Nodar v. Pascaretti

200 A.D.3d 697

158 N.Y.S.3d 211

John NODAR, et al., appellants,

v.Cynthia PASCARETTI, etc., et al., respondents, et al., defendants.

2019–07718

Index No. 59861/15

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

Argued—October 26, 2021

December 1, 2021

Sullivan Papain Block McGrath & Cannavo P.C., New York, NY (Stephen C. Glasser and Christopher J. DelliCarpini of counsel), for appellants.

Pilkington & Leggett, P.C., White Plains, NY (Michael N. Romano of counsel), for respondents.

LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated June 5, 2019. The order granted the motion of the defendants Cynthia Pascaretti, Daniel Hafner, Mid–Hudson Medical Group, and Mount Kisco Medical Group, P.C., for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Cynthia Pascaretti, Daniel Hafner, Mid–Hudson Medical Group, and Mount Kisco Medical Group, P.C., for summary judgment dismissing the complaint insofar as asserted against them is denied.

As is relevant to this appeal, in June 2015, the plaintiff John Nodar (hereinafter Nodar), and his wife suing derivatively, commenced this action against, among others, the defendants Cynthia Pascaretti, Daniel Hafner, Mid–Hudson Medical Group, and Mount Kisco Medical Group, P.C. (hereinafter collectively the defendants), asserting causes of action alleging medical malpractice and loss of services. According to the plaintiffs, Pascaretti, a family nurse practitioner, and Hafner, a medical doctor, treated Nodar as their patient at Mid–Hudson Medical Group (hereinafter Mid–Hudson). The plaintiffs alleged that, during the relevant time period, both Pascaretti and Hafner were employed by Mid–Hudson. The plaintiffs alleged that, in July 2014, Nodar sustained injuries when he attempted suicide by jumping from the roof of his house and that, in effect, the defendants, who had treated Nodar for anxiety and depression since 2009, were negligent for failing to properly conduct a suicide risk assessment while treating him and failing to provide him a proper referral for psychiatric care. The plaintiffs also alleged that the defendants negligently failed to schedule or timely conduct a follow-up visit with Nodar and did not monitor his mental state after changing one of the antidepressant medications they prescribed to him and adding an anti-anxiety medication. The plaintiffs also alleged that the defendants failed to properly prescribe medication to Nodar. According to the plaintiffs, these alleged failures caused Nodar's anxiety and depression to worsen, resulting in the suicide attempt.

Following discovery, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order dated June 5, 2019, the Supreme Court granted the defendants' motion. The plaintiffs appeal.

The Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them. The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted standards of medical practice, and evidence that such deviation was a proximate cause of injury (see Huichun Feng v. Accord Physicians, PLLC, 194 A.D.3d 795, 796, 148 N.Y.S.3d 234 ). "[A] defendant physician seeking summary judgment must make a prima facie showing that there was no departure from good and accepted medical practice or that the plaintiff was not injured thereby" ( Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176 ; see Huichun Feng v. Accord Physicians, PLLC, 194 A.D.3d at 796, 148 N.Y.S.3d 234 ). "In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars" ( Mackauer v. Parikh, 148 A.D.3d 873, 876, 49 N.Y.S.3d 488 ; see Smarkucki v. Kleinman, 171 A.D.3d 1118, 1119, 98 N.Y.S.3d 232 ). However, a defendant's expert affidavit that "merely recount[s] the treatment rendered and opine[s] in a conclusory manner that such treatment did not represent a departure from good and accepted medical practice" is insufficient...