PLATO v. St. Luke's Cornwall Hospital, successor by merger to St. Luke's Hospital of Newburgh, respondent. (2008)

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Horowitz, J.), as granted that branch of motion of the defendant St. Luke's Cornwall Hospital, successor by merger to St. Luke's Hospital of Newburgh, which was for summary judgment dismissing so much of the complaint as sought to recover damages against it for the post-operative care provided to the plaintiff's decedent by its nursing staff and anesthesiologist.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion which was for summary judgment dismissing so much of the complaint as sought to recover damages against the defendant St. Luke's Cornwall Hospital, successor by merger to St. Luke's Hospital of Newburgh, for the post-operative care provided to the plaintiff's decedent by its nursing staff and anesthesiologist is denied.

 “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” (Rebozo v. Wilen, 41 A.D.3d 457, 458, 838 N.Y.S.2d 121;  see Thompson v. Orner, 36 A.D.3d 791, 791-792, 828 N.Y.S.2d 509).   On a motion for summary judgment, a defendant “has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby” (Rebozo v. Wilen, 41 A.D.3d at 458, 838 N.Y.S.2d 121;  see Williams v. Sahay, 12 A.D.3d 366, 368, 783 N.Y.S.2d 664).

 In the instant case, the defendant St. Luke's Cornwall Hospital, successor by merger to St. Luke's Hospital of Newburgh (hereinafter the hospital), failed to demonstrate its entitlement to judgment as a matter of law dismissing so much of the complaint as sought to recover damages based upon post-operative care provided by its nursing staff and anesthesiologist to the plaintiff's decedent (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   The affidavit of the hospital's expert regarding the actions of the nursing staff was based on disputed facts (see Muscatello v. City of New York, 215 A.D.2d 463, 464, 627 N.Y.S.2d 567), and made no specific reference to the post-operative care provided by the resident anesthesiologist (see Savage v. Franco, 35 A.D.3d 581, 583, 827 N.Y.S.2d 210;  Guerin v. North Shore Univ. Hosp., 13 A.D.3d 481, 482, 787 N.Y.S.2d 349).

Therefore, the burden did not shift to the plaintiff to raise a triable issue of fact in response, and, regardless of the sufficiency of the plaintiff's showing, summary judgment was not warranted with respect to the claims alleging medical malpractice in connection with the post-operative care provided by the hospital's nursing staff and resident anesthesiologist (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  see also Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Drago v. King, 283 A.D.2d 603, 725 N.Y.S.2d 859).