Opinion
2014-12-10
Gary REISS, et al., respondents, v. Neil J. SAYEGH, etc., et al., appellants.
Pilkington & Leggett, P.C., White Plains, N.Y. (Michael N. Romano of counsel), for appellants. Timothy G. Griffin, Bronxville, N.Y., for respondents.
Pilkington & Leggett, P.C., White Plains, N.Y. (Michael N. Romano of counsel), for appellants. Timothy G. Griffin, Bronxville, N.Y., for respondents.
WILLIAM F. MASTRO, J.P., PETER B. SKELOS, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for medical malpractice, etc., the defendants appeal from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered August 28, 2013, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff Gary Reiss (hereinafter the patient) allegedly sustained injuries to his Achilles tendons as a result of being prescribed fluoroquinolone drugs by the defendants. The patient, and his wife suing derivatively, subsequently commenced this action to recover damages for medical malpractice. The defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion.
“The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury” (Faicco v. Golub, 91 A.D.3d 817, 818, 938 N.Y.S.2d 105 [internal quotation marks omitted]; see Roca v. Perel, 51 A.D.3d 757, 758, 859 N.Y.S.2d 203; Furey v. Kraft, 27 A.D.3d 416, 417–418, 812 N.Y.S.2d 590). “A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no [deviation or] departure or that any alleged [deviation or] departure was not a proximate cause of the plaintiff's injuries” (Garrett v. University Assoc. in Obstetrics & Gynecology, P.C., 95 A.D.3d 823, 825, 944 N.Y.S.2d 197; see Faicco v. Golub, 91 A.D.3d at 818, 938 N.Y.S.2d 105; Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176). “Furthermore, bare allegations which do not refute the specific factual allegations of medical malpractice in the bill of particulars are insufficient to establish entitlement to judgment as a matter of law” (Grant v. Hudson Val. Hosp. Ctr., 55 A.D.3d 874, 874, 866 N.Y.S.2d 726; see Wall v. Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 1045, 912 N.Y.S.2d 77; Terranova v. Finklea, 45 A.D.3d 572, 845 N.Y.S.2d 389; Ward v. Engel, 33 A.D.3d 790, 791, 822 N.Y.S.2d 608).
The Supreme Court concluded that the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not deviate or depart from accepted medical practice, and that any deviation or departure was not the proximate cause of the patient's injuries in any event, but that the plaintiffs raised triable issues of fact in opposition. Although we agree with the Supreme Court that the motion should have been denied, we conclude that the defendants failed to meet their prima facie burden of demonstrating that they did not deviate or depart from accepted medical practice or that such deviation or departure was not a proximate cause of the patient's injuries. Among other deficiencies, the affirmation of the defendants' expert relied upon a disputed fact ( see Plato v. Guneratne, 54 A.D.3d 741, 742, 863 N.Y.S.2d 726; Muscatello v. City of New York, 215 A.D.2d 463, 464, 627 N.Y.S.2d 567), specifically, that the plaintiff had not made any previous complaints about joint or tendon problems arising from his use of fluoroquinolone drugs. Thus, the defendants' motion was properly denied, regardless of the sufficiency of the plaintiffs' submissions ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Lormel v. Macura, 113 A.D.3d 734, 735–736, 979 N.Y.S.2d 345; Faicco v. Golub, 91 A.D.3d at 818, 938 N.Y.S.2d 105).