In A Medical Malpractice Action, General Allegations Are Insufficient To Defeat Summary Judgment
August, 2007
In Rebozo v. Wilen, 2007 WL 1629992 (2nd Dep’t June 5, 2007), Plaintiff, Stephanie Rebozo, brought an action against a surgeon and consulting physician to recover damages for medical malpractice and lack of informed consent following a slip-and-fall accident. The accident resulted in three surgeries to repair the damage Plaintiff sustained to both of her knees. The Supreme Court, Richmond County denied the consulting physician’s motion for summary judgment. The consulting physician appealed.
In January, 2000, Plaintiff suffered injuries in a slip-and-fall accident which required her to undergo three surgeries in order to repair the damage she sustained to both of her knees. As a result of such injuries, Plaintiff sought treatment from surgeon Daniel Wilen (“Wilen”), who referred her to the South Shore Rehabilitation and Orthopedics (“South Shore”). While at South Shore, Plaintiff underwent an extended course of treatment with a physical therapist and also consulted with Defendant, David H. Zelefsky (“Zelefsky”), on two separate occasions: May 4, 2000 and August 31, 2000. When the swelling, pain and stiffness in Plaintiff’s left knee failed to improve, she continued to consult Wilen, as well as other physicians, some of whom concluded that her symptoms were consistent with reflex symptomatic dystrophy (“RSD”).
After consulting with physicians regarding her condition, Plaintiff subsequently brought an action to recover damages for medical malpractice and lack of informed consent, alleging that in failing to timely diagnose RSD or to refer her to a specialist in the treatment of RSD, Defendant Zelefsky deviated from accepted standards of medical care. Plaintiff further alleged that Zelefsky’s failure to timely diagnose and failure to refer her to a specialist resulted in her current chronic condition, which required continued pain management and physical therapy.
The trial court denied Defendant Zelefsky’s motion for summary judgment dismissing the complaint, insofar as it asserted claims against him, holding that the conflicting medical expert opinion evidence raised a triable issue of fact regarding whether Defendant Zelefsky deviated from good and acceptable medical practice. On appeal, the Appellate Division, Second Department, reversed the lower court’s finding. The Court found that the evidence submitted in support of Plaintiff’s opposition to Defendant Zelefsky’s motion for summary judgment failed to raise a triable issue of fact.
The essential elements of a medical malpractice claim are: 1) a deviation or departure from good and accepted practice, and 2) evidence that such departure was a proximate cause of plaintiff’s injury or damage. Rebozo v. Wilen, supra; see also Thompson v. Orner, 36 A.D.3d 791, 828 N.Y.S.2d 509 (2nd Dep’t 2007); Anderson v. Lamaute, 306 A.D.2d 232, 233, 761 N.Y.S.2d 87 (2nd Dep’t 2003). Therefore, on a motion for summary judgment, a defendant physician has the “initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby.” William v. Sahay, 12 A.D.3d 366, 368, 783 N.Y.S.2d 664 (2nd Dep’t 2004).
In opposition to a defendant/physician’s motion for summary judgment, the plaintiff must submit a physician’s affidavit attesting to the defendant/physician’s departure from good and accepted medical practice and that such departure was a proximate cause of the plaintiff’s injury. Rebozo v. Wilen, supra.; see also Domaradzki v. Glen Cove Ob/Gyn Assoc., 242 A.D.2d 282, 660 N.Y.S.2d 739 (2nd Dep’t 1997). General allegations contained in a physician’s affidavit submitted in opposition to a defendant/physician’s motion for summary judgment, which are “conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment.” Rebozo v. Wilen, supra. (emphasis added).
In Reboz, in support of Defendant Zelefsky’s motion, he submitted an expert affirmation, medical records and testimony which established that on May 4, 2000, Plaintiff displayed some symptoms which were consistent with an RSD diagnosis; however, she did not exhibit all of the symptoms necessary for a diagnosis of RSD. Defendant Zelefsky’s supporting papers further established that Plaintiff’s condition was attributable to extreme trauma and recent operative procedures. Id. Moreover, Defendant Zelefsky’s evidence showed that Plaintiff saw him again on August 31, 2000, and on that date, Plaintiff’s condition had improved due to her treatment plan of physical therapy and pain medication. Id. Based upon the aforementioned evidence, Defendant Zelefsky’s expert concluded that the treatment Zelefsky prescribed did not depart from accepted standards of medical care. Id. Furthermore, the expert concluded that Zelefsky’s prescribed treatment was not the proximate cause of Plaintiff’s injuries. As such, Defendant Zelefsky met his initial burden of proof. Id.
In opposition, Plaintiff submitted a conclusory expert affirmation which lacked factual support and failed to address the assertions made by Defendant Zelefsky’s expert. Moreover, Plaintiff’s opposition papers failed to explain why the treatment rendered by Defendant Zelefsky on May 4, 2000 and August 31, 2000 deviated from good and accepted medical practice. Id. Thus, the Court found that Plaintiff failed to raise a triable issue of fact regarding the “standard of care sufficient to defeat the defendant’s motion for summary judgment.” Id. Finally, the Court stated that Plaintiff’s expert failed to differentiate between the acts of numerous medical providers and failed to explain how Plaintiff’s injuries would have been less severe had an earlier diagnosis of RSD been made. Id. As such, the Court concluded that Plaintiff failed to raise a triable issue of fact regarding the proximate cause of her injuries.
Learning Point:
In order to defeat a defendant/physician’s motion for summary judgment in New York, a plaintiff’s answering papers must establish, by an accompanying physician’s affirmation, the essential elements of a medical malpractice claim which include: 1) a deviation or departure from good and accepted practice, and 2) evidence that such departure was a proximate cause of plaintiff’s injury or damage. A conclusory expert affirmation that is unsupported by competent evidence tending to establish the requisite elements of a medical malpractice action is insufficient to defeat summary judgment.
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