THOMPSON v. ORNER (2007)

In an action to recover damages for medical malpractice and lack of informed consent, etc., the defendants Huntington Hospital, Shahnaz Orner, and Marie J. Brignol appeal from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated May 19, 2005, as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants Huntington Hospital, Shahnaz Orner, and Marie J. Brignol are granted.

 “The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage” (Anderson v. Lamaute, 306 A.D.2d 232, 233, 761 N.Y.S.2d 87).  “[O]n a motion for summary judgment, a defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby” (Williams v. Sahay, 12 A.D.3d 366, 368, 783 N.Y.S.2d 664).   In opposition, “a plaintiff must submit a physician's affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor's opinion that the defendant's omissions or departures were a competent producing cause of the injury” (Domaradzki v. Glen Cove Ob/Gyn Assocs., 242 A.D.2d 282, 660 N.Y.S.2d 739).  “General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment” (DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674).

 Here, in support of those branches of their motion which were for summary judgment, the defendants Huntington Hospital, Shahnaz Orner, and Marie J. Brignol (hereinafter the defendants) submitted an expert affidavit and deposition testimony which demonstrated that it was within acceptable standards of medical practice to continue gentamicin treatment even after the receipt of negative test results for sepsis, as the defendants reasonably continued to suspect sepsis and were concerned about the reliability of the tests, and that, even if it were not acceptable, the alleged departure did not cause the injury.   The defendants thus satisfied their initial burden (see Williams v. Sahay, supra;  Reyz v. Khelemsky, 10 A.D.3d 714, 714-715, 781 N.Y.S.2d 913;  Estate of Mollo v. Rothman, 284 A.D.2d 299, 725 N.Y.S.2d 560;  Bellino v. Spatz, 233 A.D.2d 355, 650 N.Y.S.2d 751).   The conclusory expert affidavit submitted in opposition to the motion was insufficient to raise a triable issue of fact, as it did not address the assertions made by the defendants' expert or otherwise explain why the continuation of gentamicin treatment was a departure (see Furey v. Kraft, 27 A.D.3d 416, 418, 812 N.Y.S.2d 590;  DiMitri v. Monsouri, supra;  Holbrook v. United Hosp. Med. Ctr., 248 A.D.2d 358, 359, 669 N.Y.S.2d 631;  cf. Taylor v. Nyack Hosp., 18 A.D.3d 537, 538, 795 N.Y.S.2d 317) or state that such departure was a competent producing cause of the injury (see Jonassen v. Staten Is. Univ. Hosp., 22 A.D.3d 805, 806, 803 N.Y.S.2d 700;  Sheridan v. Bieniewicz, 7 A.D.3d 508, 510, 776 N.Y.S.2d 318;  Dellacona v. Dorf, 5 A.D.3d 625, 774 N.Y.S.2d 776;  Prete v. Rafla-Demetrious, 224 A.D.2d 674, 676, 638 N.Y.S.2d 700;  cf. Taylor v. Nyack Hosp., supra ).

 In support of that branch of the motion which was for summary judgment dismissing the cause of action sounding in lack of informed consent, the defendants established their entitlement to judgment as a matter of law.   In light of their failure to raise a triable issue as to proximate cause, the plaintiffs cannot sustain a cause of action predicated on lack of informed consent (see Viola v. Blanco, 1 A.D.3d 506, 507, 767 N.Y.S.2d 248;  Mondo v. Ellstein, 302 A.D.2d 437, 438, 754 N.Y.S.2d 579). In any event, the plaintiffs have failed to raise a triable issue as to whether a reasonably prudent person in their position would have acceded to the gentamicin treatment to ameliorate the potentially life-threatening condition that their newborn son may have sustained if they had been fully informed of the risks, benefits and alternatives (see Public Health Law § 2805-d [3];  Agnese v. Cattani, 291 A.D.2d 515, 516, 737 N.Y.S.2d 868;  Dunlop v. Sivaraman, 272 A.D.2d 570, 570-571, 709 N.Y.S.2d 419;  Berger v. Becker, 272 A.D.2d 565, 566, 709 N.Y.S.2d 418;  Innucci v. Bauersachs, 201 A.D.2d 460, 607 N.Y.S.2d 130;  cf. Haggerty v. Wyeth Ayerst Pharms., 11 A.D.3d 511, 512-513, 782 N.Y.S.2d 842).   Accordingly, those branches of the defendants' motion which were for summary judgment dismissing the complaint insofar as asserted against them should have been granted.