Mehtvin v. Ravi

180 A.D.3d 661

118 N.Y.S.3d 646

Dustan MEHTVIN, etc., et al., Appellants,

v.Bala K. RAVI, etc., et al., Respondents, et al., Defendant.

2017–04673

Index No. 5420/14

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

Argued—September 17, 2019

February 5, 2020

Krentsel & Guzman, LLP, New York, N.Y. (Jeffrey A. Guzman, Julie T. Mark, and Marcia Raicus of counsel), for appellants.

Garson & Jakub, LLP, New York, N.Y. (Susan M. McNamara and Michael Morris of counsel), for respondents Bala K. Ravi and Derek Liang.

Arshack, Hajek & Lehrman, PLLC, New York, N.Y. (Lynn Hajek of counsel), for respondent Wyckoff Heights Medical Center.

MARK C. DILLON, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, BETSY BARROS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Marsha L. Steinhardt, J.), dated March 13, 2017. The order, insofar as appealed from, granted those branches of the motion of the defendants Bala K. Ravi and Derek Liang which were for summary judgment dismissing all of the causes of action insofar as asserted against them other than the cause of action alleging lack of informed consent, which was previously dismissed, and granted that branch of the separate motion of the defendant Wyckoff Heights Medical Center which was for summary judgment dismissing so much of the complaint as sought recovery against it based upon the theory of vicarious liability.

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 motion of the defendants Bala K. Ravi and Derek Liang which were for summary judgment dismissing all of the causes of action insofar as asserted against them other than the cause of action alleging lack of informed consent, and that branch of the separate motion of the defendant Wyckoff Heights Medical Center which was for summary judgment dismissing so much of the complaint as sought recovery against it based upon the theory of vicarious liability, are denied.

In the early morning of July 9, 2012, Shannen Lyles (hereinafter the decedent), who was pregnant, was admitted to the defendant Wyckoff Heights Medical Center (hereinafter Wyckoff) after her water broke. When vaginal delivery did not progress, a cesarian section was performed on the morning of July 10, 2012. In the early morning of July 11, 2012, the decedent collapsed and died after getting out of bed to go to the bathroom. The autopsy report stated that the cause of death was "pulmonary thromboembolism due to deep vein thrombosis complicating relative immobility following cesarean section."

The administrator of the decedent's estate and the decedent's infant child (hereinafter together the plaintiffs) commenced this action against Wyckoff and two physicians, the defendants Bala K. Ravi and Derek Liang (hereinafter together the physicians), as well as another defendant, to recover damages, inter alia, for medical malpractice, wrongful death, and lack of informed consent. The physicians moved for summary judgment dismissing the complaint insofar as asserted against them, and Wyckoff separately moved for summary judgment dismissing the complaint insofar as asserted against it. After oral argument, the Supreme Court directed dismissal of the cause of action alleging lack of informed consent insofar as asserted against the physicians and dismissal of the complaint insofar as asserted against Wyckoff, except for so much of the complaint as sought recovery against it based upon the theory of vicarious liability. The plaintiffs do not challenge the court's determination directing these dismissals. In an order dated March 13, 2017, the court granted the remaining branches of both motions. The plaintiffs appeal.

"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 Hutchinson v. New York City Health & Hosps. Corp., 172 A.D.3d 1037, 1039, 101 N.Y.S.3d 96 ). Thus, in moving for summary judgment, a physician defendant must establish, prima facie, "either that there was no departure or that any departure was not a proximate cause of the plaintiff's injuries" ( Lesniak v. Stockholm Obstetrics & Gynecological Servs., P.C., 132 A.D.3d 959, 960, 18 N.Y.S.3d 689 ; see Stukas v. Streiter, 83 A.D.3d at 23, 918 N.Y.S.2d 176 ). Once a defendant has made such a showing, the burden shifts to the plaintiff to "submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician" ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).

Here, it is undisputed that the physicians made a prima facie showing of entitlement to judgment as a matter of law through the submission of the decedent's medical...