Roca v. Perel

• Decision Date: 13 May 2008
• Docket Number: 2007-01548.
• Parties: CHRISTINE ROCA, Respondent, v. ALLEN BRIAN PEREL et al., Appellants.
• Court: New York Supreme Court — Appellate Division

51 A.D.3d 757

859 N.Y.S.2d 203

2008 NY Slip Op 04490

CHRISTINE ROCA, Respondent, v. ALLEN BRIAN PEREL et al., Appellants.

2007-01548.

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

Decided May 13, 2008.

In an action, inter alia, to recover damages for medical malpractice,

the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated January 3, 2007, as denied their cross motion for summary judgment dismissing the complaint, and denied those branches of their separate cross motion which were pursuant to CPLR 3211 (a) (5) to dismiss so much of the complaint as sought to recover damages based on alleged acts of medical malpractice occurring prior to April 22, 2002, or alternatively, prior to May 17, 2000, as time-barred, and pursuant to CPLR 3124 to compel the plaintiff to provide authorizations for all of her mental health records.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants' cross motion which was pursuant to CPLR 3124 to compel the plaintiff to provide authorizations for all of her mental health records, and substituting therefor a provision granting that branch of the cross motion to the extent of directing the plaintiff to provide authorizations for her mental health records, if any, from and after May 26, 1993, and otherwise denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the time for the plaintiff to provide the subject authorizations, if any, shall be within 30 days of service upon the plaintiff of a copy of this decision and order.

From May 26, 1998, until January 2004, the defendant Dr. Allan Brian Perel treated the plaintiff based upon a diagnosis of multiple sclerosis. Magnetic resonance imaging (hereinafter MRIs) taken over the years revealed a lesion on the plaintiff's brain, which grew over time. As a result of an MRI performed on January 8, 2004, the plaintiff was diagnosed as having a hemangioblastoma on her brain, and had to undergo a craniotomy for it to be removed. It is now undisputed that, in fact, she did not have multiple sclerosis.

The plaintiff brought this action against Dr. Perel and his professional corporation, Alpha Neurology, P.C., alleging medical malpractice, among other things, in misdiagnosing her as suffering from multiple sclerosis and in failing to diagnose and treat her brain tumor.

"The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; see Feinberg v Feit, 23 AD3d 517, 518-519 [2005]; Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359 [1998]). Thus, "[o]n a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Chance v Felder, 33 AD3d 645, 645 [2006] [internal quotation marks and citations omitted]; see Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 711 [2007]).

"Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions ... Such credibility issues can only be resolved by a jury" (Feinberg v Feit, 23 AD3d at 519 [citations omitted]; see Graham v Mitchell, 37 AD3d 408 [2007]).

The defendants met their initial burden of demonstrating their entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]) by submitting an expert's affirmation establishing that Perel did not deviate from accepted standards of medical practice and that, in any event, any alleged acts or omissions were not the proximate cause of the plaintiff's damages, as she would have required the same treatment and surgery even if the hemangioblastoma had been diagnosed earlier.

In opposition to the motion, the plaintiff referred to the affirmation of her expert, which refuted the assertions of the defendants' expert, opining that "[t]he non-diagnosis of the brain tumor by Dr. Perel was a departure from good and accepted standards of medical practice and was a proximate cause of the patient's injuries." Contrary to the defendants' contention, the foregoing opinion was neither speculative nor conclusory, but relied on specifically cited evidence in the record. This was sufficient to raise a question of fact precluding the granting of summary judgment (see Alvarez v Prospect Hosp., 68 NY2d at 324; Graham v Mitchell, 37 AD3d 408 [2007]; Feinberg v Feit, 23 AD3d at 519). Accordingly, the Supreme Court correctly denied the defendants' cross motion for summary judgment dismissing the complaint.

The Supreme Court also denied that branch of the defendants' separate cross motion which was pursuant to CPLR 3211 (a) (5) to dismiss so much of the complaint as sought to recover damages based on alleged acts of medical malpractice occurring prior to April 22, 2002, or alternatively, prior to May 17, 2000, as time-barred. The Supreme Court was correct in doing so, since all of the allegations of medical malpractice in the plaintiff's complaint were timely interposed, as the plaintiff was continuously treated by defendant Perel for the same condition giving rise to this action, from and after May 26, 1998.

Pursuant to CPLR 214-a, "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint, the `accrual' comes only at the end of the treatment" (Borgia v City...