Opinion
2017–09294 Index No. 701224/15
12-20-2023
Christine ALVARELLOS, etc., appellant, v. P. TASSINARI, et al., defendants, Home Care Specialist, Inc., et al., respondents.
Trolman, Glaser & Lichtman, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Paul H. Seidenstock ], of counsel), for appellant. Pilkington & Leggett, P.C., White Plains, NY (Michael N. Romano of counsel), for respondents Giovanni Marciano, Joseph Miccoli, Glenn Muranca, and Tanesha Lawrence, and Campolo, Middleton & McCormick LLP, Ronkonkoma, NY (Christine Malafi of counsel), for respondent New York Family Practice Physicians, P.C. (one brief filed). Heidell, Pittoni, Murphy & Bach, LLP, White Plains, NY (Daryl Paxson of counsel), for respondent American Outcomes Management, L.P. Tromello & Fishman, Melville, NY (Robert D. Martin of counsel), for respondent Barbara A. Lynch, and Milber Makris Plousadis & Seiden, LLP, White Plains, NY (Andrew F. Pisanelli of counsel), for respondent Home Care Specialist, Inc. (one brief filed). Kelley Drye & Warren LLP, New York, NY (Robert I. Steiner, Levi Downing, and Anne–Marie Mitchell of counsel), for respondent Laboratory Corporation of America. Gabriele Marano, LLP, Garden City, NY (Melissa Goldberg of counsel), for respondent First Med Immediate Medical Services of Queens, P.C.
Trolman, Glaser & Lichtman, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Paul H. Seidenstock ], of counsel), for appellant.
Pilkington & Leggett, P.C., White Plains, NY (Michael N. Romano of counsel), for respondents Giovanni Marciano, Joseph Miccoli, Glenn Muranca, and Tanesha Lawrence, and Campolo, Middleton & McCormick LLP, Ronkonkoma, NY (Christine Malafi of counsel), for respondent New York Family Practice Physicians, P.C. (one brief filed).
Heidell, Pittoni, Murphy & Bach, LLP, White Plains, NY (Daryl Paxson of counsel), for respondent American Outcomes Management, L.P.
Tromello & Fishman, Melville, NY (Robert D. Martin of counsel), for respondent Barbara A. Lynch, and Milber Makris Plousadis & Seiden, LLP, White Plains, NY (Andrew F. Pisanelli of counsel), for respondent Home Care Specialist, Inc. (one brief filed).
Kelley Drye & Warren LLP, New York, NY (Robert I. Steiner, Levi Downing, and Anne–Marie Mitchell of counsel), for respondent Laboratory Corporation of America.
Gabriele Marano, LLP, Garden City, NY (Melissa Goldberg of counsel), for respondent First Med Immediate Medical Services of Queens, P.C.
COLLEEN D. DUFFY, J.P., LINDA CHRISTOPHER, LILLIAN WAN, CARL J. LANDICINO, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for medical malpractice and wrongful death, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Peter J. O'Donoghue, J.), entered October 10, 2017. The judgment, insofar as appealed from, upon an order of the same court entered July 24, 2017, granting (1) the motion of the defendants First Med Immediate Medical Services of Queens, P.C., for summary judgment dismissing the complaint insofar as asserted against it, (2) the motion of the defendants Giovanni Marciano, Joseph Miccoli, Glenn Muranca, Tanesha Lawrence, and New York Family Practice Physicians, P.C., for summary judgment dismissing the complaint insofar as asserted against them, (3) the motion of the defendant Laboratory Corporation of America for summary judgment dismissing the complaint insofar as asserted against it, (4) the motion of the defendants Barbara A. Lynch and Home Care Specialist, Inc., for summary judgment dismissing the complaint insofar as asserted against them, and (5) that branch of the motion of the defendant American Outcomes Management, L.P., which was for summary judgment dismissing the complaint insofar as asserted against it, is in favor of those defendants and against the plaintiff dismissing the complaint insofar as asserted against those defendants.
