VERRIER v. ROBLEDO (2022)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.) entered November 8, 2021, which denied defendants’ motion for summary judgment dismissing the complaint alleging medical malpractice and wrongful death, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

The court should have granted defendants summary judgment dismissing the complaint.  Defendants met their prima facie burden by submitting the affidavit of their medical expert, who opined that defendants did not deviate from good and accepted practice in failing to diagnose plaintiff's decedent with heroin intoxication or to monitor him in the waiting room, where he passed away, in view of the fact that he presented to the emergency room with only a rash on his arm and otherwise normal vital signs (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];  see Coronel v. New York City Health & Hosps. Corp., 47 A.D.3d 456, 456, 848 N.Y.S.2d 876 [1st Dept. 2008]).

In opposition, plaintiff failed to raise a triable issue of fact.  The affidavit of plaintiff's medical expert did not point to any specific deviation from accepted practice by the individual defendants (see Matos v. New York City Health & Hosps. Corp., 181 A.D.2d 505, 505, 581 N.Y.S.2d 31 [1st Dept. 1992]) and, as to defendant hospital, contained only conclusory assertions that its staff departed from good and accepted practice by failing to promptly diagnose and treat the decedent for heroin overdose.  Plaintiff's expert offered no authority for his conclusory opinion that the hospital had an obligation to ensure that emergency room patients did not sleep in the waiting room (see Alvarez, 68 N.Y.2d at 325, 508 N.Y.S.2d 923, 501 N.E.2d 572; Ramirez v. Columbia–Presbyterian Med. Ctr., 16 A.D.3d 238, 239, 790 N.Y.S.2d 606 [1st Dept. 2005]).