DEUTSCH v. CHAGLASSIAN

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Docket Number

No. 2009-07768.

Attorney(S)

Charles X. Connick, PLLC, Mineola, N.Y. (Barbara Ann Myers of counsel), for appellant. Mark M. Basichas Associates, P.C., New York, N.Y. (Aleksey Feygin of counsel), for respondents.

Judges

William F. Mastro
Thomas A. Dickerson
Sheri S. Roman

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Smart Summary

Factual and Procedural Background

This case arises from a medical malpractice action including claims of lack of informed consent. The defendant, Stephen Weiser, moved for summary judgment seeking dismissal of the complaint against him. The Supreme Court, Queens County, denied his motion in part. Weiser appealed that denial.

Legal Issues Presented

Whether the defendant Stephen Weiser was entitled to summary judgment dismissing the medical malpractice claim against him by demonstrating no deviation from accepted medical standards.
Whether the defendant Stephen Weiser was entitled to summary judgment dismissing the lack of informed consent claim on the basis that he did not perform a qualifying treatment requiring informed consent under Public Health Law § 2805-d.

Arguments of the Parties

Appellant's Arguments

Stephen Weiser argued that he was entitled to summary judgment on the medical malpractice claim by submitting expert affirmation that he did not deviate from accepted standards of medical practice.
He further contended that the lack of informed consent claim should be dismissed because he did not perform a "non-emergency treatment, procedure or surgery" or a "diagnostic procedure which involved invasion or disruption of the integrity of the body" as defined by Public Health Law § 2805-d.

Respondents' Arguments

The plaintiffs opposed summary judgment on the medical malpractice claim by submitting expert affirmation raising triable issues of fact regarding deviation from accepted standards.
They failed to raise a triable issue of fact in opposition to the lack of informed consent claim.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Geffner v North Shore Univ. Hosp., 57 AD3d 839	Elements of proof in medical malpractice: deviation from accepted standards and proximate cause of injury.	Established the standard for medical malpractice claims the court applied.
Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563	Supports the elements of medical malpractice claims.	Reinforced the legal standard for medical malpractice applied by the court.
Rebozo v Wilen, 41 AD3d 457	Defendant's burden on summary judgment to show no deviation or no injury.	Used to define the defendant's burden in summary judgment motions.
Alvarez v Prospect Hosp., 68 NY2d 320	Requirement that plaintiff submit evidentiary facts to rebut defendant's prima facie showing; conclusory allegations insufficient.	Guided evaluation of plaintiff's opposition and sufficiency of evidence.
Feinberg v Feit, 23 AD3d 517	Summary judgment inappropriate where conflicting medical expert opinions exist.	Supported the denial of summary judgment on medical malpractice due to triable issues of fact.
Colao v St. Vincent's Med. Ctr., 65 AD3d 660	Conflicting expert opinions create credibility issues for the jury.	Used to affirm that credibility issues preclude summary judgment.
Schel v Roth, 242 AD2d 697	Application of Public Health Law § 2805-d regarding informed consent requirements.	Supported dismissal of lack of informed consent claim where statutory conditions were not met.

Court's Reasoning and Analysis

The court applied established legal standards governing medical malpractice claims, requiring proof of deviation from accepted medical practice and causation of injury. The defendant, Stephen Weiser, met his initial burden on summary judgment by submitting expert affirmation that he did not deviate from accepted standards. The plaintiffs countered with their own expert affirmation, raising triable issues of fact regarding malpractice, thus precluding summary judgment on that claim.

Regarding the lack of informed consent claim, the court examined the statutory requirements under Public Health Law § 2805-d, which mandates informed consent only for non-emergency treatments or invasive diagnostic procedures. Weiser demonstrated that he did not perform such qualifying procedures. The plaintiffs failed to raise a triable issue of fact in opposition. Consequently, the court concluded that summary judgment dismissing the lack of informed consent claim was appropriate.

The court rejected Weiser's other contentions as without merit.

Holding and Implications

The court modified the Supreme Court's order by granting summary judgment dismissing the lack of informed consent cause of action against Stephen Weiser, while affirming the denial of summary judgment on the medical malpractice claim. The order was affirmed as modified, without costs or disbursements.

The direct effect is that the lack of informed consent claim against Weiser is dismissed, but the medical malpractice claim remains for trial. The decision does not establish new precedent but applies existing legal standards to the facts presented.

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TALI DEUTSCH et al., Respondents, v. MARY CHAGLASSIAN et al., Defendants, and STEPHEN WEISER, Appellant.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Stephen Weiser which was for summary judgment dismissing the cause of action alleging lack of informed consent insofar as asserted against him and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

"The requisite 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" ( Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842; see Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563, 565; Rebozo v Wilen, 41 AD3d 457, 458). "On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" ( Rebozo v Wilen, 41 AD3d at 458). In opposition, a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact ( see Alvarez v Prospect Hosp., 68 NY2d 320; 324 [1986]).

"General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment motion" ( Alvarez v Prospect Hosp., 68 NY2d at 325). "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury" ( Feinberg v Feit, 23 AD3d 517, 519 [citations omitted]; see Colao v St. Vincent's Med. Ctr., 65 AD3d 660, 661).

The defendant Stephen Weiser established his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice insofar as asserted against him by submitting, inter alia, an expert physician's affirmation asserting that he did not deviate from the relevant standards of practice. In opposition, the plaintiffs raised triable issues of fact by submitting an affirmation from their expert ( see Alvarez v Prospect Hosp., 68 NY2d at 324; Feinberg v Feit, 23 AD3d at 519).

Weiser also established his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent insofar as asserted against him, and the plaintiff failed to raise a triable issue of fact in opposition ( see Public Health Law § 2805-d; see also Schel v Roth, 242 AD2d 697). The Supreme Court should have granted that branch of Weiser's motion which was for summary judgment dismissing the cause of action alleging lack of informed consent insofar as asserted against him, since he did not perform a "non-emergency treatment, procedure or surgery" or "a diagnostic procedure which involved invasion or disruption of the integrity of the body" (Public Health Law § 2805-d).

Weiser's remaining contentions are without merit.