ORDERED that the judgment is modified, on the law, by deleting the provisions thereof dismissing the complaint insofar as asserted against the defendants Barbara A. Lynch and Home Care Specialist, Inc., and, in effect, dismissing the cause of action alleging vicarious liability insofar as asserted against the defendant American Outcomes Management, L.P., based upon alleged medical malpractice committed by the defendant Barbara A. Lynch; as so modified, the judgment is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendants Barbara A. Lynch and Home Care Specialist, Inc., and one bill of costs to the defendants First Med Immediate Medical Services of Queens, P.C., Giovanni Marciano, Joseph Miccoli, Glenn Muranca, Tanesha Lawrence, New York Family Practice Physicians, P.C., Laboratory Corporation of America, and American Outcomes Management, L.P., appearing separately and filing separate briefs, payable by the plaintiff, the motion of the defendants Barbara A. Lynch and Home Care Specialist, Inc., for summary judgment dismissing the complaint insofar as asserted against them is denied, the order entered July 24, 2017, is modified accordingly, so much of the order entered July 24, 2017 as granted that branch of the motion of the defendant American Outcomes Management, L.P., which was for summary judgment dismissing the cause of action alleging vicariously liability insofar as asserted against it based upon alleged medical malpractice committed by the defendant Barbara A. Lynch is vacated, the complaint insofar as asserted against the defendants Barbara A. Lynch and Home Care Specialist, Inc., and the cause of action alleging vicarious liability insofar as asserted against the defendant American Outcomes Management, L.P., based upon alleged medical malpractice committed by the defendant Barbara A. Lynch are reinstated, and the matter is remitted to the Supreme Court, Queens County, for a new determination of that branch of the motion of the defendant American Outcomes Management, L.P., which was for summary judgment dismissing the cause of action alleging vicarious liability insofar as asserted against it based on alleged medical malpractice committed by the defendant Barbara A. Lynch.
The plaintiff, as administrator of the estate of Rodolfo Alvarellos (hereinafter the decedent), commenced this action, inter alia, to recover damages for medical malpractice and wrongful death against, among others, the defendants First Med Immediate Medical Services of Queens, P.C. (hereinafter First Medical), Giovanni Marciano, Joseph Miccoli, Glenn Muranca, Tanesha Lawrence, and New York Family Practice Physicians, P.C. (hereinafter collectively the N.Y. Family defendants), Laboratory Corporation of America (hereinafter Labcorp), American Outcomes Management, L.P. (hereinafter AOM), Home Care Specialist, Inc. (hereinafter Home Care Specialist), and Barbara A. Lynch. According to the plaintiff, those defendants’ respective treatment and care of the decedent after he suffered an injury to his foot in June 2011 led to renal failure and his death in February 2013. The plaintiff alleged that First Medical and the N.Y. Family defendants were negligent in diagnosing and treating the decedent's injury, which resulted in a systemic infection requiring an antibiotic treatment that caused his renal failure and death. The plaintiff also alleged that Labcorp, Lynch, Home Care Specialist, and AOM were negligent in causing the decedent's renal failure or its progression and the decedent's death inasmuch as they failed to perform necessary or timely tests, and failed to properly monitor the decedent. The plaintiff also alleged that AOM was vicariously liable for the acts of Lynch.
As relevant to the appeal, Home Care Specialist and Lynch moved for summary judgment dismissing the complaint insofar as asserted against them. First Medical, the N.Y. Family defendants, and Labcorp separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. AOM moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. In an order entered July 24, 2017, the Supreme Court, among other things, granted that branch of AOM's motion which was for summary judgment dismissing the complaint insofar as asserted against it, and granted each of the other motions for summary judgment dismissing the complaint insofar as asserted against each of those respective defendants. Thereafter, on October 10, 2017, a judgment was entered upon the order. The plaintiff appeals.
