I.M., an infant by his mother and natural guardian T.M., Plaintiff–Respondent, v. HOSPITAL FOR SPECIAL SURGERY (2026)

Barker Patterson Nichols, LLP, Garden City (Adonaid Medina of counsel), for Hospital for Special Surgery, appellant.

Newfield Biondo & Carlino LLC, White Plains (James S. Newfield of counsel), for Visting Nurse Service of New York, Visting Nurse Service of New York Home Care, Visting Nurse Service of New York Home Care II, appellants.

Jason Levine, New York, for respondent.

Order, Supreme Court, New York County (Judith N. McMahon, J.), entered on or about September 11, 2025, which, to the extent appealed from, denied the motions for summary judgment of defendant Hospital for Special Surgery (HSS) and defendants Visiting Nurse Service of New York Home Care II and Visiting Nurse Service of New York (collectively VNS) dismissing plaintiff's claims related to the placement on plaintiff of a spica cast by HHS and VNS's care for plaintiff related to the cast, unanimously reversed, on the law, without costs, the motions granted, and the complaint dismissed.  The Clerk is directed to enter judgment accordingly.

Plaintiff does not dispute that HSS met its initial burden as a proponent of summary judgment in a medical malpractice case to establish that its treatment comported with good and accepted practice (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324–325 [1986] ).  However, plaintiff argues that VNS failed to satisfy its initial prima facie burden, alleging that VNS's expert's affirmation is conclusory in nature and fails to address that the size and staging of the pressure wound allegedly caused by the spica cast remained constant for over a month between June 4 and July 11, 2018.  However, this theory was not pled by plaintiff in his amended bill of particulars.  Accordingly, VNS was not required to address the claim in order to satisfy its prima facie burden (see Karanevich–Dono v. Haas, 231 AD3d 576, 577–578 [1st Dept 2024] ).

In opposition to both defendants' motions for summary judgment, plaintiff failed to present admissible evidence that demonstrates the existence of a triable issue of fact.  Plaintiff's expert, an internist with a specialty in geriatric care, failed to profess that he had the requisite knowledge to opine either on the application of a post-orthopedic surgery spica cast or the standards of care for a visiting nurse (see Atkins v. Beth Abraham Health Servs., 133 AD3d 491, 492 [1st Dept 2015];  Fortich v. Ky–Miyasaka, 102 AD3d 610 [1st Dept 2013] ).  Further, plaintiff's theory that HSS applied the spica cast too tightly was not previously pled (see Biondi v. Behrman, 149 AD3d 562, 563–564 [1st Dept 2017], lv dismissed in part & denied in part 30 NY3d 1012 [2017] ).

Additionally, the theories offered by plaintiff's expert in opposition to the motions are unsupported by the record (see Cabrera v. Golden, 231 AD3d 149, 155 [1st Dept 2024];  Bogin v. Metz, 180 AD3d 404, 405 [1st Dept 2020] ).  There is no evidence apart from the infant's expert's conclusory opinion, that the pressure ulcer occurred because HSS negligently applied the infant's cast.  Plaintiff's claims that VNS should have modified the infant's care plan are fundamentally flawed since its role as a visiting nurse service was to carry out the instructions of the infant's team at HHS, not to make independent medical decisions, and it is undisputed that the wound ultimately healed utilizing the initial treatment plan (see Toth v Community Hosp. at Glen Cove, 22 N.Y.2d 255, 265 [1968];  Bialick v. Camins, 135 AD3d 479, 479 [1st Dept 2016];  Yakubov v. Jamil, 121 AD3d 884, 885 [2d Dept 2014] ).