defendants Alan Mechanic and Long Island Neurosurgical Associates, P.C., and the defendants Robert Goodman and Medical Arts Radiology, also known as Huntington MRI, appearing separately and filing separate briefs.

The plaintiff Melinda Yolanda Leigh, also known as Melinda Leigh (hereinafter the injured plaintiff), underwent three surgical procedures to evacuate a cyst on her pituitary gland. The third surgery was performed by a nonparty neurosurgeon at the University of Virginia Medical Center.

On June 4, 2004, less than a month after her third surgery, the injured plaintiff was admitted to the defendant Huntington Hospital with complaints of headache, photophobia, and weakness. The injured plaintiff was admitted to the hospital through her primary care physician, the defendant Annmarie Kyle, who later testified that she was responsible for “coordinat[ing] the [injured plaintiff's] care.” A number of consultations were directed upon the injured plaintiff's admission to the hospital, including a neurology consult, an infectious disease consult, an endocrinology consult, and a neurosurgical consult. The neurosurgical consultation was performed by the defendant Alan Mechanic on June 5, 2004. The defendants Barry Morgenstern and Robert Goodman performed and interpreted MRI/MRA and MRV imaging studies of the injured plaintiff's brain on June 4, 2004, and June 8, 2004.

The injured plaintiff was discharged from the hospital on June 11, 2004. She was re-admitted to the hospital about two weeks later, on an emergency basis, for a possible seizure. The plaintiffs allege that the injured plaintiff ultimately experienced a disabling stroke, which required additional surgical intervention and care.

The injured plaintiff, and her husband suing derivatively, commenced this action against the nine physicians who were involved in the injured plaintiff's treatment at Huntington Hospital from June 4, 2004, through June 11, 2004, and their associated medical practices. The plaintiffs alleged, inter alia, that the defendants committed professional malpractice by failing to discover and treat an infection in her sphenoid sinus, which ultimately caused her to suffer the stroke.

Mechanic and his practice, Long Island Neurosurgical Associates, P.C. (hereinafter together the Mechanic defendants), subsequently moved for summary judgment dismissing the complaint insofar as asserted against them. Goodman and his practice, Medical Arts Radiology, also known as Huntington MRI (hereinafter together the Goodman defendants), and Morgenstern also moved for summary judgment dismissing the complaint insofar as asserted against them.

In an order dated February 28, 2014, the Supreme Court granted the Mechanic defendants' motion for summary judgment. The court denied the motion of the Goodman defendants and Morgenstern as untimely. The Goodman defendants and Morgenstern subsequently moved for leave to reargue their summary judgment motion. In an order dated September 3, 2014, the court granted reargument, and thereupon awarded the Goodman defendants and Morgenstern summary judgment dismissing the complaint insofar as asserted against them. The plaintiffs appeal from portions of both the February 28, 2014, order and the September 3, 2014, order. We affirm the orders insofar as appealed from.

“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 Barrocales v. New York Methodist Hosp., 122 A.D.3d 648, 649, 996 N.Y.S.2d 155 ). “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 departure was not a proximate cause of the plaintiff's injuries” (Gillespie v. New York Hosp. Queens, 96 A.D.3d 901, 902, 947 N.Y.S.2d 148 ; see Barrocales v. New York Methodist Hosp., 122 A.D.3d at 649, 996 N.Y.S.2d 155 ). “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” (Gillespie v. New York Hosp. Queens, 96 A.D.3d at 902, 947 N.Y.S.2d 148 ; see Stukas v. Streiter, 83 A.D.3d at 30, 918 N.Y.S.2d 176 ).

Here, in support of their motion, the Mechanic defendants submitted evidence including Mechanic's deposition testimony and the detailed affirmation of an expert neurosurgeon, who opined that Mechanic did not deviate from the accepted standard of care in the field of neurosurgery in his treatment of the injured plaintiff. Specifically, the expert opined that on the single occasion that Mechanic saw the injured plaintiff as a consulting neurosurgeon, there was no indication that any neurosurgical intervention was necessary. The expert further opined that testing for an infection of the sphenoid sinus was “not within the province of a neurosurgeon” and that, in any event, the facts available to Mechanic at the time that he saw the injured plaintiff did not indicate that she was suffering from an infection. The expert noted that Mechanic had not been involved in the decision to discharge the injured plaintiff from the hospital on June 11, 2004, and that Mechanic did not undertake to perform any...