Vichlenski v. Schwartz

201 A.D.3d 773

161 N.Y.S.3d 293

Maryann VICHLENSKI, et al., respondents,

v.Adam SCHWARTZ, etc., et al., defendants,Sanford Glantz, etc., et al., appellants.

2018–09437

Index No. 63022/14

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

Argued—October 7, 2021

January 12, 2022

Law Office of Connick, Myers, McNamee & Fitzgerald, PLLC, Mineola, NY (Glenn P. McNamee of counsel), for appellant Sanford Glantz.

Lewis Johs Avallone Aviles, LLP, Islandia, NY (Robert A. Lifson of counsel), for appellant Good Samaritan Hospital Center.

Helwig, Henderson, Gray & Spinola, LLP, Syosset, NY (Pamela M. Gleit of counsel), for appellants Garri Pasklinsky and Great South Bay Surgical Associates and Vascular Lab, LLP.

Queller, Fisher, Washor, Fuchs & Kool, LLP, New York, NY (Ephrem J. Wertenteil of counsel), for respondents.

ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice, etc., the defendant Sanford Glantz, the defendant Good Samaritan Hospital Medical Center, and the defendants Garri Pasklinsky and Great South Bay Surgical Associates and Vascular Lab, LLP, separately appeal from an order of the Supreme Court, Suffolk County (Sanford Neil Berland, J.), dated July 3, 2018. The order, insofar as appealed from, denied those branches of the separate motions of the defendant Sanford Glantz, the defendant Good Samaritan Hospital Medical Center, and the defendants Garri Pasklinsky and Great South Bay Surgical Associates and Vascular Lab, LLP, which were for summary judgment dismissing the first and third causes of action insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

In May 2012, the plaintiff Maryann Vichlenski (hereinafter the injured plaintiff) presented to the emergency department of the defendant Good Samaritan Hospital Medical Center (hereinafter the hospital) complaining of pain and numbness in her left foot. The injured plaintiff was seen by the defendant Adam Schwartz, a resident, and then by the defendant Sanford Glantz, an emergency medicine doctor employed by the hospital. Since no pulses could be detected in the plaintiff's left foot, she was prescribed medication, and a CT angiogram and a consultation with a vascular surgeon were ordered. Although the injured plaintiff was seen in the emergency department by a vascular surgeon—the defendant Garri Pasklinsky—the CT angiogram was canceled, allegedly by Glantz.

Pasklinsky, upon examining the injured plaintiff, found no evidence of acute limb-threatening ischemia or other acute vascular surgical issues. He cleared the injured plaintiff to be discharged, and directed her to follow up with him the next day. However, when the injured plaintiff's husband called Pasklinsky's office the following day to schedule an appointment, the injured plaintiff allegedly was refused an appointment because she did not have health insurance. The injured plaintiff was later seen by a different vascular surgeon, who found no pulses in her left foot, and diagnosed her with gangrene. In August 2012, after unsuccessful treatment and therapy, the injured plaintiff's left leg was amputated below the knee.

The injured plaintiff, and her husband suing derivatively, commenced this action, among other things, to recover damages for medical malpractice, against, among others, Glantz, the hospital, and Pasklinsky and his employer, Great South Bay Surgical Associates and Vascular Lab, LLP (hereinafter together the Pasklinsky defendants). Glantz, the hospital, and the Pasklinsky defendants separately moved, inter alia, for summary judgment dismissing the first and third causes of action, alleging, respectively, medical malpractice and a derivative claim, insofar as asserted against each of them. By order dated July 3, 2018, the Supreme Court, among other things, denied those branches of the separate motions. Glantz, the hospital, and the Pasklinsky defendants separately appeal.

A defendant seeking summary judgment in a medical malpractice action bears the initial burden of establishing, prima facie, either that there was no departure from the applicable standard of care, or that any alleged departure did not proximately cause the plaintiff's injuries (see Michel v. Long Is. Jewish Med. Ctr., 125...