Starre v. Dean

215 N.Y.S.3d 490

229 A.D.3d 728

Walinda Odrick STARRE, etc., appellant,

v.Deborah DEAN, etc., et al., respondents, et al., defendant.

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

Argued—December 1, 2023

July 24, 2024

Queller, Fisher, Washor, Fuchs & Kool and The Law Office of William A. Gallina, LLP, New York, NY (Matthew J. Maiorana of counsel), for appellant.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, NY (Elliott J. Zucker and Mallory Turk of counsel), for respondents Deborah Dean, Valentina Podd, and Mt. Sinai Brooklyn.

Helwig, Henderson, Gray & Spinola, LLP, Syosset, NY (Pamela Gleit and Deborah Gray of counsel), for respondent Jack Braha.

VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, HELEN VOUTSINAS, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Marsha L. Steinhardt, J.), dated October 21, 2019. The order, insofar as appealed from, granted those branches of the motion of the defendants Deborah Dean, Valentina Podd, Elliott Goodman, and Mt. Sinai Brooklyn which were for summary judgment dismissing the causes of action alleging medical malpractice and wrongful death insofar as asserted against the defendants Deborah Dean, Valentina Podd, and Mt. Sinai Brooklyn, and granted those branches of the separate motion of the defendant Jack Braha which were for summary judgment dismissing the causes of action alleging medical malpractice and wrongful death insofar as asserted against him.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the motion of the defendants Deborah Dean, Valentina Podd, Elliott Goodman, and Mt. Sinai Brooklyn which were for summary judgment dismissing the causes of action alleging medical malpractice and wrongful death insofar as asserted against the defendants Deborah Dean, Valentina Podd, and Mt. Sinai Brooklyn, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff, payable by the defendants Deborah Dean, Valentina Podd, and Mt. Sinai Brooklyn, and one bill of costs to the defendant Jack Braha, payable by the plaintiff.

On January 30, 2015, at approximately 10:45 a.m., the plaintiff’s decedent (hereinafter the decedent), then 40 years old, arrived by ambulance at the emergency department of the defendant Mt. Sinai Brooklyn (hereinafter the hospital). He was complaining of sharp, severe abdominal pain, with nausea and vomiting, which had started two days earlier. The decedent died at the hospital approximately 12 hours later after sustaining multiple cardiac arrests, the first of which occurred at approximately 7:00 p.m.

In July 2015, the plaintiff, individually and as administrator of the decedent’s estate, commenced this action, inter alia, to recover damages for medical malpractice and wrongful death. The plaintiff alleged, among other things, that the defendants departed from accepted standards of medical practice when treating the decedent at the hospital.

The hospital and the defendants Deborah Dean and Valentina Podd (hereinafter collectively the hospital defendants), together with the defendant Elliott Goodman, moved, inter alia, for summary judgment dismissing the causes of action alleging medical malpractice and wrongful death insofar as asserted against the hospital defendants. The defendant Jack Braha separately moved, among other things, for summary judgment dismissing those causes of action insofar as asserted against him. In an order dated October 21, 2019, the Supreme Court, inter alia, granted those branches of the separate motions. The plaintiff appeals.

[1, 2] "On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant[s] bear[] the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiffs injuries" (Sheppard v. Brookhaven Mem. Hosp. Med. Ctr., 171 A.D.3d 1234, 1235, 98 N.Y.S.3d 629; see Walker v. Jamaica Hosp. Med. Ctr., 208 A.D.3d 714, 716, 173 N.Y.S.3d 630). "Once the defendant[s] meet[] [their] prima facie burden, the plaintiff must demonstrate in opposition the existence of a triable issue of fact as to the elements with respect to which the defendant[s] ha[ve] met [their] initial burden" (Roy v. Lent, 219 A.D.3d 525, 525, 193 N.Y.S.3d 283 [internal quotation marks omitted]). Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions, as such conflicting opinions raise credibility questions that must be resolved by a factfinder (see Hall v. Bolognese, 210 A.D.3d 958, 963, 178 N.Y.S.3d 564).

[3] Here, the hospital defendants and Braha established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging medical malpractice and wrongful death insofar as asserted against each of them by submitting, inter alia, the affirmation of their experts. Based upon their review of the decedent’s hospital records, the pleadings, and transcripts of the witnesses’ deposition testimony, these experts opined, to a reasonable degree of medical certainty, that the hospital defendants and Braha did not depart from accepted standards of medical practice in their treatment of the decedent, and that the treatment rendered to the decedent did not proximately cause his injuries (see Balgobind v. Long Is. Jewish Med. Ctr., 218 A.D.3d 428, 429, 193 N.Y.S.3d 93; McHale v. Sweet, 217 A.D.3d 666, 668, 190 N.Y.S.3d 438; Zabary v. North Shore Hosp. in Plainview, 190 A.D.3d 790, 793, 139 N.Y.S.3d 344).

[4] In opposition to the hospital defendants’ prima facie showing, however, the plaintiff raised triable issues of fact as to whether the hospital defendants departed from accepted medical practices in their treatment of the decedent, and whether such departures were a proximate cause of the...