Leberman ex rel. Miller v. Glick

207 A.D.3d 1203

171 N.Y.S.3d 677

William J. LEBERMAN, Chapter 7 Trustee, ON BEHALF OF Patricia M. MILLER, Plaintiff-Respondent,

v.Scott GLICK, M.D., Oswego Hospital, Defendants-Appellants, et al., Defendants.

495

CA 21-00597

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

Entered: July 8, 2022

CONNORS LLP, BUFFALO (MICHAEL J. ROACH OF COUNSEL), FOR DEFENDANT-APPELLANT SCOTT GLICK, M.D.

MARTIN, GANOTIS, BROWN, MOULD & CURRIE, P.C., DEWITT (GABRIELLE L. BULL OF COUNSEL), FOR DEFENDANT-APPELLANT OSWEGO HOSPITAL.

GILLETTE & IZZO LAW OFFICE PLLC, SYRACUSE (JANET M. IZZO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this medical malpractice action seeking damages for injuries that Patricia M. Miller allegedly sustained as a result of defendants’ negligence in failing to recognize that she was or would soon be suffering from a stroke and to provide appropriate treatment for that condition, Oswego Hospital (hospital) and Scott Glick, M.D. (defendants) each appeal from an order that denied their respective motions for summary judgment dismissing the complaint against them. We affirm.

Miller, an employee of the hospital, was brought to the hospital's emergency department approximately 90 minutes after the start of her evening shift because a coworker observed that Miller was displaying symptoms that were possibly indicative of a stroke. Miller presented at the emergency department with, inter alia, dizziness, weakness, and a headache, all of which had a sudden onset. Glick examined Miller and, inter alia, ordered a CT scan of Miller's brain. Another doctor at the hospital reviewed the CT scan, which he interpreted as normal. Based on his examination of Miller and the results of the CT scan, Glick concluded that Miller did not present with any stroke-like symptoms. Ultimately, Glick diagnosed Miller with a urinary tract infection based on the results of other tests performed at the hospital. Because Miller's other symptoms appeared to have resolved, Glick discharged Miller from the hospital approximately five hours after she presented at the emergency room. A day later, Miller woke up on the floor of her bedroom, unable to get up. She was taken to another hospital, where she was diagnosed as having suffered a moderate-sized acute right middle cerebral artery infarction—i.e., a stroke.

We reject defendants’ contentions that Supreme Court erred in denying their motions. Preliminarily, there is no dispute that defendants met their initial burden on their respective motions by submitting the affidavits of Glick and an expert neurologist, who addressed each of the factual allegations of negligence raised in the bill of particulars (see Groff v. Kaleida Health , 161 A.D.3d 1518, 1520, 76 N.Y.S.3d 714 [4th Dept. 2018] ) and established that defendants did not deviate from the applicable standard of care and that any purported deviation was not a proximate cause of Miller's injuries (see Isensee v. Upstate Orthopedics, LLP , 174 A.D.3d 1520, 1521, 103 N.Y.S.3d 342 [4th Dept. 2019] ; Occhino v. Fan , 151 A.D.3d 1870, 1871, 57 N.Y.S.3d 325 [4th Dept. 2017] ; Bickom v. Bierwagen , 48 A.D.3d 1247, 1247, 852 N.Y.S.2d 542 [4th Dept. 2008] ).

Contrary to defendants’ contentions, however, plaintiff raised triable issues of fact sufficient to defeat the motions by submitting, inter alia, expert affidavits establishing "both that defendants deviated from the applicable standard of care and that such deviation was a proximate cause of [Miller's] injuries" ( Occhino , 151 A.D.3d at 1871, 57 N.Y.S.3d 325 ; see Bickom , 48 A.D.3d at 1247, 852 N.Y.S.2d 542 ; see generally Bubar v. Brodman , 177 A.D.3d 1358, 1359, 111 N.Y.S.3d 483 [4th Dept. 2019] ). At the outset, we reject defendants’ contentions that the opinions of plaintiff's experts were insufficient to raise an issue of fact with respect to defendants’ deviation from the applicable standard of care because they relied on practice guidelines—in this case a stroke scale—to assist in establishing the relevant standard of care. The experts’ reliance on a stroke scale to establish the relevant standard of care was not improper here because the practice guidelines were not offered as the sole evidence of the standard of care in opposition to defendants’ motions (cf. Spensieri v. Lasky , 94 N.Y.2d 231, 238-239, 701 N.Y.S.2d 689, 723 N.E.2d 544 [1999] ; see generally Hinlicky v. Dreyfuss , 6 N.Y.3d 636, 647, 815 N.Y.S.2d 908, 848 N.E.2d 1285 [2006] ; Diaz v. New York Downtown Hosp. , 99 N.Y.2d 542, 544-545, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002] ). It is undisputed that plaintiff's experts had "the requisite skill, training, education, knowledge or experience from which it can be assumed that [the experts’] opinion[s] rendered ... [are] reliable" ( Stradtman v. Cavaretta [Appeal No. 2] , 179 A.D.3d 1468, 1470, 118 N.Y.S.3d 828 [4th Dept. 2020] [internal quotation marks omitted]; see Payne v. Buffalo Gen. Hosp. , 96 A.D.3d 1628, 1629-1630, 947 N.Y.S.2d 282 [4th Dept. 2012] ). Based on that foundation, both experts stated their opinion that using a stroke scale during the neurological examination of a suspected stroke patient was necessary to satisfy the standard of care. Indeed, Glick's affidavit and deposition testimony, which we accept as true insofar as it favors the nonmoving party (see Bunk v. Blue Cross & Blue Shield of Utica-Watertown, Inc. , 244 A.D.2d 862, 862-863, 668 N.Y.S.2d 121 [4th Dept. 1997] ), also supported reliance on a stroke scale as a generally-accepted standard or practice in diagnosing and treating strokes. Consequently, we conclude that it was not inappropriate for plaintiff's experts to rely, at least in part, on a stroke scale to establish the relevant standard of care for diagnosing and treating a patient presenting with stroke-like symptoms in opining that defendants deviated from that standard of care. To the extent defendants argue that plaintiff's experts improperly relied on outdated practice guidelines, we conclude that issue goes to the weight to be given to the experts’ opinions, rather than their admissibility (see generally Revere v. Burke , 200 A.D.3d 1607, 1609, 160 N.Y.S.3d 503 [4th Dept. 2021...