"On a motion for summary judgment dismissing the complaint in a medical malpractice action, a defendant must make a prima facie showing either that there was no departure from good and accepted medical practice, or that the plaintiff was not injured by any such departure" ( Bum Yong Kim v. North Shore Long Is. Jewish Health Sys., Inc., 202 A.D.3d 653, 655, 162 N.Y.S.3d 132 ). "Once a defendant physician has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, ... but only as to the elements on which the defendant met the prima facie burden" ( Dixon v. Chang, 163 A.D.3d 525, 527, 79 N.Y.S.3d 648 [internal quotation marks omitted]). " ‘General and conclusory allegations of medical malpractice, ... unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician's summary judgment motion’ " ( Scopelliti v. Westmed Med. Group, 193 A.D.3d 1009, 1010, 146 N.Y.S.3d 656, quoting Myers v. Ferrara, 56 A.D.3d 78, 84, 864 N.Y.S.2d 517 ). "In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record" ( Tsitrin v. New York Community Hosp., 154 A.D.3d 994, 996, 62 N.Y.S.3d 506 [internal quotation marks omitted]).
Here, First Medical established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting the affirmation of an expert, a board-certified internist and infectious disease specialist, who opined, among other things, that the treatment provided by First Medical was in accordance with the accepted standard of care and, in any event, First Medical did not proximately cause the decedent's alleged renal failure or subsequent death inasmuch as the antibiotic it prescribed was appropriate and does not cause renal issues (see Brinkley v. Nassau Health Care Corp., 120 A.D.3d 1287, 1289, 993 N.Y.S.2d 73 ). In opposition, the plaintiff failed to demonstrate the existence of a triable issue of fact. The assessment of the plaintiff's expert as to the treatment provided to the decedent by First Medical was conclusory and speculative, and failed to refute the opinion of First Medical's expert regarding proximate cause (see Attia v. Klebanov, 192 A.D.3d 650, 652, 143 N.Y.S.3d 408 ; Schwartz v. Partridge, 179 A.D.3d 963, 965, 117 N.Y.S.3d 300 ).
The N.Y. Family defendants likewise established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by submitting the affirmation of an expert, a physician board certified in internal medicine, hematology, and oncology, who opined that the treatment provided by Miccoli, who was the only N.Y. Family defendant who treated the decedent, was in accordance with the accepted standard of care, which included a referral to a surgeon, and that Miccoli did not proximately cause the decedent's injuries inasmuch as he did not prescribe the medications that contributed to the decedent's renal failure (see Brinkley v. Nassau Health Care Corp., 120 A.D.3d at 1289, 993 N.Y.S.2d 73 ). In opposition, the plaintiff failed to demonstrate the existence of a triable issue of fact. The affirmation of the plaintiff's expert, as it pertains to the treatment provided by Miccoli, was conclusory and speculative, and failed to address the specific assertions of the N.Y. Family defendants’ expert regarding proximate cause (see Attia v. Klebanov, 192 A.D.3d at 652, 143 N.Y.S.3d 408 ).
The Supreme Court also properly determined that Labcorp established its prima facie entitlement to judgment as a matter of law. The plaintiff failed to raise a triable issue of fact in opposition (see Feng Xie v. New York City Health and Hosps. Corp., 179 A.D.3d 895, 897, 117 N.Y.S.3d 273 ).
