FETEHA v. SCHEINMAN (2019)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Robert L. Nahman, J.), entered November 25, 2015.  The judgment, upon the granting of the defendant's motion pursuant to CPLR 4401, made at the close of the plaintiff's case, for judgment as a matter of law dismissing the complaint, is in favor of the defendant and against her dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff commenced this action sounding in medical malpractice to recover damages for injuries she sustained arising from an elective brachioplasty surgery performed by the defendant.  At the close of the plaintiff's case at a jury trial, the Supreme Court granted the defendant's motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint.  Judgment was entered accordingly, dismissing the complaint.  The plaintiff appeals.

To establish a prima facie case of liability in a medical malpractice action, “a plaintiff must prove that the defendant deviated or departed from accepted community standards of practice and that such departure was a proximate cause of the plaintiff's injuries” (Colletti v. Deutsch, 150 A.D.3d 1196, 1197, 54 N.Y.S.3d 657 [internal quotation marks omitted];  see Keun Young Kim v. Lenox Hill Hosp., 156 A.D.3d 774, 67 N.Y.S.3d 53;  Kerrins v. South Nassau Communities Hosp., 148 A.D.3d 795, 48 N.Y.S.3d 734;  Leavy v. Merriam, 133 A.D.3d 636, 20 N.Y.S.3d 117).  “ ‘Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause’ ” (Dray v. Staten Is. Univ. Hosp., 160 A.D.3d 614, 618, 75 N.Y.S.3d 59, quoting Nichols v. Stamer, 49 A.D.3d 832, 833, 854 N.Y.S.2d 220;  see Lyons v. McCauley, 252 A.D.2d 516, 517, 675 N.Y.S.2d 375).

To succeed on a motion for judgment as a matter of law pursuant to CPLR 4401, a defendant has the burden of showing that there is no rational process by which the jury could find in favor of the plaintiff and against the moving defendant (see Szczerbiak v. Pilat, 90 N.Y.2d 553, 664 N.Y.S.2d 252, 686 N.E.2d 1346).  In determining whether the defendant has met this burden, a court must accept the plaintiff's evidence as true and accord the plaintiff the benefit of every favorable inference which can reasonably be drawn from the evidence presented at trial (see id. at 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346;  Figueroa v. City of New York, 101 A.D.3d 674, 674, 954 N.Y.S.2d 485;  Liounis v. New York City Tr. Auth., 92 A.D.3d 643, 643, 938 N.Y.S.2d 176;  Tapia v. Dattco, Inc., 32 A.D.3d 842, 844, 821 N.Y.S.2d 124).

We agree with the Supreme Court's granting of the defendant's motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint.  Upon accepting the plaintiff's evidence as true and according the plaintiff the benefit of every favorable inference, the court was confronted with the admissions of the plaintiff's medical expert who indicated, during her cross-examination testimony, that the posterior approach to brachioplasty, the procedure used by the defendant, while not the expert's preferred method, is an accepted procedure and is within the standard of care.  This was repeated during recross examination when the plaintiff's expert acknowledged that the posterior brachioplasty is an accepted procedure in the field of plastic surgery.  The plaintiff's expert rendered no testimony establishing the manner in which the defendant's conduct deviated from the accepted standard of care, as her testimony centered around her preferred method for brachioplasty, which simply differed from the defendant's approach.

“A doctor may be liable only if the doctor's treatment decisions do not reflect his or her own best judgment, or fall short of the generally accepted standard of care” (Nestorowich v. Ricotta, 97 N.Y.2d 393, 399, 740 N.Y.S.2d 668, 767 N.E.2d 125).  Here, the plaintiff's medical expert admitted multiple times that the defendant performed an accepted brachioplasty surgery that falls within the standard of care for such procedures.  Such admissions were fatal to the plaintiff's establishment of a prima facie case on the issue of liability for medical malpractice (see Nestorowich v. Ricotta, 97 N.Y.2d at 399, 740 N.Y.S.2d 668, 767 N.E.2d 125;  Davis v. Patel, 287 A.D.2d 479, 731 N.Y.S.2d 204;  Ibguy v. State of New York, 261 A.D.2d 510, 690 N.Y.S.2d 604).

We do not address the plaintiff's remaining contentions, as they involve matter dehors the record (see Schwarz v. Margie, 62 A.D.3d 780, 878 N.Y.S.2d 459;  Mendoza v. Plaza Homes, LLC, 55 A.D.3d 692, 865 N.Y.S.2d 342), or are unpreserved for appellate review (see SCG Architects v. Smith, Buss & Jacobs, LLP, 100 A.D.3d 619, 952 N.Y.S.2d 896).

SCHEINKMAN, P.J., DILLON, LASALLE and BRATHWAITE NELSON, JJ., concur.