Shahid v. New York City Health & Hospitals Corporation, 2007-02037.
| Decision Date | 22 January 2008 |
| Docket Number | 2007-02037. |
| Citation | 47 A.D.3d 800,2008 NY Slip Op 00484,850 N.Y.S.2d 519 |
| Parties | MARYUM SHAHID, Respondent, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION, Defendant, and BUM Y. PARK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed, on the law, with costs, and the motion of the defendant Bum Y. Park for summary judgment dismissing the complaint insofar as asserted against him is granted.
On November 11, 1999 the 26-month-old plaintiff was seen by the defendant doctor Bum Y. Park, who diagnosed viral tonsillitis and prescribed medications to alleviate her symptoms. Later that day, the plaintiff developed additional symptoms and was admitted to Elmhurst Hospital Center (hereinafter Elmhurst) on November 12, 1999. The admitting diagnosis was pneumonia based upon a chest X-ray and blood test. During the plaintiff's 13-day hospital stay, various antibiotic treatments were administered. Shortly after the plaintiff's discharge from the hospital on November 24, 1999 her mother noticed that the plaintiff did not respond to speech and sound, indicating hearing loss, which was ultimately determined to be complete and permanent.
In 2002 the plaintiff, by her mother, commenced the instant action against the defendant New York City Health & Hospitals Corporation, alleging negligent failure to diagnose and treat meningitis, causing the plaintiff's permanent hearing loss. In 2005, after Park was deposed as a nonparty witness, the plaintiff filed an amended complaint adding him as a defendant and alleging that he negligently failed to test for meningitis during the plaintiff's office visit on November 11, 1999. The Supreme Court denied Park's motion for summary judgment dismissing the complaint insofar as asserted against him, holding that conflicting expert medical opinion evidence raised a triable issue of fact. We reverse.
On a motion for summary judgment in a medical malpractice action, 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 Rebozo v Wilen, 41 AD3d 457, 458 [2007]; Thompson v Orner, 36 AD3d 791, 791-792 [2007]; Williams v Sahay, 12 AD3d 366, 368 [2004]). Here, Park established his prima facie entitlement to judgment as a matter of law by submitting the affidavit of a medical expert who opined, to a reasonable degree of medical certainty, that...
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