DEADWYLER v. NORTH SHORE UNIVERSITY HOSPITAL AT PLAINVIEW (2008)

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Spinola, J.), dated February 23, 2007, as granted the motion of the defendants North Shore University Hospital at Plainview and Francesco Tenti, made at the close of the plaintiffs' case, pursuant to CPLR 4401 and 4401-a for judgment as a matter of law dismissing the complaint insofar as asserted against them, and the separate motion of the defendants Blas Royo, H.I.P. Medical Center, and Andres Ruppert, made at the close of the plaintiffs' case, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against them, and (2) an order of the same court dated April 20, 2007, which denied their motion for leave to reargue.

ORDERED that the appeal from the order dated April 20, 2007, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated February 23, 2007, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The Supreme Court properly granted that branch of the motion of the defendants North Shore University Hospital at Plainview and Francesco Tenti pursuant to CPLR 4401-a for judgment as a matter of law dismissing the cause of action to recover damages based on lack of informed consent insofar as asserted against them since the plaintiffs failed to adduce expert medical testimony in support of the alleged qualitative insufficiency of the consent (see CPLR 4401-a;  Antoine v. Gulmi, 275 A.D.2d 294, 713 N.Y.S.2d 121;  see also Rodriguez v. New York City Health & Hosps. Corp., 50 A.D.3d 464, 858 N.Y.S.2d 99).

The Supreme Court also properly granted those branches of the defendants' separate motions which were pursuant to CPLR 4401 for judgment as a matter of law with respect to the plaintiffs' claim that the defendants North Shore University Hospital, Blas Royo, H.I.P. Medical Center, and Andres Ruppert were negligent in failing to prevent the plaintiff Karen Deadwyler from developing blood clots.

 In order to establish “a prima facie case of liability in a medical malpractice action, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach of the standard was the proximate cause of injury” (Berger v. Becker, 272 A.D.2d 565, 565, 709 N.Y.S.2d 418;  see Elliot v. Long Is. Home, Ltd., 12 A.D.3d 481, 482, 784 N.Y.S.2d 615;  Hanley v. St. Charles Hosp. & Rehabilitation Ctr., 307 A.D.2d 274, 277, 763 N.Y.S.2d 322).  “Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause” (Nichols v. Stamer, 49 A.D.3d 832, 833, 854 N.Y.S.2d 220, quoting Lyons v. McCauley, 252 A.D.2d 516, 517, 675 N.Y.S.2d 375;  see Berger v. Becker, 272 A.D.2d at 566, 709 N.Y.S.2d 418;  Lasek v. Nachtigall, 189 A.D.2d 749, 592 N.Y.S.2d 420).   Here, because the plaintiffs presented no evidence from an expert witness as to the applicable standard of care, they failed to establish a prima facie case of medical malpractice (see Harper v. Findling, 38 A.D.3d 601, 602, 832 N.Y.S.2d 266;  Pace v. Jakus, 291 A.D.2d 436, 437, 737 N.Y.S.2d 123).

The plaintiffs' remaining contentions are without merit.