Winegrad v. New York University Medical Center

• Decision Date: 11 October 1984
• Citation: 480 N.Y.S.2d 472,104 A.D.2d 748
• Parties: Muriel WINEGRAD, et al., Plaintiffs-Respondents, v. NEW YORK UNIVERSITY MEDICAL CENTER, Defendant, and Joseph Jacobs, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 472

480 N.Y.S.2d 472

104 A.D.2d 748

Muriel WINEGRAD, et al., Plaintiffs-Respondents, v. NEW YORK UNIVERSITY MEDICAL CENTER, Defendant, and Joseph Jacobs, et al., Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

Oct. 11, 1984.

A.A. Salm, New York City, for plaintiffs-respondents.

D.E. Edbril, Curtis, Mallet-Prevost, Colt & Mosle, New York City, for defendants-appellants.

Before MURPHY, P.J., and KUPFERMAN, ASCH, SILVERMAN and FEIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered May 22, 1984 denying defendants-physicians' cross-motion for summary judgment, is reversed, on the law, without costs, and the cross-motion for summary judgment dismissing the complaint is granted, and the complaint is dismissed as against defendants Jacobs, Pasternack and Ross.

This is an action for damages for medical malpractice.

The complaint and the bill of particulars are uninformatively broad, in essence merely alleging that defendants-physicians failed to properly diagnose and treat plaintiff Muriel Winegrad (hereinafter "plaintiff"), and failed to prescribe acceptable medication. There is no specification of what the failure to diagnose and treatment consisted of or what the proper medication was. Although the bill of particulars does attempt in conclusory terms, to elaborate these charges, it is so broad as to be quite uninformative.

The complaint alleges that plaintiff engaged Dr. Jacobs as a physician "to perform surgery about the area of her eyes" and that in the course of the operation she was "caused to go into a state of shock," and to suffer arrythmia. From Dr. Jacobs' affidavit it appears that he attempted to perform a blepharoplasty ("Plastic surgery involving the reconstruction of part or the whole of an eyelid." ), and that the procedure was not completed since plaintiff developed a cardiac arrythmia.

The operation, and therefore the alleged malpractice, occurred in December 1980. This action was begun in May 1981. In April 1984, three years later, plaintiff made a motion for sanctions with respect to defendants-physicians' alleged failure to comply with orders for examination before trial, and defendants-physicians thereupon cross-moved for summary judgment dismissing the complaint. In their affidavits, each physician states that he or she is a physician duly licensed to practice medicine; that they examined or treated plaintiff and in Dr. Jacobs' case, that he attempted to perform a blepharoplasty, and that the procedure was not completed since plaintiff developed a cardiac arrythmia. Each physician goes on to state that he or she has reviewed the medical records including his or her own records, and "with a reasonable degree of medical certainty that I did not deviate from good and accepted medical practices in my treatment of plaintiff, nor did anything I do or allegedly failed to do proximately cause the plaintiff's alleged injuries."

While these moving affidavits are bare of further detail, this is understandable in view of the lack of specificity in the charges.

Instead of responding to the affidavits by giving expert--or even lay--opinions or facts as to the alleged malpractice, plaintiffs merely submitted their attorney's affirmation discussing the defendants' alleged failure to comply with the orders for examination before trial. This was a wholly insufficient response to the motion for summary judgment. This case is very similar to our recent decision in Neuman v. Greenstein, 99 A.D.2d 1018, 473 N.Y.S.2d 806, where we granted summary judgment dismissing the complaint in a malpractice action. The affidavits in the present case are obviously modeled on those in the Neuman case (the same attorneys represented the defendants-physicians in each case). In the Neuman case, supra, we said:

Where a medical malpractice defendant, in a motion for summary judgment, asserts that he performed the operation in accordance with accepted standards of medical practice, and thus should not have been named as a party defendant, the plaintiff must respond with rebutting medical evidence demonstrating a departure from accepted medical procedure (Pan v. Coburn, 95 A.D.2d 670 ) .... At least some statement of medical expertise in rebuttal was required in order to defeat defendant's motion for summary judgment.

This is not a case where a plaintiff contends that she does not know what the specific malpractice is and will not know it until she has had an opportunity to depose defendants. Here plaintiffs' attorney stated on oral argument that he had this information, including which contra-indicated medication had been administered and the opinions of experts, but that he intentionally chose not to divulge this information before he had completed his examination of defendants. Such tactics come uncomfortably close to attempted litigation by ambush. They are a complete failure to meet the often stated obligation "incumbent upon a who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs, in order to show that the matters set up in his are real and are capable of being established upon a trial." Di Sabato v. Soffes, 9 A.D.2d 297, 301, 193 N.Y.S.2d 184. "We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form." Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718.

MURPHY, P.J., ASCH and SILVERMAN, JJ., concur.

All concur except KUPFERMAN and FEIN, JJ., who dissent in a memorandum by FEIN, J., as follows:

I would affirm the order appealed from which denies the cross motions of defendant doctors for summary judgment and directs that their answers be stricken unless they submit to previously court ordered examinations before trial, which they have thus far successfully evaded in this medical malpractice action. They have blatantly disregarded a prior court order directing that their depositions proceed on a designated date and proceed continuously on a day-to-day basis. After their deposition of plaintiffs was completed, defendant doctors arbitrarily chose their own dates for continuing their depositions, contrary to the court order. When plaintiffs' attorney refused to comply, the doctors proceeded to set up alleged defaults by plaintiffs based on their own schedules.

In response to plaintiffs' appropriate motion to strike their answers, defendant doctors cross moved for summary judgment based on bare bones affidavits. The affidavits of the doctors each state, in haec verba, only:

"I have reviewed all of the medical records pertaining to the above-captioned action including my own records.

"I now state with a reasonable degree of medical certainty that I did not deviate from good and accepted medical practices in my treatment of plaintiff, nor did anything I do or allegedly failed to do proximately cause the plaintiff's alleged injuries. Therefore, I should not have been named as a defendant in the above-entitled...