LOMAX v. Bronx Lebanon Hospital, Defendant. (2019)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered July 17, 2015, which granted the motion of defendant New York City Health & Hospitals Corp. (HHC) for summary judgment dismissing the complaint, unanimously affirmed, without costs.  Appeal from judgment, same court and Justice, entered August 24, 2015, dismissing the complaint as against defendant Bronx Lebanon Hospital, unanimously dismissed, without costs, as abandoned.

HHC made a prima facie showing that it did not depart from good and accepted medical practice and that any departure was not a proximate cause of plaintiff's injuries by submitting an affirmation from a pediatric neurologist, who opined that imaging of plaintiff's brain was not indicated when he presented to Lincoln Hospital and North Central Bronx Hospital because he had suffered only one seizure with fever and that plaintiff's injuries were not caused by his arterial venous malformation (AVM) (see Roques v. Noble, 73 A.D.3d 204, 206, 899 N.Y.S.2d 193 [1st Dept. 2010]).

Plaintiff's doctor's affidavit was insufficient because it did not indicate that the doctor possessed the requisite knowledge necessary to make a determination of the issues presented (Limmer v. Rosenfeld, 92 A.D.3d 609, 609, 939 N.Y.S.2d 50 [1st Dept. 2012]). In any event, plaintiff failed to meet his burden in opposition with the affirmation of a physician because, among other things, the physician did not contradict the opinion of HHC's pediatric neurologist that imaging was not indicated and the physician did not opine that plaintiff's damages were caused by HHC's delayed diagnosis of his seizure condition and discovery of his AVM (see e.g. Feliz v. Beth Israel Med. Ctr., 38 A.D.3d 396, 833 N.Y.S.2d 23 [1st Dept. 2007]).

We have considered plaintiff's remaining arguments and find them unavailing.