MURRAY v. CENTRAL ISLAND HEALTHCARE (2022)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff appeals from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered September 19, 2019.  The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Maybritt Pellerito (hereinafter the decedent) died from advanced gangrene and septic shock after sustaining a fall while recuperating from knee replacement surgery at the defendant physical rehabilitation center.  The plaintiff, the decedent's daughter, as the administrator of her mother's estate, commenced this action, inter alia, to recover damages for medical malpractice and wrongful death against the defendant.  In her bill of particulars, the plaintiff alleged, inter alia, that the defendant improperly performed its fall risk assessment and therefore incorrectly categorized the decedent as a low risk for falling.  The bill of particulars further asserted that the defendant negligently over-medicated the decedent with oxycodone, which caused the decedent to develop hypotension, leading to gangrene of the bowel and resulting in her death.

In an order entered September 19, 2019, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint, determining that the plaintiff's expert's affirmation was conclusory and insufficient to raise triable issues of fact.

“In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries” (Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176).  In moving for summary judgment, a physician defendant must establish, prima facie, “either that there was no departure or that any departure was not a proximate cause of the plaintiff's injuries” (Lesniak v. Stockholm Obstetrics & Gynecological Servs., P.C., 132 A.D.3d 959, 960, 18 N.Y.S.3d 689).  Once a defendant has made such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing (see Stukas v. Streiter, 83 A.D.3d at 30, 918 N.Y.S.2d 176).

Here, the defendant made a prima facie showing of its entitlement to judgment as a matter of law through, inter alia, the affirmations of its experts, who opined, with a reasonable degree of medical certainty, that the defendant did not depart from the accepted standard of care and that, in any event, any alleged departures were not a proximate cause of the decedent's injuries (see Wagner v. Parker, 172 A.D.3d 954, 955, 100 N.Y.S.3d 280).

In opposition to the defendant's prima facie showing, the plaintiff raised a triable issue of fact as to whether the defendant departed from the standard of care by improperly assessing the decedent as a low risk for falling and, as a result, failed to implement an appropriate plan of care including the use of a tab alarm, raised siderails, and a bed lower to the ground.  However, the plaintiff's expert failed to raise a triable issue of fact as to whether such departure was a proximate cause of the decedent's fall.  The expert's opinion that the decedent's fall could have been prevented or her injuries minimized by use of a tab alarm, raised siderails, and a bed lower to the ground was conclusory and speculative.  An expert opinion submitted in opposition should address specific assertions made by the movant's experts, setting forth an explanation for the reasoning and relying on specifically cited evidence in the record (see Tsitrin v. New York Community Hosp., 154 A.D.3d 994, 996, 62 N.Y.S.3d 506).

Contrary to the plaintiff's contention, the plaintiff's expert's opinion failed to raise a triable issue of fact as to whether the defendant departed from the accepted standard of care in its administration of oxycodone to the decedent.  The plaintiff's expert neither set forth the standard of care for the administration of pain medication to the decedent, nor opined that the defendant departed from the standard of care in its administration of oxycodone.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

BARROS, J.P., RIVERA, CHAMBERS and MILLER, JJ., concur.