Pan v. Coburn

• Decision Date: 07 June 1983
• Citation: 95 A.D.2d 670,463 N.Y.S.2d 223
• Parties: Hanna PAN, et al., Plaintiffs-Respondents, v. Richard J. COBURN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 223

463 N.Y.S.2d 223

95 A.D.2d 670

Hanna PAN, et al., Plaintiffs-Respondents, v. Richard J. COBURN, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

June 7, 1983.

G.B. Berns, Forest Hills, for plaintiffs-respondents.

S.C. Mandell, New York City, for defendant-appellant.

Before ROSS, J.P., and CARRO, FEIN, LYNCH and KASSAL, JJ.

MEMORANDUM DECISION.

Order entered September 15, 1982 in Supreme Court, New York County, denying plaintiff's motion for summary judgment as to liability and defendant's cross-motion for partial summary judgment, unanimously reversed on the law to the extent appealed from, and partial summary judgment dismissing the first cause of action, for negligence, is granted to defendant, with costs.

In this medical malpractice action plaintiffs allege that defendant negligently, and without the informed consent of plaintiff Hanna Pan, performed plastic surgery upon her. Plaintiffs moved for summary judgment as to liability on both causes of action, which motion Special Term denied on the ground that issues of fact existed. Plaintiffs have not appealed that ruling. Defendant also moved for partial summary judgment, asserting that he performed the operation in accordance with accepted standards of medical practice and, indeed, that nothing he "did or failed to do was a proximate cause of the injuries claimed in this case."

Defendant's motion should have been granted. Plaintiffs refused to present in opposition any medical evidence that there had been a departure from the accepted standards of medical practice. Instead, counsel argued that the issue need not be reached unless the trier of fact, at trial, should find that defendant had legal consent to operate in the first place.

This misses the point. Plaintiffs' two causes of action are legally distinct, and the absence of rebutting medical evidence demonstrating a departure from accepted medical procedure is fatal to the negligence cause of action. Himber v. Pfizer Laboratories, 82 A.D.2d 776, 440 N.Y.S.2d 649; CPLR 3212 See also Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718; Baldwin v. Gretz, 65 A.D.2d 876, 410 N.Y.S.2d 394.