Alao v. Richmond Univ. Med. Ctr.

213 A.D.3d 722

183 N.Y.S.3d 144

Pamela ALAO, etc., respondent,

v.RICHMOND UNIVERSITY MEDICAL CENTER, et al., defendants,Akella Chendrasekhar, etc., et al., appellants.

2019–14391, 2019–14670

Index No. 150450/14

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

Argued—November 17, 2022

February 8, 2023

Vaslas Lepowsky Hauss & Danke LLP, Staten Island, NY (Paul J. Danke, Jr., of counsel), for appellant Akella Chendrasekhar.

Gerspach Sikoscow LLP, New York, NY (Thomas J. Gerspach, Kristen J. Halford, and Ryan Gerspach of counsel), for appellant Edwin M. Chang.

Koss & Schonfeld, LLP, New York, NY (Jacob J. Schindelheim and Shira Goldman Moyal of counsel), for respondent.

COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and wrongful death, (1) the defendant Edwin M. Chang appeals from an order of the Supreme Court, Richmond County (Judith N. McMahon, J.), dated December 5, 2019, and (2) the defendant Akella Chendrasekhar appeals from an order of the same court dated December 6, 2019. The order dated December 5, 2019, insofar as appealed from, denied those branches of the motion of the defendant Edwin M. Chang which were for summary judgment dismissing the causes of action to recover damages for medical malpractice and wrongful death insofar as asserted against him. The order dated December 6, 2019, insofar as appealed from, denied those branches of the motion of the defendants Akella Chendrasekhar and Michael Mantello which were for summary judgment dismissing the causes of action to recover damages for medical malpractice and wrongful death insofar as asserted against the defendant Akella Chendrasekhar.

ORDERED that the order dated December 5, 2019, is affirmed insofar as appealed from; and it is further, ORDERED that the order dated December 6, 2019, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On April 30, 2013, the plaintiff's decedent presented to the emergency room at the defendant Richmond University Medical Center (hereinafter RUMC) with head injuries after having been assaulted. On May 6, 2013, the decedent died at RUMC. In 2014, the plaintiff commenced this action, inter alia, to recover damages for medical malpractice and wrongful death against, among others, the defendants Akella Chendrasekhar and Edwin M. Chang, physicians who treated the decedent at RUMC. The plaintiff alleged, among other things, that the defendants failed to timely treat the decedent's coagulopathy, which led to his death. Chendrasekhar and the defendant Michael Mantello moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against Chendrasekhar. Chang separately moved for summary judgment dismissing the amended complaint insofar as asserted against him. In an order dated December 5, 2019, the Supreme Court, among other things, denied those branches of Chang's motion which were for summary judgment dismissing the causes of action to recover damages for medical malpractice and wrongful death insofar as asserted against him. In an order dated December 6, 2019, the court, inter alia, denied those branches of the motion of Chendrasekhar and Mantello which were for summary judgment dismissing the causes of action to recover damages for medical malpractice and wrongful death insofar as asserted against Chendrasekhar. Chang and Chendrasekhar separately appeal.

"The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" ( Hayden v. Gordon, 91 A.D.3d 819, 820, 937 N.Y.S.2d 299 [internal quotation marks omitted]). "On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff's injuries" ( Stewart v. North Shore Univ. Hosp. at Syosset, 204 A.D.3d 858, 859–860, 166 N.Y.S.3d 676 ). Once a defendant makes a prima facie showing, "the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact" as to the elements on which the defendant met the prima facie burden ( Donnelly v. Parikh, 150 A.D.3d 820, 822, 55 N.Y.S.3d 274 [internal quotation marks omitted]).

Here, Chendrasekhar established his prima facie entitlement to judgment as a matter of law by submitting an expert affirmation from Carina G. Biggs, a critical care surgeon, who opined that Chendrasekhar at all times rendered appropriate care, and that the decedent's death was caused by the "natural and inevitable progression" of traumatic brain injury (see Pirri–Logan v. Pearl, 192 A.D.3d 1149, 1151, 145 N.Y.S.3d 545 ). However, in opposition, the plaintiff's submission of an expert affirmation from Ronald A. Paynter raised triable issues of fact as to whether the care rendered by Chendrasekhar departed from the accepted standard of medical care and whether the alleged departures proximately caused the decedent's death (see Pezulich v. Grecco, 206 A.D.3d 827, 169 N.Y.S.3d 680 ; Murray v. Central Is. Healthcare, 205 A.D.3d 1036, 1037, 169 N.Y.S.3d 118 ; Buch v. Tenner, 204 A.D.3d 635, 637, 166 N.Y.S.3d 243 ). "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions," and "[s]uch credibility issues can only be resolved by a jury" ( Feinberg v. Feit, 23 A.D.3d 517, 519, 806 N.Y.S.2d 661 ; see Pezulich v. Grecco, 206 A.D.3d at 829, 169 N.Y.S.3d 680 ).

Contrary to Chendrasekhar's contention, Paynter, a board-certified emergency medicine physician, was qualified to opine on the treatment provided by Chendrasekhar, a critical care specialist. A medical expert need not be a...