Oliver v. N.Y.C. Health & Hosps. Corp.

178 A.D.3d 1057

115 N.Y.S.3d 433

Constance OLIVER, Respondent,

v.NEW YORK CITY HEALTH AND HOSPITALS CORP., Appellant.

2018–05416

Index No. 503935/16

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

Argued - October 8, 2019

December 24, 2019

James E. Johnson, Corporation Counsel, New York, NY (Jeremy W. Shweder and Claibourne Henry of counsel), for appellant.

Law Offices of Marius C. Wesser, P.C., New York, NY, for respondent.

CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Kings County (Marsha L. Steinhardt, J.), dated March 22, 2018. The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff underwent a surgical procedure at Kings County Hospital Center (hereinafter KCH) in January 2014. Eight months later, in August 2014, she was diagnosed at KCH with a left-sided ventral hernia. After a CT scan was performed in December 2014, she was diagnosed more specifically with an incisional hernia—a type of ventral hernia. Seven months later, in July 2015, the plaintiff underwent surgery at KCH to repair the hernia.

The plaintiff subsequently commenced this action against the defendant, New York Health and Hospitals Corp., to recover damages for medical malpractice, alleging, inter alia, that errors committed during the January 2014 surgery increased the risk of an incisional hernia, and that after the surgery the defendant was negligent in failing to timely diagnose and treat the hernia. Following the completion of discovery, the defendant moved for summary judgment dismissing the complaint. In an order dated March 22, 2018, the Supreme Court denied the motion. The defendant appeals.

The 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 (see Lesniak v. Stockholm Obstetrics & Gynecological Servs., P.C., 132 A.D.3d 959, 960, 18 N.Y.S.3d 689 ). 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 (see Noble v. Kingsbrook Jewish Med. Ctr., 168 A.D.3d 1077, 1078, 92 N.Y.S.3d 373 ). The failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). Once this showing has been made, however, the burden then shifts to the plaintiff to produce evidentiary facts in admissible form sufficient to establish the existence of material triable issues of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Stukas v. Streiter, 83 A.D.3d 18, 25–26, 918 N.Y.S.2d 176 ).

Here, although the affirmation of the defendant's expert was sufficient to establish, prima facie, that no error was committed during the January 2014 surgery, it was insufficient to "rebut, with factual proof" ( Pullman v. Silverman, 28 N.Y.3d 1060, 1062, 43 N.Y.S.3d 793, 66 N.E.3d 663 [internal quotation marks omitted] ) the plaintiff's further allegations of failure to timely diagnose and treat her incisional hernia. Among other...