However, the Supreme Court should have denied the motion of Lynch and Home Care Specialist for summary judgment dismissing the complaint insofar as asserted against them. Contrary to the court's determination, in opposition to the prima facie showing of Lynch and Home Care Specialist that they acted within the prevailing standards of nursing practice, the plaintiff's expert, a registered nurse, raised a triable issue of fact as to whether Lynch deviated from the accepted standard of care. The plaintiff's expert opined that, among other things, Lynch's failure to relay the decedent's condition to the decedent's doctor was a deviation from the standard of nursing care, specifically Lynch's failure to report the decedent's elevated temperature, ruddy complexion, and lethargy, to the decedent's doctor on August 5, 2011. Additionally, the plaintiff's expert opined that Lynch's failure to check with the decedent's doctor before submitting the decedent's blood samples to Labcorp about whether the samples should be submitted to that lab, or to inquire at what level of urgency the results were needed, was a deviation from the standard of nursing care. The plaintiff was not required to raise a triable issue of fact as to the element of proximate cause, as the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law as to that element in their initial motion (see Kielb v. Bascara, 217 A.D.3d 756, 757, 191 N.Y.S.3d 158 ; Stukas v. Streiter, 83 A.D.3d 18, 30–31, 918 N.Y.S.2d 176 ). Where, as here, the plaintiff raised a triable issue of fact or the parties submit conflicting medical expert opinions, summary judgment is not appropriate (see Sheppard v. Brookhaven Mem. Hosp. Med. Ctr., 171 A.D.3d 1234, 1235, 98 N.Y.S.3d 629 ; Cummings v. Brooklyn Hosp. Ctr., 147 A.D.3d 902, 904, 48 N.Y.S.3d 420 ). Further, as the plaintiff correctly contends, the court should not have considered the new argument and evidence submitted for the first time by Lynch and Home Care Specialist in reply (see Kogut v. Village of Chestnut Ridge, 214 A.D.3d 777, 780, 186 N.Y.S.3d 257 ; Gelaj v. Gelaj, 164 A.D.3d 878, 879, 83 N.Y.S.3d 575 ).
The Supreme Court, in effect, granted that branch of AOM's motion which was for summary judgment dismissing the cause of action alleging vicarious liability insofar as asserted against it based on alleged medical malpractice committed by Lynch upon the court's determination granting summary judgment dismissing the complaint insofar as asserted against Lynch. However, in light of our determination above that a triable issue of fact exists as to Lynch's liability, we remit the matter to the Supreme Court, Queens County, for a new determination, on the merits, of that branch of AOM's motion which was for summary judgment dismissing the cause of action alleging vicarious liability insofar as asserted against it based on alleged medical malpractice committed by Lynch.
As to the cause of action based upon AOM's direct liability, AOM established its prima facie entitlement to judgment as a matter of law through the affidavit of its expert, a board-certified internist with a subspecialty in nephrology, who opined, inter alia, that AOM's actions were not a proximate cause of the decedent's renal failure or subsequent injuries and death insofar as it did not prescribe or administer the renal toxic medication to the decedent. The expert also opined that any delay in the receipt of certain laboratory test results occasioned by AOM was not a proximate cause of the decedent's kidney failure and death since, even if the test results had been reported earlier, the decedent's renal failure could not have been reversed (see Feng Xie v. New York City Health and Hosps. Corp., 179 A.D.3d at 897, 117 N.Y.S.3d 273 ; Bethune v. Monhian, 168 A.D.3d 902, 903, 91 N.Y.S.3d 248 ). In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiff's expert, a pharmacist, lacked probative value with respect to proximate cause because the pharmacist failed to specify that he or she had any specific training or expertise in nephrology or in the diagnosis and treatment of renal failure (see Korszun v. Winthrop Univ. Hosp., 172 A.D.3d 1343, 1345, 101 N.Y.S.3d 408 ). In addition, the opinion was conclusory and did not adequately controvert the opinions asserted by AOM's expert that the decedent's renal failure was irreversible and was not proximately caused by AOM (see Feng Xie v. New York City Health and Hosps. Corp., 179 A.D.3d at 897, 117 N.Y.S.3d 273 ; Lowe v. Japal, 170 A.D.3d 701, 703, 95 N.Y.S.3d 363 ).
The parties’ remaining contentions either are not properly before this Court or need not be reached in light of our determination.
DUFFY, J.P., CHRISTOPHER, WAN and LANDICINO, JJ., concur.