Lindsay-Thompson v. Montefiore Med. Ctr.

• Decision Date: 23 February 2017
• Parties: Renee LINDSAY–THOMPSON, et al., Plaintiffs–Appellants, v. MONTEFIORE MEDICAL CENTER, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 638
49 N.Y.S.3d 98

Renee LINDSAY–THOMPSON, et al., Plaintiffs–Appellants,
v.
MONTEFIORE MEDICAL CENTER, et al., Defendants–Respondents.

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

Feb. 23, 2017.

49 N.Y.S.3d 98

Alegria & Barovick LLP, White Plains (Andrew J. Barovick of counsel), for appellants.

KL Rotondo & Associates, Rye (Kathi Libby Rotondo of counsel), for respondents.

FRIEDMAN, J.P., RICHTER, KAPNICK, KAHN, JJ.

147 A.D.3d 638

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or about August 25, 2015, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Although defendants failed to establish that there was no departure from good and accepted medical practice in their

147 A.D.3d 639

administration of Phenergan, an anti-nausea medication, to plaintiff Renee Lindsay–Thompson (plaintiff), they established prima facie that any departure was not a proximate cause of plaintiff's alleged injuries (see Anyie B. v. Bronx Lebanon Hosp., 128 A.D.3d 1, 3, 5 N.Y.S.3d 92 [1st Dept.2015] ). Their expert opined that

49 N.Y.S.3d 99

plaintiff's symptoms were inconsistent with extravasation (leakage) of Phenergan, and that, in any event, there was no causal relationship between extravasation and the alleged injuries, reflex sympathetic dystrophy (RSD) and fibromyalgia.

Because defendants failed to establish the absence of a departure from the standard of care, plaintiffs were not required to raise a triable issue of fact as to whether there was a departure (see Stukas v. Streiter, 83 A.D.3d 18, 29–30, 918 N.Y.S.2d 176 [2d Dept.2011] ; see also Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; Kimberlee M. v. Jaffe, 139 A.D.3d 508, 509, 30 N.Y.S.3d 631 [1st...