Pirri-Logan v. Pearl

• Decision Date: 31 March 2021
• Docket Number: 2018–03926, 2018–11928,Index No. 67308/14
• Citation: 145 N.Y.S.3d 545,192 A.D.3d 1149
• Parties: Christina PIRRI-LOGAN, et al., appellants, v. Michael PEARL, etc., respondent.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1149

145 N.Y.S.3d 545

Christina PIRRI-LOGAN, et al., appellants,

v.Michael PEARL, etc., respondent.

2018–03926, 2018–11928

Index No. 67308/14

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

Submitted—February 2, 2021

March 31, 2021

Bacotti, Eisig & Spitz, LLP, Melville, N.Y. (Christopher A. Bacotti of counsel), for appellants.

Kaufman Borgeest & Ryan, LLP, Garden City, N.Y. (Jacqueline Mandell and Jason D. Lewis of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated January 25, 2018, and (2) an order of the same court dated September 18, 2018. The order dated January 25, 2018, granted the defendant's motion for summary judgment dismissing the complaint. The order dated September 18, 2018, denied the motion of the plaintiff Christina Pirri–Logan and the separate motion of the plaintiff Scott Logan for leave to renew and reargue their opposition to the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the appeal from so much of the order dated September 18, 2018, as denied those branches of the plaintiffs' separate motions which were for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated January 25, 2018, is affirmed; and it is further,

ORDERED that the order dated September 18, 2018, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is award to the defendant.

The plaintiff Christina Pirri–Logan (hereinafter the injured plaintiff), and her husband suing derivatively, commenced this action, inter alia, to recover damages for medical malpractice and lack of informed consent against the defendant Michael Pearl, a gynecologic oncologist, arising from total abdominal hysterectomy and bilateral salpingo-oophorectomy (hereinafter TAH–BSO) surgery that the defendant performed on the injured plaintiff on March 5, 2013. The complaint, as amplified by the bills of particulars, alleged, inter alia, that the defendant had failed to take a proper history, ignored the injured plaintiff's prior medical history, performed an unnecessary TAH–BSO, performed a TAH–BSO despite negative findings of malignancy or growth, failed to refer the injured plaintiff to appropriate specialists including fertility and mental health professionals prior to surgery, failed to skillfully perform the surgery, failed to obtain proper informed consent, failed to offer the injured plaintiff a reasonable alternative including not having surgery, and failed to heed the injured plaintiff's express wishes and the limitations she placed on her consent.

Following discovery, the defendant moved for summary judgment dismissing the complaint. In an order dated January 25, 2018, the Supreme Court granted the motion. The plaintiffs separately moved for leave to renew and reargue their opposition to the defendant's motion, and in an order dated September 18, 2018, the Supreme Court denied the motions. The plaintiffs appeal from both orders.

"In a medical malpractice action, a defendant moving for summary judgment bears the initial burden of establishing either that there was no departure from good and accepted medical practice or that any departure was not a proximate cause of the plaintiff's injuries" ( Kogan v. Bizekis, 180 A.D.3d 659, 660, 115 N.Y.S.3d 690 ). " ‘In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's complaint and bill of particulars’ " ( id. at 660, 115 N.Y.S.3d 690, quoting Sheppard v. Brookhaven Mem. Hosp. Med. Ctr., 171 A.D.3d 1234, 1235, 98 N.Y.S.3d 629 ). To rebut the defendant's prima facie showing, a plaintiff must submit an expert opinion that specifically addresses the defense expert's allegations (see DiLorenzo v. Zaso, 148 A.D.3d 1111, 1112, 50 N.Y.S.3d 503 ). "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" ( Feinberg v. Feit, 23 A.D.3d 517, 519, 806 N.Y.S.2d 661 ). "General and conclusory allegations of medical malpractice, however, unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician's summary judgment motion" ( Myers v. Ferrara, 56 A.D.3d 78, 84, 864 N.Y.S.2d 517 ).

Here, the defendant established his prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged medical malpractice by submitting an expert affirmation. The affirmation set forth a detailed account of the injured plaintiff's medical records, including the defendant's operative report. The defendant's expert opined that the March 5, 2013, surgery did not depart from good and accepted standards of medical practice and was not a proximate cause of the injured plaintiff's injuries, and he specifically rebutted each allegation made in the plaintiffs' bills of particulars (see Gilmore v. Mihail, 174 A.D.3d 686, 687, 105 N.Y.S.3d 504 ; Khosrova v. Westermann, 109 A.D.3d 965, 966, 971 N.Y.S.2d 565 ; Andreoni v. Richmond, 82 A.D.3d 1139, 1139, 920 N.Y.S.2d 225 ). In opposition, the affirmation of the plaintiffs' expert failed to raise a triable issue of fact because the affirmation was conclusory and speculative, and failed to address the specific...