M.C., et al., Appellants, v. HUNTINGTON HOSPITAL

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

M.C., et al., Appellants, v. HUNTINGTON HOSPITAL, et al., Respondents, et al., Defendants.

2016–13016

Decided: August 21, 2019

MARK C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ. Cellino & Barnes, P.C., Garden City, N.Y. (Ellen B. Sturm and John E. Lavelle of counsel), for appellants. Bower Law P.C., Uniondale, N.Y. (Gianna Crespo of counsel), for respondents Huntington Hospital, Huntington Hospital Association, North Shore Long Island Jewish Huntington Hospital, Robert Bramante, and Tse Lau. Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (David Bloom of counsel), for respondent Fred DiBlasio.

DECISION & ORDER

In an action to recover damages for medical malpractice and lack of informed consent, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Arthur G. Pitts, J.), dated October 20, 2016.  The order, insofar as appealed from, granted those branches of the separate motions of the defendant Fred DiBlasio and the defendants Huntington Hospital, Huntington Hospital Association, North Shore Long Island Jewish Huntington Hospital, Robert Bramante, and Tse Lau which were for summary judgment dismissing so much of the complaint as alleged medical malpractice insofar as asserted against each of them.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and those branches of the separate motions of the defendant Fred DiBlasio and the defendants Huntington Hospital, Huntington Hospital Association, North Shore Long Island Jewish Huntington Hospital, Robert Bramante, and Tse Lau which were for summary judgment dismissing so much of the complaint as alleged medical malpractice insofar as asserted against each of them are denied.

The infant plaintiff, by his mother, and his mother, individually, commenced this action, inter alia, to recover damages for medical malpractice and lack of informed consent, alleging that the defendants' failure to timely diagnose and treat the infant plaintiff's condition of testicular torsion caused the loss of his right testicle.  The defendant Fred DiBlasio, the urologist who treated the infant plaintiff in the emergency room at the defendant Huntington Hospital on March 20, 2011, moved for summary judgment dismissing the complaint insofar as asserted against him.  The defendants Huntington Hospital, Huntington Hospital Association, North Shore Long Island Jewish Huntington Hospital, Robert Bramante, and Tse Lau (hereinafter collectively the hospital defendants) separately moved for summary judgment dismissing the complaint insofar as asserted against them.  In opposition, the plaintiffs submitted, inter alia, an affidavit of a physician licensed to practice medicine in the state of Connecticut who was board certified in pediatric emergency medicine.  The Supreme Court granted both motions for summary judgment, reasoning that, in opposition to the defendants' prima facie showing of their entitlement to judgment as a matter of law, the expert affidavit submitted by the plaintiffs failed to raise a triable issue of fact with regard to the medical malpractice cause of action, because the expert was not qualified to render an opinion on urological care and did not establish that the community standards of care in Connecticut were the same as in New York. On appeal, the plaintiffs contend that the court should have denied those branches of the separate motions which were for summary judgment dismissing so much of the complaint as alleged medical malpractice insofar as asserted against DiBlasio and the hospital defendants.

“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; see Salgado v. North Shore Univ. Hosp., 167 A.D.3d 1057, 89 N.Y.S.3d 698; DiLorenzo v. Zaso, 148 A.D.3d 1111, 1112, 50 N.Y.S.3d 503; Feuer v. Ng, 136 A.D.3d 704, 706, 24 N.Y.S.3d 198).  A defendant seeking summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries (see Hernandez v. Nwaishienyi, 148 A.D.3d 684, 686, 48 N.Y.S.3d 467; Feuer v. Ng, 136 A.D.3d at 706, 24 N.Y.S.3d 198; Stukas v. Streiter, 83 A.D.3d at 24, 918 N.Y.S.2d 176).  Where the defendant has satisfied that burden, a plaintiff must “submit evidentiary facts or materials to rebut the defendant's prima facie showing” (Stukas v. Streiter, 83 A.D.3d at 30, 918 N.Y.S.2d 176).  “ ‘Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause’ ” (Novick v. South Nassau Communities Hosp., 136 A.D.3d 999, 1000, 26 N.Y.S.3d 182, quoting Lyons v. McCauley, 252 A.D.2d 516, 517, 675 N.Y.S.2d 375; see Whitnum v. Plastic & Reconstructive Surgery, P.C., 142 A.D.3d 495, 497, 36 N.Y.S.3d 470).

