Matos v. Schwartz

• Decision Date: 06 March 2013
• Parties: Keith MATOS, et al., respondents, v. Arnold SCHWARTZ, etc., et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 650
960 N.Y.S.2d 209
2013 N.Y. Slip Op. 01380

Keith MATOS, et al., respondents,
v.
Arnold SCHWARTZ, etc., et al., appellants, et al., defendants.

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

March 6, 2013.

[960 N.Y.S.2d 210]

Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and Lauren J. Daniels of counsel), for appellants Arnold Schwartz and Orthopedic Spine Care of L.I., P.C.

Kaufman Borgeest & Ryan LLP, Garden City, N.Y. (Jacqueline Mandell of counsel), for appellant William Martin.

Sanocki, Newman & Turret, LLP, New York, N.Y. (David B. Turret and Joshua Fogel of counsel), for respondents.

RANDALL T. ENG, P.J., THOMAS A. DICKERSON, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

[104 A.D.3d 650]In an action to recover damages for medical malpractice and lack of informed consent, etc., the defendants Arnold Schwartz and Orthopedic Spine Care of L.I., P.C., appeal, and the defendant William Martin separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated May 31, 2011, as denied their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is reversed insofar as appealed from, [104 A.D.3d 651]on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, and the separate motions of the appellants Arnold Schwartz and Orthopedic Spine Care of L.I., P.C., and the appellant William Martin, for summary judgment dismissing the complaint insofar as asserted against each of them are granted.

On July 7, 2005, the injured plaintiff, Keith Matos, underwent spinal fusion surgery to alleviate back pain caused by lumbar disc degeneration. The surgery was performed by the defendant Arnold Schwartz, an orthopedic surgeon, with the assistance of the defendant William Martin, a vascular surgeon. During the course of the operation, which required the surgeons to gain access to the lumbar spine though the abdomen, the injured plaintiff's left iliac vein was torn. The injured plaintiff, and his wife suing derivatively, thereafter commenced this medical malpractice action against several parties, including Schwartz, Orthopedic Spine Care of L.I., P.C. (hereinafter Orthopedic Spine Care), a professional corporation of which Schwartz is a member, and Martin, alleging that they had negligently damaged the injured plaintiff's iliac vein during the surgery, resulting in serious complications including retrograde ejaculation. The plaintiffs also alleged that those defendants had failed to obtain the injured plaintiff's informed consent to the surgery. After discovery had been completed, the defendants Schwartz and Orthopedic Spine Care, and the defendant Martin, separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied their respective motions.

Schwartz and Orthopedic Spine Care made a prima facie showing of their entitlement to judgment as a matter of law dismissing the causes of action sounding in medical malpractice insofar as asserted

[960 N.Y.S.2d 211]

against them. Schwartz and Orthopedic Spine Care established, through the submission of deposition testimony, medical records, and the affirmation of an expert neurosurgeon, that Schwartz...