SHATTUCK v. ANAIN (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action alleging that she suffered serious and permanent injuries as a result of defendant's alleged medical malpractice during and following plaintiff's bilateral reduction mammoplasty.  We conclude that Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint.

Contrary to plaintiff's contention, defendant met her initial burden on the motion by “ ‘present[ing] factual proof, generally consisting of affidavits, deposition testimony and medical records, to rebut the claim of malpractice by establishing that [she] complied with the accepted standard of care’ ” (Webb v. Scanlon, 133 A.D.3d 1385, 1386, 20 N.Y.S.3d 830 [4th Dept. 2015];  see Macaluso v. Pilcher, 145 A.D.3d 1559, 1560, 43 N.Y.S.3d 658 [4th Dept. 2016]).  Here, defendant submitted her own affidavit to meet her burden of proof, and we reject plaintiff's contention that the affidavit was insufficient.  “A defendant physician may submit his or her own affidavit to meet that [initial] burden, but that affidavit must be ‘detailed, specific and factual in nature’ ․ and must ‘address each of the specific factual claims of negligence raised in [the] plaintiff's bill of particulars’ ” (Webb, 133 A.D.3d at 1386, 20 N.Y.S.3d 830;  see Macaluso, 145 A.D.3d at 1560, 43 N.Y.S.3d 658).  Contrary to plaintiff's contention, we conclude that defendant, a board certified plastic and reconstructive surgeon, was qualified to render an opinion on post-surgical wound care (see generally Fay v. Satterly, 158 A.D.3d 1220, 1221, 70 N.Y.S.3d 268 [4th Dept. 2018];  Chipley v. Stephenson, 72 A.D.3d 1548, 1549, 900 N.Y.S.2d 538 [4th Dept. 2010]).

In opposition to the motion, plaintiff failed to raise a triable issue of fact.  We conclude that nothing in the medical records submitted by plaintiff raised a triable issue of fact regarding defendant's alleged deviation from the standard of care.  Plaintiff also submitted the affidavit of a “Registered Professional Nurse—certified as a Wound Care Specialist” in opposition to defendant's motion.  Even assuming, arguendo, that a registered nurse is qualified to render a medical opinion with respect to the relevant standards of wound care (see Carthon v. Buffalo Gen. Hosp. Deaconess Skilled Nursing Facility Div., 83 A.D.3d 1404, 1405, 921 N.Y.S.2d 746 [4th Dept. 2011];  see generally Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 398–399, 34 N.E.2d 367 [1941];  People v. Rice, 159 N.Y. 400, 410, 54 N.E. 48 [1899];  Zarnoch v. Williams, 83 A.D.3d 1373, 1373, 919 N.Y.S.2d 694 [4th Dept. 2011], lv denied 17 N.Y.3d 708, 2011 WL 4027425 [2011]), we conclude that the affidavit failed to establish that the affiant possessed the requisite skill, training, education, knowledge, or experience from which it can be assumed that the information or opinion in the affidavit is reliable (see Gates v. Longden, 120 A.D.3d 980, 981, 991 N.Y.S.2d 229 [4th Dept. 2014];  Daum v. Auburn Mem. Hosp., 198 A.D.2d 899, 899, 604 N.Y.S.2d 449 [4th Dept. 1993]).