Wexelbaum v. Jean

• Decision Date: 25 January 2011
• Parties: Martin WEXELBAUM, et al., plaintiffs-respondents, v. Jean Claude JEAN, et al., appellants, Madhu Saxena, et al., defendants-respondents.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 161

80 A.D.3d 756

Martin WEXELBAUM, et al., plaintiffs-respondents,

v. Jean Claude JEAN, et al., appellants,Madhu Saxena, et al., defendants-respondents.

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

Jan. 25, 2011.

Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael P. Kandler of counsel), for appellants.

Duffy & Duffy, Uniondale, N.Y. (Mary Ellen Duffy and James Wilkens of counsel), for plaintiffs-respondents.

A. GAIL PRUDENTI, P.J., PETER B. SKELOS, JOSEPH COVELLO, and PLUMMER E. LOTT, JJ.

In an action to recover damages for medical malpractice, etc., the defendants Jean Claude Jean and Jean Claude Jean, Physicians, P.C., appeal from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated May 27, 2009, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. Presiding Justice Prudenti has been substituted for the late Justice Fisher. Justice Skelos has been substituted for former Justice Santucci. Justice Covello has been substituted for former Justice Howard Miller ( see 22 NYCRR 670.1[c] ).

ORDERED that the order is affirmed insofar as appealed from, with costs to the plaintiffs-respondents.

The plaintiffs commenced this action against, among others, the appellants, Dr. Jean Claude Jean and his professional corporation, Jean Claude Jean, Physicians, P.C., alleging medical malpractice and related claims. The plaintiffs allege that Jean was negligent in, among other things, failing to properly diagnose and treat a stroke which the plaintiff Martin Wexelbaum allegedly suffered while he was a patient under Jean's care at the defendant Mary Immaculate Hospital.

"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 A.D.2d 420, 421, 754 N.Y.S.2d 674; see Roca v. Perel, 51 A.D.3d 757, 758, 859 N.Y.S.2d 203; Flaherty v. Fromberg, 46 A.D.3d 743, 746, 849 N.Y.S.2d 278). Thus, on 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 ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Roca v. Perel, 51 A.D.3d at 758, 859 N.Y.S.2d 203).

The appellants met their initial burden of demonstrating their entitlement to judgment as a matter of law by submitting an expert's affirmation establishing that Jean did not deviate from accepted standards of medical practice. The expert reached this conclusion since the only approved treatment for this type of stroke, which had to be administered within three hours of the onset of symptoms, was contraindicated in this case because the onset of the stroke occurred before the patient was under Jean's care and the time the stroke occurred could not be determined. Moreover, the patient had symptoms that otherwise would have...