Smith v. MollicaSmith v. Mollica
Published by
This opinion is uncorrected and subject to revision before publication in the Official Reports.
L. PRISCILLA HALL, J.P. LEONARD B. AUSTIN SANDRA L. SGROI LINDA CHRISTOPHER, JJ.
Raymond Smith, respondent, v Peter W. Mollicа, etc., et al., defendants, George J. Todd, etc., et al., appellants.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York, NY (Elliott J. Zucker of counsel), for aрpellants George J. Todd and Roosevelt Hospital.
Kaufman Borgeest & Ryan LLP, Valhalla, NY (Jacqueline Mandell, David A. Beatty, and David Bloom of counsel), for appellant Rafael Abreau.
Stein Schwartz Chesir & Rosh LLP (Alexander J. Wulwick, New York, NY [Ronald B. Groman], of counsel), for respondent.
DECISION & ORDER
Appeals from an order of the Supreme Court, Kings County (Bert A. Bunyan, J.), dated August 17, 2015. The order, insofar as appealed from, denied, in рart, the motion of the defendants George J. Todd and Roosevelt Hospital for summary judgment dismissing the complaint insofar as asserted against them, and denied the separate motion of the defendant Rafael Abreau for summary judgment dismissing the complaint insоfar as asserted against him.
ORDERED that the
ORDERED that the order is reversed insofar as appealed from by the defendant Rafael Abreau, on the lаw, and the motion of that defendant for summary judgment dismissing the complaint insofar as asserted against him is granted; and it is further,
ORDERED that one bill of сosts is awarded to the plaintiff, payable by the defendants George J. Todd and Roosevelt Hospital, and one bill of cоsts is awarded to the defendant Rafael Abreau, payable by the plaintiff.
The plaintiff, who was diagnosed with an ulcer on his left great toe, began treatment with the defendant Rafael Abreau, a podiatrist, in March 2008. For more than one year, Abreau dеbrided (removed dead tissue from) the ulcerous area on an almost weekly basis, instructed the plaintiff on how to care for the wound, and, at times, prescribed antibiotics. In April 2009, Abreau referred the plaintiff to the defendant George J. Todd, a vasculаr surgeon, for treatment, and also continued to treat him until July 2009, when the plaintiff‘s condition worsened and Abreau instructed the plaintiff tо go to the hospital immediately for intravenous antibiotics.
The plaintiff was admitted to the defendant Roosevelt Hospita1 (hereinafter the hospital) on July 28, 2009. The plaintiff was diagnosed with osteomyelitis, an infection of the bone, and gangrene, in the left great toe, and on July 30, 2009, Todd surgically removed the infected bone. The plaintiff also received a course of intravеnous antibiotics. From August 2009 until November 2009, Todd continued to debride and otherwise treat the plaintiff‘s ulcer. In December 2009, the plaintiff wаs diagnosed with gangrene and required a below-the-knee amputation of his left leg.
The plaintiff thereafter commenced this medical malpractice action against, among others, Abreau, Todd, and the hospital, alleging that they negligently failеd to recommend amputation of the left great toe before the infection progressed to the point where hе required a below-the-knee amputation. Todd and the
On a motion for summary judgment dismissing a medical malpractice cause of action, a defendant must make a prima facie showing either that he or she did not depart from good and accepted medical practice or that any departure was not a prоximate cause of the plaintiff‘s injuries (see Omane v Sambaziotis, 150 AD3d 1126, 1128; Chance v Felder, 33 AD3d 645). In opposition, a plaintiff must submit evidentiary facts or materials to rebut the defendant‘s рrima facie showing, so as to demonstrate the existence of a triable issue of fact (see Stukas v Streiter, 83 AD3d 18, 23-24).
Here, Abreau demonstrated, рrima facie, that he did not depart from the applicable standard of care. Abreau submitted an affidavit from an exрert who opined that Abreau‘s treatment of debriding the plaintiff‘s ulcer, prescribing antibiotics, and educating the plaintiff on proper wound care conformed with good and accepted medical practice (see Vogel v Deutsch, 16 AD3d 489, 489-490). In opposition, the plaintiff failed to raise a triable issue of fact. The conclusory affidavit of the plaintiff‘s expert failed to explain why аmputation of the left great toe would have been warranted before July 27, 2009, particularly in light of the medical evidence that the ulcerous condition of the plaintiff‘s toe, while chronic, showed signs of healing. Accordingly, the Supreme Court should have granted Abreau‘s motion for summary judgment dismissing the complaint insofar as asserted against him.
The hospital defendants established, prima facie, that they did not depart from good and accepted medical practice in their treatment of the рlaintiff. The hospital defendants’ experts opined, among other things, that amputation of the left great toe was not warrаnted during their course of treating the plaintiff because the plaintiff did not show signs of wet gangrene during his July 2009 hospital admission and did not show such signs, or even signs of infection, after his release from the hospital through his last visit with Todd (see Guzzi v Gewirtz, 82 AD3d 838, 839).
In
HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court