Rebozo v. Wilen

• Decision Date: 05 June 2007
• Docket Number: 2006-03645.
• Citation: 41 A.D.3d 457,2007 NY Slip Op 04812,838 N.Y.S.2d 121
• Parties: STEPHANIE REBOZO, Respondent, v. DANIEL WILEN, Defendant, and DAVID H. ZELEFSKY, Appellant.
• Court: New York Supreme Court — Appellate Division

41 A.D.3d 457

838 N.Y.S.2d 121

2007 NY Slip Op 04812

STEPHANIE REBOZO, Respondent, v. DANIEL WILEN, Defendant, and DAVID H. ZELEFSKY, Appellant.

2006-03645.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided June 5, 2007.

In an action to recover damages for medical malpractice and lack of informed consent, the defendant David H. Zelefsky appeals from an order of the Supreme Court, Richmond County (Gigante, J.), dated March 7, 2006, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is reversed, on the law, with costs, and the motion of the defendant David H. Zelefsky for summary judgment dismissing the complaint insofar as asserted against him is granted.

In January 2000 the plaintiff sustained injuries in a slip-and-fall accident, requiring three surgeries to repair damage to both knees. Her surgeon, the defendant Daniel Wilen, referred the plaintiff to South Shore Rehabilitation and Orthopaedics, where she underwent an extended course of treatment with a physical therapist and also consulted with the defendant David H. Zelefsky (hereinafter the defendant) on two occasions, May 4, 2000 and August 31, 2000. When the swelling, pain, and stiffness in her left knee failed to improve, the plaintiff continued to consult Wilen and other physicians, some of whom concluded that her symptoms were consistent with reflex symptomatic dystrophy (hereinafter RSD), also known as complex regional pain syndrome.

The plaintiff subsequently brought this action to recover damages for medical malpractice and lack of informed consent, alleging, inter alia, that the defendant deviated from accepted standards of care in failing to timely diagnose RSD or to refer her to a specialist in the treatment of RSD, causing her current chronic condition, which requires continued pain management and physical therapy. The Supreme Court denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him, holding that the conflicting expert medical opinion evidence raised a triable issue of fact regarding deviation from good and acceptable medical practice. We reverse.

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage (see Thompson v Orner, 36 AD3d 791 [2007]; Anderson v Lamaute, 306 AD2d 232, 233 [2003]). On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby (see Williams v Sahay, 12 AD3d 366, 368 [2004]). In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury (see Domaradzki v Glen Cove Ob/Gyn Assoc., 242 AD2d 282 [1997]). General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]; Thompson v Orner, supra; DiMitri v Monsouri, 302 AD2d 420, 421 [2003]).

In support of his motion, the defendant submitted an expert's...