Opinion
385 CA 21-00881
07-08-2022
George ZIEMENDORF and Denise Ziemendorf, Plaintiffs-Respondents, v. Yong B. CHI, M.D., Yong B. Chi, M.D., P.L.L.C., Defendants-Appellants, et al., Defendants.
CONNORS LLP, BUFFALO (JOHN T. LOSS OF COUNSEL), FOR DEFENDANTS-APPELLANTS. MEYERS BUTH LAW GROUP, PLLC, ORCHARD PARK (PATRICK J. MALONEY OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
CONNORS LLP, BUFFALO (JOHN T. LOSS OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
MEYERS BUTH LAW GROUP, PLLC, ORCHARD PARK (PATRICK J. MALONEY OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the second amended complaint and any cross claims against defendants Yong B. Chi, M.D. and Yong B. Chi, M.D., P.L.L.C. are dismissed.
Memorandum: Plaintiffs commenced this medical malpractice action after George Ziemendorf (plaintiff) suffered an epidural abscess that left him partially paralyzed, alleging, inter alia, that Yong B. Chi, M.D. and Yong B. Chi, M.D., P.L.L.C. (defendants) failed to timely diagnose and treat the condition. Defendants appeal from an order denying their motion for summary judgment dismissing the second amended complaint and any cross claims against them, and we reverse.
In moving for summary judgment in a medical malpractice action, a defendant has "the initial burden of establishing either that there was no deviation or departure from the applicable standard of care or that any alleged departure did not proximately cause the plaintiff's injuries" ( Occhino v. Fan , 151 A.D.3d 1870, 1871, 57 N.Y.S.3d 325 [4th Dept. 2017] [internal quotation marks omitted]; see Isensee v. Upstate Orthopedics, LLP , 174 A.D.3d 1520, 1521, 103 N.Y.S.3d 342 [4th Dept. 2019] ). There is no dispute here that defendants met their initial burden on their motion with respect to both issues, and thus "the burden shifted to plaintiffs to raise triable issues of fact by submitting an expert's affidavit both attesting to a departure from the accepted standard of care and that defendants’ departure from that standard of care was a proximate cause of the injur[ies]" ( Isensee , 174 A.D.3d at 1522, 103 N.Y.S.3d 342 ; see Bubar v. Brodman , 177 A.D.3d 1358, 1359, 111 N.Y.S.3d 483 [4th Dept. 2019] ).
Even assuming, arguendo, that plaintiffs raised triable issues of fact with respect to whether defendants deviated from the accepted standard of care, we conclude that the opinion of plaintiffs’ expert with respect to the issue of proximate cause was insufficient to defeat defendants’ motion for summary judgment (see Diaz v. New York Downtown Hosp. , 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002] ; Simko v. Rochester Gen. Hosp. , 199 A.D.3d 1408, 1409-1410, 157 N.Y.S.3d 653 [4th Dept. 2021] ). Where the plaintiff alleges that the defendant "negligently failed or delayed in diagnosing or treating a condition, a finding that the negligence was a proximate cause of an injury to the patient may be predicated on the theory that the defendant thereby diminished [the patient's] chance of a better outcome" ( Clune v. Moore , 142 A.D.3d 1330, 1331, 38 N.Y.S.3d 852 [4th Dept. 2016] [internal quotation marks omitted]; see Wolf v. Persaud , 130 A.D.3d 1523, 1525, 14 N.Y.S.3d 601 [4th Dept. 2015] ). However, expert assertions that are "vague, conclusory, speculative, and unsupported by the medical evidence in the record" are insufficient to raise a triable issue of fact ( Occhino , 151 A.D.3d at 1871, 57 N.Y.S.3d 325 [internal quotation marks omitted]; see Simko , 199 A.D.3d at 1410, 157 N.Y.S.3d 653 ; Martingano v. Hall , 188 A.D.3d 1638, 1640, 135 N.Y.S.3d 719 [4th Dept. 2020], lv denied 36 N.Y.3d 912, 2021 WL 1741737 [2021] ). Here, plaintiffs’ expert failed to offer anything other than a conclusory assertion that defendants’ deviation from accepted standards of medical care caused plaintiff's injuries; indeed, although it appears that plaintiffs’ theory of causation is that defendants’ alleged failure or delay in diagnosing plaintiff with a spinal cord issue diminished his chances of a better outcome, plaintiffs’ expert never actually renders that opinion. Inasmuch as plaintiffs failed to raise a triable issue of fact regarding causation, the court erred in denying the motion (see Martingano , 188 A.D.3d at 1640, 135 N.Y.S.3d 719 ; see also Simko , 199 A.D.3d at 1409-1410, 157 N.Y.S.3d 653 ).