Noble v. Kingsbrook Jewish Med. Ctr.

168 A.D.3d 1077

92 N.Y.S.3d 373

Dermot NOBLE, etc., Respondent,

v.KINGSBROOK JEWISH MEDICAL CENTER, Defendant, Eli Bryk, etc., Appellant.

2017–00772

Index No. 501942/12

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

Argued—October 4, 2018

January 30, 2019

Dopf, P.C., New York, N.Y. (Martin B. Adams of counsel), for appellant.

Rosenbaum & Rosenbaum, P.C., New York, N.Y. (Craig B. Novak, Matthew Gammons, and Kevin Johnson of counsel), for respondent.

MARK C. DILLON, J.P., BETSY BARROS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for wrongful death based upon medical malpractice, the defendant Eli Bryk appeals from an order of the Supreme Court, Kings County (Gloria A. Dabiri, J.), dated June 20, 2016. The order, insofar as appealed from, denied the motion of the defendant Eli Bryk for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Eli Bryk for summary judgment dismissing the complaint insofar as asserted against him is granted.

On July 30, 2010, the plaintiff's decedent, a 66–year–old woman who suffered from several health issues, including hypertension and anemia, underwent total right knee replacement surgery. The surgery was performed by the defendant Eli Bryk (hereinafter the defendant) at the defendant Kingsbrook Jewish Medical Center (hereinafter Kingsbrook). The surgery was completed without issue. The defendant prescribed 30 milligrams of Lovenox, twice a day, as a prophylactic anticoagulant to prevent deep vein thrombosis (hereinafter DVT). The decedent remained hospitalized at Kingsbrook and was, at all pertinent times, in stable condition. However, on August 4, 2010, the decedent suffered a pulmonary embolism caused by DVT in her lower extremities and died.

In July 2012, the plaintiff, as administrator of the decedent's estate, commenced this action against the defendant and Kingsbrook alleging, inter alia, that the decedent's medical history placed her at "high risk" for developing DVT, and that the defendant departed from accepted medical practice by failing to prescribe the proper dosage of Lovenox and failing to prescribe "[DVT] prophylaxis." The defendant moved, and Kingsbrook separately moved, for summary judgment dismissing the complaint insofar as asserted against each of them. The plaintiff submitted an expert affirmation from a physician in opposition to the motions. By order dated June 20, 2016, the Supreme Court granted Kingsbrook's motion and denied the defendant's motion. The defendant appeals.

We disagree with the Supreme Court's determination that the defendant failed to establish his prima facie entitlement to judgment as a matter of law. " ‘The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of injury or damage’ " ( Lesniak v. Stockholm Obstetrics & Gynecological Servs., P.C., 132 A.D.3d 959, 960, 18 N.Y.S.3d 689, quoting Geffner v. North Shore Univ. Hosp., 57 A.D.3d 839, 842, 871 N.Y.S.2d 617 ; see Weingarten v. St. Vincent's Hosp. & Med. Ctr., 148 A.D.3d 1211, 1212, 50 N.Y.S.3d 516 ). To prevail on a motion for summary judgment in a medical malpractice action, a 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 at 960, 18 N.Y.S.3d 689 ; see Burger v. Das, 159 A.D.3d 667, 668, 69 N.Y.S.3d 507 ; Spiegel v. Beth Israel Med. Center–Kings Hwy. Div., 149 A.D.3d 1127, 1128, 53 N.Y.S.3d 166 ). If such a showing has been made, "a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact" ( Deutsch v. Chaglassian, 71 A.D.3d 718, 719, 896 N.Y.S.2d 431 ; see Giacinto v. Shapiro, 151 A.D.3d 1029, 1030, 59 N.Y.S.3d 42 ; Kerrins v. South Nassau Communities Hosp., 148 A.D.3d 795, 48 N.Y.S.3d 734 ).

Here, the defendant made a prima facie showing that he did not depart from the accepted standard of care in his treatment of the decedent through the submission of the expert affirmation of Howard Luks, an orthopaedic surgeon, the decedent's medical records, and the defendant's deposition testimony (see Hernandez v. Nwaishienyi, 148 A.D.3d 684, 686, 48 N.Y.S.3d 467 ; Feuer v. Ng, 136 A.D.3d 704, 706–707, 24 N.Y.S.3d 198 ; Lopez v. Gramuglia, 133 A.D.3d 424, 425, 20 N.Y.S.3d 8 ; Matos v. Khan, 119 A.D.3d 909, 910, 991 N.Y.S.2d 83 ). Specifically, Luks opined that the use of Lovenox to prevent the decedent from developing DVT, and the dosage prescribed by the defendant, was appropriate and consistent with the accepted standards of care for an orthopaedic surgeon treating a patient following knee replacement surgery. The record demonstrates that the defendant prescribed a postoperative prophylactic anticoagulant at the recommended dosage to prevent DVT. The record further demonstrates that the decedent exhibited no symptoms of DVT until five days after the surgery, when she suffered a fatal pulmonary embolism. Furthermore, Luks's affirmation addressed the alleged departures set forth in the plaintiff's bill of particulars (see Gullo v. Bellhaven Ctr. for Geriatric & Rehabilitative Care, Inc., 157 A.D.3d 773, 774, 69 N.Y.S.3d 108 ; Henry v. Sunrise...