ARKIN v. RESNICK

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Docket Number

Nos. 2008-08288, 2009-01353.

Advocates

Bruce G. Clark Associates, P.C., Port Washington, N.Y. (Diane C. Cooper and Peter Gale of counsel), for appellant. Furey Kerley Walsh Matera Cinquemani, P.C., Seaford, N.Y. (Lauren B. Bristol of counsel), for respondents.

Judges

Reinaldo E. Rivera
Robert J. Miller
Thomas A. Dickerson
Sheri S. Roman

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Smart Summary

Factual and Procedural Background

On February 1, 2000, Carol Abel (the decedent), aged 61, was admitted to Winthrop University Hospital following an automobile accident. She had preexisting conditions including gait and speech disorders from a recent stroke. Her facial injuries compromised her airway, and she was placed on a ventilator with a plan to extubate on February 2. At approximately 11:00 P.M. on February 2, the decedent self-extubated but was found to be comfortable and breathing normally, so medical personnel applied an oxygen mask and monitored her oxygen saturation. Around 2:00 A.M. on February 3, she exhibited respiratory distress, was reintubated, and placed back on the ventilator. Initially, she appeared responsive and moving all extremities, but by February 4, she was unable to move her right side and could only follow some commands. Subsequently, she lapsed into a vegetative state and died in 2003.

The decedent's executor (plaintiff) brought a medical malpractice action alleging that the respondents—Dr. Colleen Willet, Keri-Ann Kiernan, R.N., and Winthrop University Hospital—departed from accepted medical standards during the night of February 2 to February 3, 2000, causing brain damage to the decedent. The respondents and other defendants (movants) moved for summary judgment dismissing the complaint as to the respondents. Initially, the Supreme Court denied the motion due to a defective expert affirmation. Upon renewal with a properly sworn affirmation, the court granted summary judgment dismissing the complaint against the respondents. The plaintiff appealed from the judgment and from an order affirming the summary judgment upon reargument.

Legal Issues Presented

Whether the Supreme Court properly exercised its discretion in granting the movants' motion for leave to renew their summary judgment motion.
Whether the movants met their initial burden to show no departure from accepted medical practice or lack of proximate causation of injury.
Whether the plaintiff produced sufficient evidentiary proof raising a triable issue of fact to defeat summary judgment, particularly regarding proximate cause and departure from accepted medical standards.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391	Discretion in granting leave to renew a motion to correct procedural defects.	Supported the court's decision to allow movants to correct the defective affirmation and renew their motion.
Acosta v Rubin, 2 AD3d 657, 658	Standards for granting leave to renew motions.	Reinforced the permissibility of correcting procedural errors on renewal.
DeLeonardis v Brown, 15 AD3d 525, 526	Permitting renewal where prior motion was denied due to procedural defects.	Supported the court’s discretion in granting renewal to submit proper evidence.
Baluchinsky v General Motors Corp., 248 AD2d 574, 575	Principles governing motions for leave to renew.	Used to justify the court’s allowance of renewal to correct affidavit defects.
Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563	Movant’s initial burden to show absence of medical malpractice or proximate cause.	Applied to determine movants met prima facie showing entitling them to summary judgment.
Murray v Hirsch, 58 AD3d 701, 702-703	Requirements for plaintiff’s proof to raise triable issues, especially on proximate cause.	Used to find plaintiff’s expert opinion conclusory and insufficient to defeat summary judgment.
Rebozo v Wilen, 41 AD3d 457, 458	Standards for expert affidavits opposing summary judgment in medical malpractice.	Supported the court’s conclusion that plaintiff’s general allegations were insufficient.
Thompson v Orner, 36 AD3d 791, 792	Necessity of competent expert evidence to establish malpractice and causation.	Applied to reject plaintiff’s conclusory expert opinion on proximate cause.
Williams v Sahay, 12 AD3d 366, 368	Movant’s burden in medical malpractice summary judgment motions.	Supported movants’ prima facie showing of entitlement to judgment as a matter of law.
Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359	Shifting burden to plaintiff to show triable issues after movant’s prima facie showing.	Guided the court’s analysis of plaintiff’s evidentiary burden.
Alvarez v Prospect Hosp., 68 NY2d 320, 324-325	Standards for summary judgment and requirements of evidentiary proof opposing it.	Used to emphasize insufficiency of conclusory allegations by plaintiff.
Behar v Coren, 21 AD3d 1045, 1046	Requirement that expert affidavits specify departure and causation.	Applied to evaluate plaintiff’s expert affidavit as conclusory.
Swezey v Montague Rehab Pain Mgt., P.C., 59 AD3d 431, 433	Necessity for physician’s affidavit to establish departure and causation in malpractice.	Supported court’s rejection of plaintiff’s expert opinion as insufficient.
Vera v Soohoo, 41 AD3d 586, 587	Requirements for expert proof opposing summary judgment in malpractice cases.	Used to confirm plaintiff’s failure to meet evidentiary standard.
Domaradzki v Glen Cove Ob/Gyn Assoc., 242 AD2d 282	Standards for opposing summary judgment with competent expert evidence.	Applied in assessing plaintiff’s expert affidavit.
Zak v Brookhaven Mem. Hosp. Med. Ctr., 54 AD3d 852, 853	Requirement that expert show alleged departure was substantial factor in causing injury.	Used to find plaintiff’s expert failed to link injury to alleged departure.
Lyons v McCauley, 252 AD2d 516, 517	Proof of causation in medical malpractice.	Supported court’s conclusion that plaintiff did not raise triable issue on causation.
Myers v Ferrara, 56 AD3d 78, 85	Standards for expert proof on proximate cause in malpractice cases.	Applied to reject plaintiff’s expert opinion as conclusory.
Anderson v Lamaute, 306 AD2d 232, 233	Requirements for opposing summary judgment in malpractice cases.	Supported court’s dismissal of plaintiff’s claims for lack of triable issues.
DiMitri v Monsouri, 302 AD2d 420, 421	Standards for expert proof sufficient to defeat summary judgment.	Used to affirm court’s grant of summary judgment.

