Feng Xie v. N.Y.C. Health & Hosps. Corp.

179 A.D.3d 895

117 N.Y.S.3d 273

FENG XIE, etc., et al., Appellants,

v.NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., Respondents, et al., Defendants.

2016–13370

Index No. 7715/09

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

Submitted—October 1, 2019

January 22, 2020

Morelli Law Firm, P.C., New York, N.Y. (Sara A. Strickland of counsel), for appellants.

James E. Johnson, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and Qian Julie Wang of counsel), for respondent New York City Health and Hospitals Corporation.

Bartlett LLP, Mineola, N.Y. (Robert G. Vizza and Christopher A. Terzian of counsel), for respondents Wenjing Zhou and Dr. Zhou Pediatrics.

MARK C. DILLON, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Queens County (Peter J. O'Donoghue, J.), entered November 18, 2016. The order, insofar as appealed from, granted that branch of the motion of the defendant New York City Health and Hospitals Corporation, and the separate motion of the defendants Wenjing Zhou and Dr. Zhou Pediatrics, which were for summary judgment dismissing the amended complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The plaintiffs commenced this action on behalf of their infant daughter, M.X., against, among others, the defendant New York City Health and Hospitals Corporation, which operates Elmhurst Hospital (hereinafter Elmhurst Hospital), and the defendants Wenjing Zhou and Dr. Zhou Pediatrics (hereinafter together the Zhou defendants), alleging, inter alia, that agents of Elmhurst Hospital and the Zhou defendants were negligent in failing to timely diagnose and treat M.X. for viral encephalitis on or between December 12, 2007, and December 17, 2007. The plaintiffs alleged that, as a result of her illness, M.X. became incapacitated and is dependent on others for all activities of daily life.

Elmhurst Hospital moved, among other things, for summary judgment dismissing the amended complaint insofar as asserted against it. The plaintiffs opposed Elmhurst Hospital's motion and submitted an expert affirmation in support of their position.

The Zhou defendants separately moved for summary judgment dismissing the amended complaint insofar as asserted against them. In response, the plaintiffs served a second amended verified bill of particulars, incorrectly denominated as a supplemental verified bill of particulars, in which they expanded the time period specified in the verified bill of particulars and the first amended verified bill of particulars, so as to allege that the Zhou defendants were negligent in treating M.X. on the additional dates of December 18, 2007, December 19, 2007, and December 20, 2007. The plaintiffs subsequently opposed the Zhou defendants' motion and submitted an expert affirmation in support of their position.

By order entered November 18, 2016, the Supreme Court granted that branch of Elmhurst Hospital's motion and the separate motion of the Zhou defendants which were for summary judgment dismissing the amended complaint insofar as asserted against each of them. The plaintiffs appeal. We affirm the order insofar as appealed from.

Elmhurst Hospital established its prima facie entitlement to judgment as a matter of law through the affirmation of its expert, a pediatrician sub-certified in pediatric emergency medicine, whose opinion was based upon, inter alia, his review of M.X.'s medical records, and the deposition testimony of the plaintiffs and of M.X.'s treating doctors. The affirmation demonstrated, prima facie, that Elmhurst Hospital's doctors treated M.X. in accordance with good and accepted standards of medical practice and, in any event, that any departure was not the proximate cause of M.X.'s injuries (see Gachette v. Leak , 172 A.D.3d 1327, 1329, 101 N.Y.S.3d 432 ; Wright v. Morning Star Ambulette Servs., Inc. , 170 A.D.3d 1249, 1250–1251, 96 N.Y.S.3d 678 ; Bethune v. Monhian , 168 A.D.3d 902, 903, 91 N.Y.S.3d 248 ).

In opposition, the plaintiffs, through the affirmation of a physician certified in emergency medicine, raised a triable issue of fact with respect to whether Elmhurst Hospital deviated from the standard of care. The plaintiffs' expert opined, based on, among other things, certain medical records, that M.X. displayed symptoms which warranted Elmhurst Hospital conducting further tests to rule out viral encephalitis while M.X. was at Elmhurst Hospital on December 16, 2007.

However, the expert affirmation submitted by the plaintiffs failed to raise a triable issue of fact as to whether the alleged departures proximately caused M.X.'s injuries. "[E]xpert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" ( Lowe v. Japal , 170 A.D.3d 701, 702, 95 N.Y.S.3d 363 ; see Smith v. Mollica , 158 A.D.3d 656, 658, 70 N.Y.S.3d 234 ; Sirianni v. Town of Oyster Bay , 156 A.D.3d 739, 741, 66 N.Y.S.3d 524 ). The affirmation of the plaintiffs' expert was speculative and conclusory with respect to the issue of proximate cause, and thus did not raise a triable issue of fact (see Lowe v. Japal , 170 A.D.3d at 702, 95 N.Y.S.3d 363 ; Smith v. Mollica , 158 A.D.3d at 658, 70 N.Y.S.3d 234 ; Sirianni v. Town of Oyster Bay , 156 A.D.3d at 741, 66 N.Y.S.3d 524 ). In addition, it did not adequately controvert the opinion asserted by Elmhurst Hospital's expert, that viral encephalitis is incurable and there is no way to...