Rosenthal v. Alexander

180 A.D.3d 826

118 N.Y.S.3d 658

Steven ROSENTHAL, etc., et al., Respondents,

v.Robert J. ALEXANDER, etc., Appellant, et al., Defendants.

2017–03417

Index No. 606531/14

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

Argued—September 24, 2019

February 13, 2020

Heidell, Pittoni, Murphy & Bach LLP, White Plains, N.Y. (Daniel S. Ratner and Daryl Paxson of counsel), for appellant.

Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, N.Y. (Carolyn M. Caccese and Beth S. Gereg of counsel), for respondents.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and wrongful death, the defendant Robert J. Alexander appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), dated March 6, 2017. The order, insofar as appealed from, denied that branch of the motion of the defendants Robert J. Alexander, North Shore University Hospital Plainview, and North Shore University Hospital Manhasset which was for summary judgment dismissing the complaint insofar as asserted against the defendant Robert J. Alexander.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants Robert J. Alexander, North Shore University Hospital Plainview, and North Shore University Hospital Manhasset which was for summary judgment dismissing the cause of action alleging failure to obtain informed consent insofar as asserted against the defendant Robert J. Alexander, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

A defendant moving for summary judgment in a medical malpractice action must demonstrate the absence of any material issues of fact (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 ) with respect to at least one of the elements of a cause of action alleging medical malpractice: (1) whether the physician deviated or departed from accepted community standards of practice, or (2) that such a departure was a proximate cause of the plaintiff's injuries (see Gachette v. Leak, 172 A.D.3d 1327, 1329, 101 N.Y.S.3d 432 ; Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ). Where a defendant physician makes a prima facie showing on both elements, "the burden shifts to the plaintiff to rebut the defendant's showing by raising a triable issue of fact as to both the departure element and the causation element" ( Stukas v. Streiter, 83 A.D.3d at 25, 918 N.Y.S.2d 176 ; see also Gachette v. Leak, 172 A.D.3d at 1329, 101 N.Y.S.3d 432 ).

Here, the defendants Robert J. Alexander, North Shore University Hospital Plainview, and North Shore University Hospital Manhasset made a prima facie showing of their entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against Alexander (hereinafter the defendant) by submitting the affirmation of an expert in internal medicine demonstrating that the defendant did not depart from accepted medical practice and that any alleged departure was not a proximate cause of the claimed injuries or death of the plaintiff's decedent (see Gachette v. Leak, 172 A.D.3d at 1329, 101 N.Y.S.3d 432 ; Breland v. Jamaica Hosp. Med. Ctr., 49 A.D.3d 789, 790, 854 N.Y.S.2d 209 ).

However, in opposing the motion, the plaintiffs raised triable issues of...