Kadanoff v. Whitlow

189 A.D.3d 1569

137 N.Y.S.3d 399

Jacqueline KADANOFF, et al., respondents,

v.Michael B. WHITLOW, etc., appellant, et al., defendants.

2018–07499

Index No. 507798/13

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

Argued—September 11, 2020

December 30, 2020

Martin Clearwater & Bell LLP, New York, N.Y. (Gregory A. Cascino, Rosaleen T. McCrory, and Matthew M. Frank of counsel), for appellant.

Alan Ripka & Associates, LLP (Hasapidis Law Offices, South Salem, N.Y. [Annette G. Hasapidis ], of counsel), for respondents.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice and lack of informed consent, etc., the defendant Michael B. Whitlow appeals from an order of the Supreme Court, Kings County (Gloria M. Dabiri, J.), dated April 23, 2018. The order denied the motion of the defendant Michael B. Whitlow for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed, with costs.

On February 6, 2013, the plaintiff Jacqueline Kadanoff (hereinafter the plaintiff) presented for dermatology care at the defendant FBJ Associates, Inc., complaining of a small bump on the back of her neck. The defendant physician Michael B. Whitlow concluded that the bump was a suspected cyst, and a removal surgery was scheduled. The plaintiff alleges that the bump disappeared before the scheduled surgery and that when she telephoned Whitlow to inform him, he told her to come in for surgery anyway. On February 27, 2013, Whitlow excised what he believed to be a cyst. Subsequent pathology, however, disclosed that he had removed a lymph node. The plaintiff alleges that she began experiencing pain immediately after the procedure and that she suffered nerve pain and damage as a result of the procedure.

The plaintiff, and her husband suing derivatively, commenced this action to recover damages for alleged medical malpractice and lack of informed consent. Whitlow moved for summary judgment dismissing the complaint insofar as asserted against him. In an order dated April 23, 2018, the Supreme Court denied the motion. Whitlow appeals.

The elements of a medical malpractice cause of action are "that the physician deviated or departed from accepted community standards of practice, and that such a 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 ). A defendant moving for summary judgment in a medical malpractice action must demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ), with respect to at least one of those elements (see DiLorenzo v. Zaso, 148 A.D.3d 1111, 1112, 50 N.Y.S.3d 503 ; Cham v. St. Mary's Hosp. of Brooklyn, 72 A.D.3d 1003, 1004, 901 N.Y.S.2d 65 ). When opposing a motion for summary judgment in a medical malpractice action, a plaintiff needs "only to rebut the moving defendant's prima facie showing" ( Stukas v. Streiter, 83 A.D.3d at 23, 918 N.Y.S.2d 176 ).

Here, Whitlow demonstrated his prima facie entitlement to judgment as a matter of law by submitting an expert opinion establishing that he did not depart from accepted community standards of practice in excising the lump on the plaintiff's neck. Therefore, the burden shifted to the plaintiff to raise a triable issue of fact on that issue (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Stukas v. Streiter, 83 A.D.3d at 25–26, 918 N.Y.S.2d 176 ).

In opposition to the motion, the plaintiff raised a triable issue of fact as to whether Whitlow departed from accepted standards of medical practice by, inter alia, performing an unnecessary procedure on the plaintiff (see Moyer v. Roy, 152 A.D.3d 1188, 1190, 57 N.Y.S.3d 867 ; Taylor v. Nyack Hosp., 18 A.D.3d 537, 538, 795 N.Y.S.2d 317 ; Vega v. Mount Sinai–NYU Med. Ctr. & Health Sys., 13 A.D.3d 62, 63, 786 N.Y.S.2d 23 ; Dunlop v. Sivaraman, 272 A.D.2d 570, 570, 709 N.Y.S.2d 419 ; Lipsius v. White, 91 A.D.2d 271, 277–278, 458 N.Y.S.2d 928 ).

In addition, the opinion of Whitlow's expert that the excision procedure would not have caused the injuries claimed by the plaintiff was conclusory and insufficient to demonstrate the absence of triable issues of fact, and, thus, the burden never shifted to the plaintiff on the issue of causation (see Pullman v. Silverman, 28 N.Y.3d 1060, 1063, 43 N.Y.S.3d 793, 66 N.E.3d 663 ; Stiso v. Berlin, 176...