M.C. v. Huntington Hosp.

• Decision Date: 21 August 2019
• Docket Number: 2016–13016,Index No. 29049/11
• Citation: 175 A.D.3d 578,106 N.Y.S.3d 382
• Parties: M.C., et al., Appellants, v. HUNTINGTON HOSPITAL, et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 578

106 N.Y.S.3d 382

M.C., et al., Appellants,

v.HUNTINGTON HOSPITAL, et al., Respondents, et al., Defendants.

2016–13016

Index No. 29049/11

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

Argued - April 5, 2019

August 21, 2019

Cellino & Barnes, P.C., Garden City, N.Y. (Ellen B. Sturm and John E. Lavelle of counsel), for appellants.

Bower Law P.C., Uniondale, N.Y. (Gianna Crespo of counsel), for respondents Huntington Hospital, Huntington Hospital Association, North Shore Long Island Jewish Huntington Hospital, Robert Bramante, and Tse Lau.

Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (David Bloom of counsel), for respondent Fred DiBlasio.

MARK C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice and lack of informed consent, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Arthur G. Pitts, J.), dated October 20, 2016. The order, insofar as appealed from, granted those branches of the separate motions of the defendant Fred DiBlasio and the defendants Huntington Hospital, Huntington Hospital Association, North Shore Long Island Jewish Huntington Hospital, Robert Bramante, and Tse Lau which were for summary judgment dismissing so much of the complaint as alleged medical malpractice insofar as asserted against each of them.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and those branches of the separate motions of the defendant Fred DiBlasio and the defendants Huntington Hospital, Huntington Hospital Association, North Shore Long Island Jewish Huntington Hospital, Robert Bramante, and Tse Lau which were for summary judgment dismissing so much of the complaint as alleged medical malpractice insofar as asserted against each of them are denied.

The infant plaintiff, by his mother, and his mother, individually, commenced this action, inter alia, to recover damages for medical malpractice and lack of informed consent, alleging that the defendants' failure to timely diagnose and treat the infant plaintiff's condition of testicular torsion

caused the loss of his right testicle. The defendant Fred DiBlasio, the urologist who treated the infant plaintiff in the emergency room at the defendant Huntington Hospital on March 20, 2011, moved for summary judgment dismissing the complaint insofar as asserted against him. The defendants Huntington Hospital, Huntington Hospital Association, North Shore Long Island Jewish Huntington Hospital, Robert Bramante, and Tse Lau (hereinafter collectively the hospital defendants) separately moved for summary judgment dismissing the complaint insofar as asserted against them. In opposition, the plaintiffs submitted, inter alia, an affidavit of a physician licensed to practice medicine in the state of Connecticut who was board certified in pediatric emergency medicine. The Supreme Court granted both motions for summary judgment, reasoning that, in opposition to the defendants' prima facie showing of their entitlement to judgment as a matter of law, the expert affidavit submitted by the plaintiffs failed to raise a triable issue of fact with regard to the medical malpractice cause of action, because the expert was not qualified to render an opinion on urological care and did not establish that the community standards of care in Connecticut were the same as in New York. On appeal, the plaintiffs contend that the court should have denied those branches of the separate motions which were for summary judgment dismissing so much of the complaint as alleged medical malpractice insofar as asserted against DiBlasio and the hospital defendants.

"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 Salgado v. North Shore Univ. Hosp., 167 A.D.3d 1057, 89 N.Y.S.3d 698 ; DiLorenzo v. Zaso, 148 A.D.3d 1111, 1112, 50 N.Y.S.3d 503 ; Feuer v. Ng, 136 A.D.3d 704, 706, 24 N.Y.S.3d 198 ). A defendant seeking summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries (see Hernandez v. Nwaishienyi, 148 A.D.3d 684, 686, 48 N.Y.S.3d 467 ; Feuer v. Ng, 136 A.D.3d at 706, 24 N.Y.S.3d 198 ; Stukas v. Streiter, 83 A.D.3d at 24, 918 N.Y.S.2d 176 ). Where the defendant has satisfied that burden, a plaintiff must "submit evidentiary facts or materials to rebut the defendant's prima facie showing" ( Stukas v. Streiter, 83 A.D.3d at 30, 918 N.Y.S.2d 176 ). " ‘Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause’ " ( Novick v. South Nassau Communities Hosp., 136 A.D.3d 999, 1000, 26 N.Y.S.3d 182, quoting Lyons v. McCauley, 252 A.D.2d 516, 517, 675 N.Y.S.2d 375 ; see Whitnum v. Plastic & Reconstructive Surgery, P.C., 142 A.D.3d 495, 497, 36 N.Y.S.3d 470 ).

Here, DiBlasio and the hospital defendants established their prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged medical malpractice insofar as asserted against each of them. DiBlasio and the hospital defendants each submitted a detailed affirmation of a medical expert who opined that they did not depart from the applicable standard of care and that, even if the infant plaintiff's testicular torsion

had been diagnosed and treated earlier, the outcome would have been the same (see

DiLorenzo v. Zaso, 148 A.D.3d at 1113, 50 N.Y.S.3d 503 ; Sukhraj v. New York City Health & Hosps. Corp., 106 A.D.3d 809, 965 N.Y.S.2d 532 ).

We disagree with the Supreme Court's determination that the affidavit of the plaintiffs' expert, submitted in opposition to the motions for summary judgment, did not constitute competent evidence. " ‘While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field...