McCARTHY v. [And a Third-Party Action].

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Supreme Court, Appellate Division, First Department, New York.

Monica McCARTHY, etc., et al., Plaintiffs-Appellants, v. ST. JOSEPH'S MEDICAL CENTER, et al., Defendants, Joseph Michael Gergyes, M.D., Defendant-Respondent. [And a Third-Party Action].

Decided: March 22, 2005

BUCKLEY, P.J., MARLOW, ELLERIN, GONZALEZ, SWEENY, JJ. Annette G. Hasapidis, South Salem, for appellants. Mischel, Neuman & Horn, P.C., New York (Scott T. Horn of counsel), for respondent.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered November 18, 2003, which, in an action for personal injuries and wrongful death based on medical malpractice, insofar as appealed from as limited by the briefs, granted defendant-respondent's motion for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.

Assuming in plaintiff's favor that an issue of fact exists as to whether defendant admitted the decedent to the hospital (cf. Gier v. CGF Health Sys., 307 A.D.2d 729, 762 N.Y.S.2d 472 [2003] ), we would affirm on the ground that no issue of fact exists as to whether the decedent's injuries or death were caused by defendant's alleged 12-hour delay in evaluating him.   Plaintiff's expert's opinion in this regard is not supported “with scientific data or other medical facts” (Carrera v. Mount Sinai Hosp., 294 A.D.2d 154, 741 N.Y.S.2d 534 [2002] ), and otherwise fails to adequately address defendant's prima facie showing that the decedent's post-operative impairments and ultimate death were caused by chronic liver disease (see Stewart v. Presbyterian Hosp., 12 A.D.3d 201, 784 N.Y.S.2d 521 [2004];  Candia v. Estepan, 289 A.D.2d 38, 40, 734 N.Y.S.2d 37 [2001] ).   Nor does defendant's admission that disc compression may require “emergent evaluation by a surgeon since an operation may need to be emergently performed to prevent neurologic loss” tend to show that the decedent's condition, cauda equine syndrome, will result in the irreversible impairments that the decedent experienced, and ultimately death, if not surgically treated within 12 hours.

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