TORRES v. SHARAN (2018)

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or about October 21, 2016, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff claims that defendant Alok Sharan, M.D., departed from accepted medical practice in performing cervical spine surgery on him after failing to properly read the pre-operative imaging studies, which would have revealed a Zenker's Diverticulum (ZD) on his spine, and that, after the surgery, the ZD caused him to experience severe dysphagia (difficulty swallowing), among other symptoms, necessitating surgical repair.  Plaintiff also claims that, although he signed a consent form, no one explained to him that dysphagia was one of the risks of the surgery.

Defendants established prima facie that Dr. Sharan did not depart from good and accepted medical practice through an expert opinion that the imaging studies Dr. Sharan ordered before performing the surgery showed plaintiff's cervical spinal herniation, but no other abnormalities, and that Dr. Sharan did not depart from accepted medical practices in the performance of the surgery (see Scalisi v. Oberlander, 96 A.D.3d 106, 120, 943 N.Y.S.2d 23 [1st Dept. 2012] ).  The expert opined that dysphagia is a common complication of cervical fusion surgery, that the surgery did not cause the ZD, and that, in any event, the ZD did not cause or contribute to plaintiff's dysphagia.

In opposition, plaintiff failed to raise an issue of fact, since his expert did not opine on any alleged act of malpractice with any degree of certainty, instead stating his conclusions in terms of possibilities (see e.g. Brown v. Bauman, 42 A.D.3d 390, 392, 841 N.Y.S.2d 229 [1st Dept. 2007] ).

Defendants established prima facie that plaintiff's consent to the surgery was informed, by submitting his signed consent form, which listed “recurrent laryngeal injury” as a risk of the surgery, and their expert's opinion that a reasonable patient with plaintiff's symptoms, having been informed of the possibility of laryngeal complication—a common risk of cervical fusion surgery—would have consented to the surgery (see Shkolnik v. Hospital for Joint Diseases Orthopaedic Inst., 211 A.D.2d 347, 350, 627 N.Y.S.2d 353 [1st Dept. 1995], lv denied 87 N.Y.2d 895, 640 N.Y.S.2d 875, 663 N.E.2d 916 [1995] ).

Plaintiff failed to raise an issue of fact as to informed consent, since his expert's opinion was expressed with no more certainty on this issue than on the malpractice issue (see e.g. Orphan v. Pilnik, 15 N.Y.3d 907, 914 N.Y.S.2d 729, 940 N.E.2d 555 [2010] ).  Furthermore, plaintiff testified that Dr. Sharan discussed the procedures with him, and that he had no questions after the discussion.