Rosenman v. Shrestha

• Decision Date: 26 February 2008
• Docket Number: 2006-10026.
• Citation: 852 N.Y.S.2d 378,2008 NY Slip Op 01737,48 A.D.3d 781
• Parties: JOSEPH ROSENMAN, Respondent, v. SHARAVAN SHRESTHA et al., Defendants, and RAVI LOONA et al., Appellants.
• Court: New York Supreme Court — Appellate Division

48 A.D.3d 781

852 N.Y.S.2d 378

2008 NY Slip Op 01737

JOSEPH ROSENMAN, Respondent, v. SHARAVAN SHRESTHA et al., Defendants, and RAVI LOONA et al., Appellants.

2006-10026.

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

Decided February 26, 2008.

In an action, inter alia, to recover damages for medical malpractice, the defendants Ravi Loona and Ravi Loona, M.D., P.C., appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), entered October 4,

2006, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them, the defendant Samuel Bernard Fineman separately appeals, as limited by his brief, from so much of the same order as denied his motion for summary judgment dismissing the complaint insofar as asserted against him, the defendant Charles H. Bagley separately appeals, as limited by his brief, from so much of the same order as denied that branch of his motion which was for summary judgment dismissing the complaint insofar as asserted against him, and the defendant Flushing Hospital and Medical Center separately appeals from so much of the same order as denied that branch of the motion of the defendants Flushing Hospital and Medical Center and Pankaj Patel which was for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying the motion of the defendants Ravi Loona and Ravi Loona, M.D., P.C., for summary judgment dismissing the complaint insofar as asserted against them and substituting therefor a provision granting the motion, and (2) by deleting the provision thereof denying that branch of the motion of the defendants Flushing Hospital and Medical Center and Pankaj Patel which was for summary judgment dismissing the complaint insofar as asserted against the defendant Flushing Hospital and Medical Center and substituting a provision therefor granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiff to the defendants Ravi Loona and Ravi Loona, M.D., P.C., and the defendant Flushing Hospital and Medical Center, appearing separately and filing separate briefs, and one bill of costs payable by the defendants Samuel Bernard Fineman and Charles H. Bagley to the plaintiff.

The plaintiff, who suffered from migraine headaches, and whose use of a particular narcotic to treat such headaches sharply increased over a few months' time, alleged, inter alia, that the defendant Samuel Bernard Fineman, who was his neurologist, departed from good and accepted medical practice by continuing to prescribe that narcotic to him. The plaintiff further alleged that as a result of his use of the narcotic, he suffered from, among other injuries, compartment syndrome in his arm and encephalopathy.

The plaintiff sought a second opinion regarding his use of the narcotic from the defendant Charles H. Bagley, who was also a neurologist. The plaintiff alleged, inter alia, that Bagley, who was aware of the sharp increase in the plaintiff's use of the narcotic, departed from good and accepted medical practice in failing to investigate and eliminate the plaintiff's use of the narcotic.

During the course of time that the plaintiff was using the narcotic, he was, on two occasions, taken to the defendant Flushing Hospital and Medical Center (hereinafter the Hospital) because he was unconscious for prolonged periods of time, allegedly as a result of his use of the narcotic. After the first episode, the plaintiff was evaluated in the Hospital by the defendant Ravi Loona, who was an orthopedic surgeon. The plaintiff alleged, inter alia, that Loona improperly diagnosed him with a contused arm, instead of compartment syndrome.

Regarding the Hospital, the plaintiff alleged, inter alia, that after the first episode of unconsciousness, the Hospital's staff departed from good and accepted medical practice in failing to investigate and eliminate his use of the narcotic. The plaintiff further alleged that after the second episode, the Hospital's staff departed from good and accepted medical practice in belatedly diagnosing his compartment syndrome.

The Supreme Court correctly denied Fineman's motion for summary judgment dismissing the complaint insofar as asserted against him. The requisite elements of proof in a medical malpractice action are a deviation or departure from good and accepted medical practice and that...