Opinion
14328 Index No. 27187/16 Case No. 2020–03876
10-12-2021
Erasmo Montero BERAS, Plaintiff–Appellant, v. Fred CUSHNER, M.D., Defendant–Respondent.
Arnold E. DiJoseph, P.C., New York (Arnold E. DeJoseph III of counsel), for appellant. Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliott J. Zucker of counsel), for respondent.
Arnold E. DiJoseph, P.C., New York (Arnold E. DeJoseph III of counsel), for appellant.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliott J. Zucker of counsel), for respondent.
Renwick, J.P., Kern, Oing, Mendez, Rodriguez, JJ.
Judgment, Supreme Court, Bronx County (Joseph Capella, J.), entered September 23, 2019, dismissing the complaint, unanimously affirmed, without costs.
On his motion for summary judgment, defendant established prima facie that in performing plaintiff's left total knee replacement he did not depart from good and accepted medical practice (see Anyie B. v. Bronx Lebanon Hosp., 128 A.D.3d 1, 3, 5 N.Y.S.3d 92 [1st Dept. 2015] ). Defendant's expert opined, based on his review of the record, that defendant properly used intraoperative technique in using a femur component navigation guide to size the femur, tested three different corresponding tibial components, and considered plaintiff's anatomy in relation to the rotation of each component to determine the best fit. The expert further opined that a lateral tibial overhang is usually tolerated well by patients and is not evidence of malpractice.
In opposition, plaintiff failed to raise an issue of fact (see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002] ). Notably, his expert did not opine that defendant deviated from accepted medical practice in using the navigation system and his professional judgment to size the components. To the extent plaintiff's allegations amount to a mere error in professional judgment, defendant cannot be held liable (see Schrempf v. State of New York, 66 N.Y.2d 289, 295, 496 N.Y.S.2d 973, 487 N.E.2d 883 [1985] ). Moreover, while plaintiff's expert opined that a lateral tibial overhang of 3 mm or more represented a departure from accepted practice, there is no indication in the record of the degree of overhang in plaintiff's case or on what basis plaintiff's expert arrived at his conclusion that the existence of the lateral overhang indicated a departure from the standard of care.