Macaluso v. Pilcher

• Decision Date: 23 December 2016
• Citation: 2016 N.Y. Slip Op. 08708,43 N.Y.S.3d 658,145 A.D.3d 1559
• Parties: Laura MACALUSO and Arthur Macaluso, Plaintiffs–Respondents, v. Webster H. PILCHER, M.D., PH.D., and University of Rochester Medical Center School of Medicine and Dentistry, Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1559

43 N.Y.S.3d 658

2016 N.Y. Slip Op. 08708

Laura MACALUSO and Arthur Macaluso, Plaintiffs–Respondents,

v.Webster H. PILCHER, M.D., PH.D., and University of Rochester Medical Center School of Medicine and Dentistry, Defendants–Appellants.

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

Dec. 23, 2016.

Ward Greenberg Heller & Reidy LLP, Rochester (Jessica N. Clemente of Counsel), for Defendants–Appellants.

Charles A. Hall, Rochester, for Plaintiffs–Respondents.

PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.

MEMORANDUM:

Plaintiffs commenced this medical malpractice action alleging that, during surgery upon Laura Macaluso (plaintiff) to remove a previously-implanted spinal cord stimulator (SCS), Webster H. Pilcher, M.D., Ph.D. (defendant) negligently failed to remove part of a synthetic tubular sleeve that had covered wires connecting components of the SCS. On appeal, defendants contend that Supreme Court erred in denying their motion for summary judgment dismissing the complaint. We agree.

In order to meet their initial burden on their motion for summary judgment in this medical malpractice action, defendants were "required to ‘present factual proof, generally consisting of affidavits, deposition testimony and medical records, to rebut the claim of malpractice by establishing that [they] complied with the accepted standard of care or did not cause any injury to the patient’ " (Webb v. Scanlon, 133 A.D.3d 1385, 1386, 20 N.Y.S.3d 830 ). "A defendant physician may submit his or her own affidavit to meet that burden, but that affidavit must be detailed, specific and factual in nature ..., and must address each of the specific factual claims of negligence raised in [the] plaintiff[s'] bill of particulars" (id. [internal quotation marks omitted] ).

Here, defendant submitted his own affidavit, along with an accompanying medical record, in which he described in detail the specific, limited objectives of the surgery, which included removing the battery pack component of the SCS and the electrical leads along plaintiff's spinal cord, as well as removing the connecting wires that ran under plaintiff's skin by pulling them through a surgical opening on her side. Defendant averred—consistent with his deposition testimony that was also submitted with his affidavit—that he was aware of the possibility that sleeves could be under plaintiff's skin from the original surgery, but that the surgical plan discussed with plaintiff did not include expanding the procedure to encompass searching for or removing any such items because to do so would have unnecessarily increased the scope and risk of the surgery beyond any possible benefit. Defendant noted, among other things, that any sleeve previously implanted in plaintiff was inert and sterile, and was designed and intended to remain inside her body. Defendant conducted a routine postoperative visit during which plaintiff...