Ojeda v. Barabe

202 A.D.3d 808

158 N.Y.S.3d 870 (Mem)

Martha Gutierrez OJEDA, etc., et al., appellants, et al., plaintiffs,

v.David N. BARABE, etc., et al., respondents, et al., defendants.

2019–07777

Index No. 501515/13

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

Argued—December 6, 2021

February 9, 2022

Hasapidis Law Offices, South Salem, NY (Annette G. Hasapidis of counsel), for appellants.

Dopf, P.C., New York, NY (Martin B. Adams of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., SYLVIA O. HINDS–RADIX, SHERI S. ROMAN, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs Martha Gutierrez Ojeda and Efrain Delgado Castro appeal from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated May 13, 2019. The order, insofar as appealed from, granted those branches of the motion of the defendants David N. Barabe, Shakeel A. Usmani, and Lutheran Medical Center which were for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against the defendant David N. Barabe and so much of the complaint as alleged that Lutheran Medical Center was vicariously liable for the alleged medical malpractice of the defendant David N. Barabe.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendants David N. Barabe, Shakeel A. Usmani, and Lutheran Medical Center which were for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against the defendant David N. Barabe and so much of the complaint as alleged that Lutheran Medical Center was vicariously liable for the alleged medical malpractice of the defendant David N. Barabe are denied.

The decedent, who was 36 years old, arrived at the emergency department of the defendant Lutheran Medical Center (hereinafter Lutheran) at 1:12 a.m. on July 5, 2012, complaining of a migraine headache lasting for one day. She was examined by the defendant David N. Barabe and discharged later that morning with a diagnosis of migraine headache. After follow-up visits to her primary care provider and another visit to Lutheran's emergency department with complaints of a constant headache, the decedent died on July 28, 2012, of a subarachnoid hemorrhage (bleeding in the space surrounding the brain).

In March 2013, this action was commenced against, among others, Lutheran, Barabe, and Shakeel A. Usmani, a physician who evaluated the decedent during her second visit to the emergency department (hereinafter collectively the Lutheran defendants), alleging, inter alia, that Barabe departed from the accepted standard of care in failing to obtain a proper medical history and failing to order necessary diagnostic tests that would have revealed the decedent's condition, and that Lutheran was vicariously liable for Barabe's medical malpractice. The Lutheran defendants moved, among other things, for summary judgment dismissing the complaint insofar as asserted against them. In an order dated May 13, 2019, the Supreme Court, inter alia, granted those branches of the Lutheran defendants’ motion which were for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against Barabe and so much of the complaint as alleged that Lutheran was vicariously liable for Barabe's alleged medical malpractice. This appeal ensued.

"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 ). "A defendant seeking summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries" ( Agostini v. Varughese, 190 A.D.3d 799, 801, 140 N.Y.S.3d 250 [internal quotation marks omitted]; see Wodzenski v. Eastern Long Is. Hosp., 170 A.D.3d 925, 927, 96 N.Y.S.3d 80 ). "Conclusory statements set forth in an affirmation of a medical expert which...