PEYNADO v. WOODHULL MEDICAL AND MENTAL HEALTH CENTER (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Consuelo Mallafre Melendez, J.), dated August 22, 2023.  The order, insofar as appealed from, granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging medical malpractice.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action, inter alia, to recover damages for medical malpractice against the defendants, Woodhull Medical and Mental Health Center and New York City Health and Hospitals Corporation.  The plaintiff alleged, among other things, that the defendants deviated from standard medical practice in failing to assist the plaintiff to the bathroom “when he grew dizzy and his vision became blurry due to an allergic/adverse reaction to contrast materials,” causing him to fall and sustain injuries.  The plaintiff also alleged that the defendants failed to recognize that he “was experiencing an allergic/adverse reaction despite the development of a rash, blurred vision, loss of balance, and dizziness.”  The defendants moved, inter alia, for summary judgment dismissing the cause of action alleging medical malpractice.  The Supreme Court, among other things, granted that branch of the defendants’ motion.  The plaintiff appeals.

“The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury” (Avgi v. Policha, 232 A.D.3d 838, 839, 222 N.Y.S.3d 597 [internal quotation marks omitted];  see Murray v. Central Is. Healthcare, 205 A.D.3d 1036, 1037, 169 N.Y.S.3d 118 ).  “ ‘In moving for summary judgment dismissing a cause of action alleging medical malpractice, a defendant must establish, prima facie, that there was no departure or deviation from the accepted standard of care or that such departure or deviation was not a proximate cause of any injury to the plaintiff’ ” (Daniels v. Pisarenko, 222 A.D.3d 831, 832, 199 N.Y.S.3d 693, quoting Attia v. Klebanov, 192 A.D.3d 650, 651, 143 N.Y.S.3d 408).  “Once a defendant has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact as to the elements on which the defendant met the prima facie burden” (Piazza v. NYU Hosps. Ctr., 208 A.D.3d 525, 526, 173 N.Y.S.3d 293;  see Murray v. Central Is. Healthcare, 205 A.D.3d at 1037, 169 N.Y.S.3d 118).  “To rebut the defendant's prima facie showing, a plaintiff must submit an expert opinion that specifically addresses the defense expert's allegations” (Pirri–Logan v. Pearl, 192 A.D.3d 1149, 1150, 145 N.Y.S.3d 545;  see Daniels v. Pisarenko, 222 A.D.3d at 833, 199 N.Y.S.3d 693).

“General and conclusory allegations of medical malpractice, ․ unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant [provider's] summary judgment motion” (Daniels v. Pisarenko, 222 A.D.3d at 832–833, 199 N.Y.S.3d 693 [internal quotation marks omitted];  see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572).  “ ‘In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record’ ” (Daniels v. Pisarenko, 222 A.D.3d at 833, 199 N.Y.S.3d 693, quoting Tsitrin v. New York Community Hosp., 154 A.D.3d 994, 996, 62 N.Y.S.3d 506).

Here, the defendants established, prima facie, that they were entitled to judgment as a matter of law by submitting, inter alia, the plaintiff's medical records, a transcript of the plaintiff's testimony at a hearing pursuant to General Municipal Law § 50–h, a transcript of the plaintiff's deposition testimony, and an expert affirmation of a physician board certified in cardiology and nuclear cardiology.  The defendants’ expert opined that the defendants did not deviate from accepted medical practice in the treatment and care of the plaintiff and that any deviation was not a proximate cause of the plaintiff's injuries (see Avgi v. Policha, 232 A.D.3d at 840, 222 N.Y.S.3d 597;  Daniels v. Pisarenko, 222 A.D.3d at 833, 199 N.Y.S.3d 693;  Pirri–Logan v. Pearl, 192 A.D.3d at 1151, 145 N.Y.S.3d 545).  In opposition, the evidence submitted by the plaintiff, including an expert affirmation, failed to raise a triable issue of fact.  The opinion of the plaintiff's expert that the defendants’ alleged deviations from accepted medical practice were a proximate cause of the plaintiff's injuries was conclusory and speculative and failed to address specific assertions made by the defendants’ expert (see Nisevich v. Shorefront Ctr. for Rehabilitation & Nursing Care, 216 A.D.3d 981, 983, 188 N.Y.S.3d 684 ;  Attia v. Klebanov, 192 A.D.3d at 652, 143 N.Y.S.3d 408).  Moreover, portions of the opinion of the plaintiff's expert were contradicted by the record and were thus insufficient to raise a triable issue of fact (see Attia v. Klebanov, 192 A.D.3d at 652, 143 N.Y.S.3d 408).

Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging medical malpractice.

DUFFY, J.P., WOOTEN, WARHIT and HOM, JJ., concur.