Simpson v. Edghill

• Decision Date: 06 February 2019
• Docket Number: Index No. 100166/16,2018–02261
• Parties: Broderick SIMPSON, Respondent, v. Benjeil EDGHILL, etc., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 737
93 N.Y.S.3d 399

Broderick SIMPSON, Respondent,
v.
Benjeil EDGHILL, etc., et al., Appellants.

2018–02261
Index No. 100166/16

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

Argued - October 12, 2018
February 6, 2019

Silverson, Pareres & Lombardi LLP, New York, N.Y. (Rachel H. Poritz of counsel), for appellants.

Krentsel & Guzman (Michael H. Zhu, Esq., P.C., New York, NY, of counsel) for respondent.

ALAN D. SCHEINKMAN, P.J., WILLIAM F. MASTRO, JOSEPH J. MALTESE, BETSY BARROS, JJ.

DECISION & ORDER

169 A.D.3d 737

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

In November 2014, the plaintiff was treated by the defendant Benjeil Edghill, an ophthalmologist, for trouble focusing and pain in his right eye, and a drooping right upper eyelid. After examining the plaintiff and performing tests, Edghill suspected that the plaintiff was suffering from glaucoma and instructed him to return in six months for additional tests, or sooner if his symptoms worsened or failed to improve. Approximately six months later, the plaintiff was diagnosed with a meningioma, a noncancerous tumor of the membranes surrounding the brain, and underwent tumor resection surgery.

The plaintiff commenced this medical malpractice action against Edghill and his employer, Advantage Care Physicians (hereinafter Advantage), alleging, inter alia, that they were negligent in failing to properly diagnose the source of the plaintiff's symptoms and in failing to refer him for further testing. The plaintiff also asserted a cause of action to recover damages for negligent hiring against Advantage. At the completion of discovery, the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion, and the defendants appeal.

In order to establish the liability of a physician for medical malpractice, a plaintiff must prove "that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the

169 A.D.3d 738

plaintiff's injuries" ( Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ). A defendant moving for summary judgment in a medical malpractice action must demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ), with respect to at least one of those elements (see DiLorenzo v. Zaso, 148 A.D.3d 1111, 1112, 50 N.Y.S.3d 503 ; Cham v. St. Mary's Hosp. of Brooklyn, 72 A.D.3d 1003, 1004, 901 N.Y.S.2d 65 ). Where a defendant physician makes a prima facie showing on both elements, "the burden shifts to the plaintiff to rebut the defendant's showing by...