Ruiz v. OpshaRuiz v. Opsha
Krentsel & Guzman (Marсia Raicus and Michael H. Zhu, Esq., P.C., New York, NY, of counsel), for appellant.
Vaslas Lepowsky Hauss & Danke LLP, Staten Island, NY (Karen Hauss of counsel), for respondent Oleg Opsha.
Helwig, Henderson, Gray & Spinola, LLP, Syosset, NY (Pamelа M. Gleit of counsel), for respondent Rajashree Patil.
Silverson, Pareres & Lombardi LLP, New York, NY (Rachel H. Poritz of counsel), for respondents Lance U. Jung and Staten Island Physician‘s Practice.
DECISION & ORDER
In an аction, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Richmond County (Kim Dollard, J.), dated April 7, 2017. The order, insofar as appealed from, granted those branches of the separate motions of the defendant Rajashree Patil, the defendants Lance U. Jung and Staten Island Physician‘s Practice, and the defendant Oleg Opsha which were for summary judgment dismissing the causes of action to recover damages for medical malрractice insofar as asserted against each of them.
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by thе respondents appearing separately and filing separate briefs, and those branches of the separate motions of the defendant Rajashree Patil, the defendants Lance U. Jung and Staten Island Physician‘s Practice, and the defendant Oleg Opsha which were for summary judgment dismissing the causes of action to recover damages fоr medical malpractice insofar as asserted against each of them are denied.
The plaintiff commenced the instant action, inter alia, to recover damages for medical malpractice, alleging that the defendants departed from accepted medical practice by failing to determine that she hаd previously undergone surgery to remove her gallbladder, and that these departures resulted in her undergoing unnecessary gallbladder removal surgery. The defendant Rajashree Patil, the defendants Lance U. Jung and Staten Island Physician‘s Practice (hereinafter SIPP), and the defendant Oleg Opsha separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. In an order dated April 7, 2017, the Supreme Court granted the motions. The plaintiff appeals from so much of the order as granted thosе branches of the motions which were for summary judgment dismissing the causes of action to recover damages for medical malpractice insofar as asserted against Patil, Jung, SIPP, and Opsha.
Here, Patil, an internist who treated the plaintiff while employed by SIPP, establishеd her prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice insofar as asserted against her by submitting the аffirmation of her expert. Patil demonstrated that her diagnosis and treatment of the plaintiff, which she based upon the plaintiff‘s clinical presentation and self-reported medical history, was in accordance with accepted standards of medical practice. She did not, however, establish, prima facie, that her claimed departures were not a proximate cause of the plaintiff‘s injuries. On this element, her expert‘s affirmation in support of her motion was entirely conclusory. Consequently, to defeat her motion, the plaintiff was required only to demonstrate that there was a triable issue of fact as to departure (see Stukas v Streiter, 83 AD3d at 30).
In opposition, the plaintiff raised a triаble issue of fact as to whether Patil departed from the accepted standard of care and, therefore, as to the vicarious liability of SIPP, through the submission of an еxpert affirmation of a physician who specialized in cardiology and internal medicine. The plaintiff‘s expert opined that Patil departed from the accepted standard of care and contributed to the plaintiff‘s injuries by failing to review the plaintiff‘s medical records maintained by SIPP, which indicated that the plaintiff previously had her gallbladder removed. The experts’ disagreement presented an issue of credibility, and issues of credibility are properly left to a jury for resolution (see B.G. v Cabbad, 172 AD3d 686, 688; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 624). Accordingly, the Supreme Court should have denied that branch of Patil‘s motion which was for summary judgment dismissing the cause of action alleging medical malpractice insofar as asserted against her.
With rеgard to Jung, a surgeon at SIPP who performed the subject surgery on the plaintiff on May 13, 2014, the Supreme
In support of their motion, Jung and SIPP submitted the affirmation of their counsel who made reference to and attached thеrewith the plaintiff‘s certified medical records of SIPP. These records included, inter alia, an entry dated September 13, 2011, by a nurse practitioner at SIPP, stating “Hx of cholecystеctomy” and “scar mid upper abd, RUQ from lap cholecystectomy.”
In addition, these defendants proffered the affirmation of their expert, who opined that Jung was entitlеd to rely upon the history provided to him by Patil and the plaintiff, as well as the ultrasound report. This expert opined that Jung‘s assessment of the plaintiff properly “included a review of her documented medical and surgical history.” The expert added that there was no “indication” for Jung “to obtain medical records from a source outside of SIPP or rеview additional records” prior to performing the subject surgery. Notably, the submissions proffered by Jung and SIPP in support of their motion failed to eliminate triable issues of fact as to whether Jung departed from good and accepted medical practice in failing to review the plaintiff‘s documented medical and surgical history relating to the prior cholecystectomy, as contained in SIPP‘s own records (see Ortiz v Chendrasekhar, 154 AD3d 867, 869).
With
In light of the failure of Jung, SIPP, and Opsha to establish prima facie entitlement to judgment as a matter оf law, those branches of their motions which were for summary judgment dismissing the causes of action to recover damages for medical malpractice insofar as asserted against each of them should have been denied, regardless of the sufficiency of the plaintiff‘s submissions in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
RIVERA, J.P., CONNOLLY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court