DICKINSON v. BASSETT HEALTHCARE (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is modified on the law by granting those parts of the motion of defendants Bassett Healthcare and Patrick Dietz, M.D., for summary judgment dismissing the complaint in its entirety against Patrick Dietz, M.D., and for summary judgment dismissing the complaint, as amplified by the bill of particulars, insofar as it asserts a claim of vicarious liability against Bassett Healthcare based on the alleged malpractice of Patrick Dietz, M.D., and as modified the order is affirmed without costs.

Memorandum:  Plaintiff commenced this action seeking damages for injuries he allegedly sustained as a result of malpractice on the part of Patrick Dietz, M.D., and Marshall E. Pedersen, Jr., M.D., employees of Bassett Healthcare (collectively, defendants).  Defendants appeal from an order insofar as it denied in part their respective motions for summary judgment dismissing the complaint against them.

A defendant in a medical malpractice action meets its initial burden on summary judgment by presenting “ ‘factual proof, generally consisting of affidavits, deposition testimony and medical records, to rebut the claim of malpractice by establishing that [he or she] complied with the accepted standard of care or did not cause any injury to the patient’ ” (Webb v. Scanlon, 133 A.D.3d 1385, 1386, 20 N.Y.S.3d 830 [4th Dept. 2015];  see Cole v. Champlain Val. Physicians' Hosp. Med. Ctr., 116 A.D.3d 1283, 1285, 984 N.Y.S.2d 225 [3d Dept. 2014] ).  Here, defendants established on their respective motions both the absence of a departure from the relevant standard of care and the absence of causation, and thus plaintiff was “required to raise a triable issue of fact as to both of those elements” (Swanson v. Raju, 95 A.D.3d 1105, 1107, 945 N.Y.S.2d 101 [2d Dept. 2012] ).

In opposition to the motions, plaintiff submitted the affirmation of his expert, which raised an issue of fact whether Dr. Pedersen departed from accepted medical practice by causing an injury to plaintiff's iliac vein that narrowed the lumen and contributed to the formation of a thrombus.  Supreme Court thus properly denied those parts of defendants' respective motions for summary judgment dismissing the complaint, as amplified by the bill of particulars, insofar as it asserts “claims against Dr. Pedersen surrounding the surgical procedure only” and asserts a claim of vicarious liability against Bassett Healthcare based on the alleged malpractice of Dr. Pedersen (see generally Groff v. Kaleida Health, 161 A.D.3d 1518, 1521, 76 N.Y.S.3d 714 [4th Dept. 2018] ).

We agree with Bassett Healthcare and Dr. Dietz, however, that the court should have granted those parts of their motion for summary judgment dismissing the complaint in its entirety against Dr. Dietz and for summary judgment dismissing the complaint, as amplified by the bill of particulars, insofar as it asserts a claim of vicarious liability against Bassett Healthcare based on the alleged malpractice of Dr. Dietz, and we therefore modify the order accordingly.  In opposition to their motion, plaintiff's expert did not opine that Dr. Dietz caused the iliac vein injury and instead opined that Dr. Dietz deviated from the standard of care by insufficiently examining or testing the iliac vein following Dr. Pedersen's repair.  Inasmuch as plaintiff's expert did not indicate the possible results of any such examination or testing, whether those results should have prompted a different course of treatment, or how Dr. Dietz's alleged departure from the standard of care otherwise caused plaintiff's injury, plaintiff failed to raise an issue of fact as to causation regarding Dr. Dietz (see generally Webb, 133 A.D.3d at 1387, 20 N.Y.S.3d 830).

All concur except Whalen, P.J., and Peradotto, J., who dissent in part and vote to reverse the order insofar as appealed from in accordance with the following memorandum:  We respectfully dissent in part inasmuch as we agree with defendants-appellants that the opposing affirmation of plaintiff's expert is conclusory and insufficient to raise a triable issue of material fact whether the alleged malpractice of defendant Marshall E. Pedersen, Jr., M.D., was a proximate cause of plaintiff's claimed injuries (see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002];  Matos v. Schwartz, 104 A.D.3d 650, 652, 960 N.Y.S.2d 209 [2d Dept. 2013] ).  Plaintiff's expert “failed to articulate, in a nonconclusory fashion” that plaintiff's claimed injuries would not have occurred absent the alleged malpractice of Dr. Pedersen (Goldsmith v. Taverni, 90 A.D.3d 704, 705, 935 N.Y.S.2d 39 [2d Dept. 2011];  see generally Diaz, 99 N.Y.2d at 544, 754 N.Y.S.2d 195, 784 N.E.2d 68;  Matos, 104 A.D.3d at 652, 960 N.Y.S.2d 209).  The expert failed to address the potential causal relationship, raised by Dr. Pedersen in support of his motion for summary judgment, linking plaintiff's preoperative risk factors or the postoperative treatment of plaintiff to his development of a deep vein thrombosis two days after the surgery and the alleged complications resulting from that thrombosis.  We would therefore reverse the order insofar as appealed from and grant defendants' respective motions for summary judgment dismissing the complaint against them in its entirety.