Court's Reasoning and Analysis

The court first addressed the procedural issue of the movants' defective expert affirmation, finding no abuse of discretion in granting leave to renew to correct this defect. The court cited CPLR provisions and case law emphasizing that renewal is appropriate to correct inadvertent procedural mistakes.

Substantively, the court found that the movants met their initial burden by submitting expert opinion and supporting medical records showing no departure from accepted medical practice and no proximate causation of injury. The expert, Dr. Mensch, opined that the respondents acted appropriately and that the decedent's injuries were not caused by their conduct.

Once the movants made this prima facie showing, the burden shifted to the plaintiff to present competent evidence raising a triable issue of fact. The court held that the plaintiff's expert opinion was conclusory and failed to address significant contradictory evidence, including the absence of symptoms of brain damage immediately after reintubation and the presence of a prior injury visible on a CT scan. The plaintiff's expert did not adequately link any departure from accepted practice on the relevant night to the decedent's injuries.

Accordingly, the court concluded that the plaintiff failed to raise a triable issue of fact on proximate cause and departure from accepted medical standards, justifying summary judgment in favor of the respondents.

Holding and Implications

The court affirmed the judgment and order appealed from, thereby dismissing the complaint against defendants Dr. Colleen Willet, Keri-Ann Kiernan, and Winthrop University Hospital.

The direct effect of this decision is the final resolution of the medical malpractice claims against these respondents in favor of the defendants. The opinion does not establish new precedent but applies established summary judgment standards and evidentiary requirements in medical malpractice cases.

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MARIAN ARKIN, Appellant, v. SYBIL RESNICK et al., Defendants, and PIOTR DUMICZ et al., Respondents.

Ordered that the judgment and the order entered December 12, 2008 are affirmed insofar as appealed from, with one bill of costs to the respondents.

On February 1, 2000 61-year-old Carol Abel (hereinafter the decedent) was admitted to Winthrop University Hospital following an automobile accident. At the time of her admission, the decedent suffered from several preexisting medical conditions, including gait and speech disorders from a stroke approximately two months before. Injuries to her face from the accident compromised her airway, and she was connected to a ventilator via endotracheal tube, with a plan to remove her from the ventilator on February 2, 2000. At about 11:00 P.M. on February 2, 2000 the decedent pulled out the endotracheal tube but was found, upon examination, to be comfortable and breathing normally. Medical personnel applied an oxygen mask and continued to monitor the oxygen saturation level in her blood. At about 2:00 A.M. on February 3, 2000 the decedent showed signs of respiratory distress, and she was again intubated and placed on the ventilator. Notations in the medical record thereafter on February 3, 2000 indicated that the decedent was responding to commands and appeared to be moving all her extremities. On February 4, 2000 the decedent could follow only some commands and was unable to move her right side. Gradually thereafter, the decedent lapsed into a vegetative state and died in 2003.

In this action, the decedent's executor (hereinafter the plaintiff) alleges, inter alia, that the respondents Dr. Colleen Willet, Keri-Ann Kiernan, R.N., and their employer Winthrop University Hospital (hereinafter collectively the respondents) departed from good and accepted standards of medical practice in their actions and omissions on the night of February 2, 2000 to February 3, 2000, proximately causing the decedent to sustain brain damage. The respondents and other defendants (hereinafter collectively the movants) moved, among other things, for summary judgment dismissing the complaint insofar as asserted against the respondents. The motion papers included a document by their medical expert Dr. Alan Mensch that was labeled as an "affirmation," but was prefaced with a statement that he had been "duly sworn." However, the document did not have either a jurat or a statement pursuant to CPLR 2106 that Dr. Mensch affirmed the statement to be true under the penalties of perjury. By order dated December 30, 2007, the Supreme Court denied the motion on the ground that the affirmation did not comply with CPLR 2106 or 2309, and thus, the movants failed to proffer evidence in admissible form. In support of their motion, in effect, for leave to renew, the movants submitted a substantively identical affirmation with the proper language required by CPLR 2106. By order dated June 9, 2008, the court, upon renewal, granted the motion for summary judgment dismissing the complaint as to the movants, and on July 22, 2008, entered judgment thereon.

Contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in granting the motion for leave to renew, allowing the movants the opportunity to correct their inadvertent mistake by submitting an identical affirmation in the proper form ( see CPLR 2201, 2221 [e]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391; Acosta v Rubin, 2 AD3d 657, 658; DeLeonardis v Brown, 15 AD3d 525, 526; Baluchinsky v General Motors Corp., 248 AD2d 574, 575). In support of their motion for summary judgment, the movants had the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby ( see Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563; Murray v Hirsch, 58 AD3d 701, 702; Rebozo v Wilen, 41 AD3d 457, 458; Thompson v Orner, 36 AD3d 791; Williams v Sahay, 12 AD3d 366, 368). The Supreme Court properly held, in a portion of the ruling not contested by the plaintiff, that the movants made a prima facie showing that the respondents were entitled to judgment as a matter of law. The expert opinion of Dr. Mensch that the respondents had not departed from good and accepted medical practice and that the decedent's injuries were not proximately caused by the respondents' acts or omissions was supported by the medical records and deposition testimony.

After the respondents made a prima facie showing of entitlement to judgment as a matter of law, the burden shifted to the plaintiff "to show by sufficient evidentiary proof the existence of a triable factual issue" ( Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359; see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Behar v Coren, 21 AD3d 1045, 1046). A physician's affidavit in opposition to a summary judgment motion must attest to the departure from accepted practice and must contain an opinion that the challenged acts or omissions were a competent producing cause of the injury ( see Swezey v Montague Rehab Pain Mgt., P.C., 59 AD3d 431, 433; Vera v Soohoo, 41 AD3d 586, 587; Domaradzki v Glen Cove Ob/Gyn Assoc., 242 AD2d 282). General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat a motion for summary judgment ( see Alvarez v Prospect Hosp., 68 NY2d at 325; Flanagan v Catskill Regional Med. Ctr., 65 AD3d at 565; Rebozo v Wilen, 41 AD3d at 458; Thompson v Orner, 36 AD3d at 792). The plaintiff's expert is required to show that the alleged departure was a substantial factor in producing the injury ( see Zak v Brookhaven Mem. Hosp. Med. Ctr., 54 AD3d 852, 853; Lyons v McCauley, 252 AD2d 516, 517).

The Supreme Court properly determined that the opinion of the plaintiff's unnamed expert with respect to proximate cause was conclusory. The plaintiff's expert failed to address the evidence cited by Dr. Mensch that the decedent did not exhibit symptoms of anoxic brain damage on the day after the reintubation and further ignored evidence in the medical records regarding a previously undetected injury that appeared on a CT scan of the decedent's head taken on February 4, 2000 that was suggestive of either a nonhemorrhagic contusion from the automobile accident or a cerebral artery infarct ( see Zak v Brookhauen Mem. Hosp. Med. Ctr., 54 AD3d at 853). The plaintiff's expert failed to link the decedent's injuries to any departure from accepted practice which occurred on the night of February 2, 2000 to February 3, 2000 in relation to the decedent's episode of respiratory distress, and thus, failed to raise a triable issue of fact on the issue of proximate cause sufficient to defeat the motion ( see Murray v Hirsch, 58 AD3d at 703; Myers v Ferrara, 56 AD3d 78, 85; Anderson v Lamaute, 306 AD2d 232, 233; DiMitri v Monsouri, 302 AD2d 420, 421).

The plaintiff's remaining contentions are without merit.