FAY v. SATTERLY RLLP (2018)

MEMORANDUM AND ORDER

Plaintiff, as administrator of the decedent's estate and guardian of the property of decedent's son, commenced this medical malpractice and wrongful death action seeking damages for the death of decedent following elective spinal surgery.  According to plaintiff, defendant Clyde H. Satterly, M.D., while employed by defendant Family Medicine Medical Service Group, RLLP (collectively, defendants), was negligent in, inter alia, clearing decedent for elective surgery despite the presence of an occult infection during Dr. Satterly's examination of decedent on June 10, 2013.  The surgery was performed on June 19, 2013, and decedent died five days later due to cardiac arrest as a consequence of sepsis, a systemic inflammatory response to infection.  Supreme Court granted defendants' motion for summary judgment dismissing the complaint against them.  We reverse.

Even assuming, arguendo, that defendants met their initial burden on their motion, we agree with plaintiff that the affidavit of her medical expert raised triable issues of fact (see Selmensberger v. Kaleida Health, 45 A.D.3d 1435, 1436, 845 N.Y.S.2d 659 [4th Dept. 2007];  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).  Contrary to defendants' contention, we conclude that plaintiff's expert, a board certified anesthesiologist, was qualified to offer an opinion about the performance of a presurgical clearance examination by a primary care physician (see generally Diel v. Bryan, 71 A.D.3d 1439, 1440, 896 N.Y.S.2d 782 [4th Dept. 2010] ), inasmuch as the expert possessed the requisite skill, training, knowledge and experience to render a reliable opinion with respect to the standard of care applicable in this case (see id.).  We further conclude that “[t]he conflicting opinions of the experts for plaintiff and defendant[s] with respect to ․ defendant[s'] alleged deviation[s] from the accepted standard of medical care present credibility issues that cannot be resolved on a motion for summary judgment” (Ferlito v. Dara, 306 A.D.2d 874, 874, 761 N.Y.S.2d 902 [4th Dept. 2003] ).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated against defendants Clyde H. Satterly, M.D. and Family Medicine Medical Service Group, RLLP.

Memorandum: