Opinion
10521 Index 805123/15
12-10-2019
John DAVIS, et al., Plaintiffs–Appellants, v. Samir TANEJA, et al., Defendants–Respondents.
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York (Christopher J. Donadio of counsel), for appellants. Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliot J. Zucker of counsel), for respondents.
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York (Christopher J. Donadio of counsel), for appellants.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliot J. Zucker of counsel), for respondents.
Friedman, J.P., Webber, Kern, Oing, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered November 20, 2018, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiffs' theory of liability in this action alleging medical malpractice relies on the assertion that plaintiff John Davis was affixed to the operating table before the table was flexed into position in preparation for a partial nephrectomy. Defendants made a prima facie showing that Davis was affixed to the table after the table was flexed, through plaintiff's medical records, which noted that his skin was intact after the nephrectomy. Defendants' expert urologist agreed with defendant doctors' testimonies that the patient's skin would have torn if the table was flexed after the patient was affixed to it (see Roques v. Noble , 73 A.D.3d 204, 206, 899 N.Y.S.2d 193 [1st Dept. 2010] ).
In opposition, plaintiffs failed to raise a triable issue of fact. Plaintiffs' expert did not deny that plaintiff's skin would have been torn if he were affixed to the table before it was flexed, and plaintiffs did not submit evidence addressing the condition of Davis's skin after the surgery. Nor did plaintiffs identify any note in his medical records that indicated that his skin had been damaged. The operative report by Dr. Taneja is insufficient to raise an issue of fact, in light of the testimony that the report only listed the actions that occurred, not necessarily in chronological order, and the fact that the report clearly lists the placement of the Foley catheter out of order (see DeFilippo v. New York Downtown Hosp. , 10 A.D.3d 521, 523, 782 N.Y.S.2d 25 [1st Dept. 2004] ).
We have considered plaintiffs' remaining arguments and find them unavailing.