Here, DiBlasio and the hospital defendants established their prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged medical malpractice insofar as asserted against each of them.  DiBlasio and the hospital defendants each submitted a detailed affirmation of a medical expert who opined that they did not depart from the applicable standard of care and that, even if the infant plaintiff's testicular torsion had been diagnosed and treated earlier, the outcome would have been the same (see DiLorenzo v. Zaso, 148 A.D.3d at 1113, 50 N.Y.S.3d 503; Sukhraj v. New York City Health & Hosps. Corp., 106 A.D.3d 809, 965 N.Y.S.2d 532).

We disagree with the Supreme Court's determination that the affidavit of the plaintiffs' expert, submitted in opposition to the motions for summary judgment, did not constitute competent evidence.  “ ‘While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field ․ the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable’ ” (Behar v. Coren, 21 A.D.3d 1045, 1046–1047, 803 N.Y.S.2d 629, quoting Postlethwaite v. United Health Servs. Hosps., 5 A.D.3d 892, 895, 773 N.Y.S.2d 480).  “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Behar v. Coren, 21 A.D.3d at 1047, 803 N.Y.S.2d 629; see Galluccio v. Grossman, 161 A.D.3d 1049, 1052, 78 N.Y.S.3d 196).  The plaintiffs' expert, who was board certified in pediatric emergency medicine, was qualified to opine as to whether the delays in diagnosing and treating the infant plaintiff's testicular torsion, an emergent condition, deviated from the accepted standard of care and whether the deviations were a proximate cause of the loss of the infant plaintiff's testicle (see Simpson v. Edghill, 169 A.D.3d 737, 738–739, 93 N.Y.S.3d 399).

The fact that the plaintiffs' expert is not a urologist or surgeon is not material, as the plaintiffs are not alleging that DiBlasio improperly performed the surgery to treat the testicular torsion.  Rather, they allege that the defendants improperly delayed the diagnosis and treatment of the infant plaintiff's testicular torsion in the emergency room, causing a delay in the surgery and the eventual loss of the testicle.  The plaintiffs' expert laid the requisite foundation for his asserted familiarity with emergency medicine and the treatment of young adolescent males for various conditions, including testicular torsion.  As a pediatric emergency physician, he is qualified to render an opinion in this case regarding the defendants' actions in the emergency room.

While the plaintiff's expert was licensed to practice in Connecticut, rather than in New York State, an expert need not be from the exact same locality as where the occurrence took place.  It is sufficient if the expert attests to familiarity with either the standard of care in the locality or to a minimum standard applicable locally, statewide, or nationally (see McCullough v. University of Rochester Strong Mem. Hosp., 17 A.D.3d 1063, 794 N.Y.S.2d 236; Hoagland v. Kamp, 155 A.D.2d 148, 150, 552 N.Y.S.2d 978; Payant v. Imobersteg, 256 A.D.2d 702, 705, 681 N.Y.S.2d 135).  The affirmation of the plaintiff's expert sufficiently identified, and assessed the defendants' conduct against, a relevant standard of care.

We find that the affidavit of the plaintiffs' expert was sufficient to raise a triable issue of fact in opposition to the prima facie showing by DiBlasio and the hospital defendants of their entitlement to judgment as a matter of law dismissing so much of the complaint as alleged medical malpractice insofar as asserted against each of them.  The plaintiffs' expert opined that the hospital defendants deviated from accepted standards of medical care on March 19, 2011, in failing, among other things, to perform a genital or urinary examination, to call for a urology or surgery consult, to order a testicular ultrasound, and to order additional studies after appendicitis was ruled out as the source of the infant plaintiff's lower right abdominal pain.  He also opined that the hospital defendants further deviated from accepted standards of medical care on March 20, 2011, in failing, among other things, to call for a STAT sonogram and failing to attempt a manual detorsion of the testicle.  As to DiBlasio, the plaintiffs' expert opined that DiBlasio deviated from accepted standards of medical care in, among other things, causing an additional delay of the surgery on March 20, 2011, by failing to respond to the emergency room until 3:30 p.m., and by failing to perform a manual detorsion of the testicle.  As to causation, the plaintiffs' expert opined that the defendants' delays in diagnosing and treating the infant plaintiff's testicular torsion in the emergency room ultimately caused the loss of his right testicle.

Since “summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” (Feinberg v. Feit, 23 A.D.3d 517, 519, 806 N.Y.S.2d 661; see Simpson v. Edghill, 169 A.D.3d 737, 93 N.Y.S.3d 399), the Supreme Court should have denied those branches of the separate motions of DiBlasio and the hospital defendants which were for summary judgment dismissing so much of the complaint as alleged medical malpractice insofar as asserted against each of them.

DILLON, J.P., MILLER, HINDS–RADIX and CONNOLLY, JJ., concur.