Donald Taylor, Plaintiff, v. STRAUCH (2021)

Order, Supreme Court, Bronx County (George J. Silver, J.), entered on or about May 8, 2020, which, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants made a prima facie showing of entitlement to judgment as a matter of law in this medical malpractice action.  Defendants submitted an affirmation from a medical expert establishing that the treatment provided to the injured plaintiff comported with good and accepted practice, that the nature and extent of the complications were known risks of the procedure, and that the scar on her abdomen, which the examining expert described as a laparoscopy scar, was unrelated to the surgery at issue (see Coronel v. New York City Health & Hosps. Corp., 47 A.D.3d 456, 848 N.Y.S.2d 876 [1st Dept. 2008]).  Defendants also made the necessary showing that informed consent was obtained by submitting the written consent form that plaintiff signed indicating her understanding of the possible risks of the procedure (see Public Health Law § 2805–d[1];  Lynn G. v. Hugo, 96 N.Y.2d 306, 309, 728 N.Y.S.2d 121, 752 N.E.2d 250 [2001];  Matter of Colletti v. Schiff, 98 A.D.3d 887, 951 N.Y.S.2d 139 [1st Dept. 2012]) along with corroborating medical records.  Dr. Strauch's notations in plaintiff's medical records indicate that during his consultation with her they discussed her family history of keloid tendency, and the particular risks and benefits of, and alternatives to, the surgery.  Plaintiff's argument that Dr. Strauch's deposition testimony regarding habit is inadmissible does not warrant a different result, because defendants did not need to rely on habit testimony to establish their prima facie case (see Guido v. Fielding, 190 A.D.3d 49, 54, 134 N.Y.S.3d 34 [1st Dept. 2020]).

It was within the motion court's discretion to permit defendants to cure the technical defects in their expert's affirmation with an amended affirmation on reply that included the term “under penalty of perjury” (see Poivan–Traub v. Chaglassian, 187 A.D.3d 653, 131 N.Y.S.3d 146 [1st Dept. 2020];  Stewart v. Goldstein, 175 A.D.3d 1214, 109 N.Y.S.3d 286 [1st Dept. 2019]).

In opposition, plaintiff failed to raise a triable issue of fact.  Notably, her expert did not claim that the results of the procedure were due to any deviation in accepted medical care, nor did he state that the surgery's results were outside the scope of expected complications, or that the abdominal scar was in any way related to the procedure.  At her deposition, plaintiff identified the informed consent form and testified that she signed it, with no qualifications.  Thus, plaintiff's affidavit containing a belated claim that the consent that she signed did not contain the description of possible risks and complications at the time she signed it, and that portion must have been added later, created only a feigned issue of fact insufficient to defeat defendants' motion (see Pinto v. Selinger Ice Cream Corp., 47 A.D.3d 496, 850 N.Y.S.2d 70 [1st Dept. 2008];  Telfeyan v. City of New York, 40 A.D.3d 372, 373, 836 N.Y.S.2d 71 [1st Dept. 2007]).  Furthermore, since the expert's conclusions were based entirely upon plaintiff's tailored affidavit, the expert's affirmation also failed to raise a triable issue of fact (Feaster–Lewis v. Rotenberg, 93 A.D.3d 421, 422, 939 N.Y.S.2d 421 [1st Dept. 2012], lv denied 19 N.Y.3d 803, 2012 WL 1591443 [2012]).