HENRY v. DUNCAN (2019)

Order, Supreme Court, New York County (George J. Silver, J.), entered February 14, 2018, which granted defendants' motion for summary judgment dismissing the complaint sounding in medical malpractice, unanimously affirmed, without costs.

Plaintiff alleged personal injuries resulting from defendants' negligence in the performance of a pelvic surgery.  Defendants established their entitlement to judgment as a matter of law by submitting evidence showing that plaintiff's injury was not a result of a departure from the accepted standard of medical practice, but rather due to a known risk that may occur despite competent surgical care having been provided (see Alvarado v. Miles, 32 A.D.3d 255, 820 N.Y.S.2d 39 [1st Dept. 2006], affd 9 N.Y.3d 902, 843 N.Y.S.2d 532, 875 N.E.2d 24 [2007] ).

In opposition, plaintiff failed to raise a triable issue of fact.  The evidence plaintiff submitted was speculative, conclusory, and insufficient to raise an issue of fact as to whether defendants departed from the standard of care or whether such alleged departures were a proximate cause of her alleged injuries (see Jackson v Montefiore Med. Center/The Jack D. Weiler Hosp. of the Albert Einstein Coll. of Medicine, 146 A.D.3d 572, 45 N.Y.S.3d 422 [1st Dept. 2017] ).  The injury itself cannot be the only basis to conclude that a departure occurred (Montilla v. St. Luke's–Roosevelt Hosp., 147 A.D.3d 404, 407, 46 N.Y.S.3d 93 [1st Dept. 2017] ).