LOWRY v. MCPHERSON (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated July 7, 2022, and (2) a judgment of the same court dated November 14, 2022.  The order granted the defendants’ motion for summary judgment dismissing the complaint.  The judgment, upon the order, is in favor of the defendants and against the plaintiffs dismissing the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The plaintiffs, as co-administrators of the decedent's estate, commenced this action against the defendants, inter alia, to recover damages for medical malpractice allegedly occurring over the course of two emergency room visits in September 2016.  The defendants moved for summary judgment dismissing the complaint.  In an order dated July 7, 2022, the Supreme Court granted the motion.  Thereafter, the court issued a judgment dated November 14, 2022, upon the order, in favor of the defendants and against the plaintiffs dismissing the complaint.  The plaintiffs appeal.

“A defendant seeking summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries” (Hiltz v. DiLorenzo, 206 A.D.3d 631, 633, 169 N.Y.S.3d 130 [internal quotation marks omitted];  see Pirri–Logan v. Pearl, 192 A.D.3d 1149, 1151, 145 N.Y.S.3d 545;  Messeroux v. Maimonides Med. Ctr., 181 A.D.3d 583, 585, 121 N.Y.S.3d 136).  “Once this showing has been made, the burden shifts to the plaintiff to rebut the defendant's prima facie showing with evidentiary facts or materials so as to demonstrate the existence of a triable issue of fact” (Hiltz v. DiLorenzo, 206 A.D.3d at 633, 169 N.Y.S.3d 130 [internal quotation marks omitted];  see Chillious v. Edouard, 234 A.D.3d 737, 739, 225 N.Y.S.3d 321).  “ ‘To rebut the defendant's prima facie showing, a plaintiff must submit an expert opinion that specifically addresses the defense expert's allegations’ ” (Avgi v. Policha, 232 A.D.3d 838, 839, 222 N.Y.S.3d 597, quoting Pirri–Logan v. Pearl, 192 A.D.3d at 1150, 145 N.Y.S.3d 545).  “While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field ․ the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” (Abruzzi v. Maller, 221 A.D.3d 753, 756, 199 N.Y.S.3d 190 [internal quotation marks omitted];  see Quinones v. Winthrop Univ. Hosp., 230 A.D.3d 1170, 1172, 216 N.Y.S.3d 711).  “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (DiLorenzo v. Zaso, 148 A.D.3d 1111, 1113, 50 N.Y.S.3d 503 [internal quotation marks omitted];  see Hannen v. Nici, 230 A.D.3d 1118, 1120, 218 N.Y.S.3d 127).  “Where no such foundation is laid, the expert's opinion is of no probative value, and is therefore insufficient to meet a party's burden on a summary judgment motion” (Laughtman v. Long Is. Jewish Val. Stream, 192 A.D.3d 677, 678, 143 N.Y.S.3d 97;  see Montanari v. Lorber, 200 A.D.3d 676, 681, 157 N.Y.S.3d 102).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, among other things, a detailed affirmation of their emergency medicine expert.  The expert opined, based on his review of the medical records, that the medical treatment, evaluations, tests, and exams conducted by the defendants were in accordance with the accepted standard of care (see Quinones v. Winthrop Univ. Hosp., 230 A.D.3d at 1172, 216 N.Y.S.3d 711;  Messeroux v. Maimonides Med. Ctr., 181 A.D.3d at 585, 121 N.Y.S.3d 136).

In opposition, the plaintiffs failed to raise a triable issue of fact.  The plaintiffs submitted an affirmation of a physician specializing in vascular surgery that failed to lay a proper foundation to support the reliability of his opinions rendered related to emergency medicine (see Hannen v. Nici, 230 A.D.3d at 1120, 218 N.Y.S.3d 127).  The affirmation did not indicate that the physician had training in emergency medicine or what, if anything, the physician did to become familiar with the standard of care for that speciality (see id.;  Montanari v. Lorber, 200 A.D.3d at 681, 157 N.Y.S.3d 102;  Galluccio v. Grossman, 161 A.D.3d 1049, 1052, 78 N.Y.S.3d 196).  The plaintiffs’ expert's opinion, therefore, lacked probative value and was insufficient to overcome the defendants’ prima facie showing.  Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.

IANNACCI, J.P., GENOVESI, WOOTEN and LOVE, JJ., concur.