Garbowski v. Hudson Valley Hospital Center

44 Citing cases

  1. Mitchell v. Lograno

    108 A.D.3d 689 (N.Y. App. Div. 2013)   Cited 17 times
    Dismissing lack of informed consent claim where the plaintiff's expert only testified that it was a deviation for the doctor to have failed to recommend a c-section and to seek the mother's consent for a c-section without otherwise addressing the insufficiency of information provided

    re was a proximate cause of injury or damage” ( Lau v. Wan, 93 A.D.3d 763, 765, 940 N.Y.S.2d 662;see Castro v. New York City Health & Hosps. Corp., 74 A.D.3d 1005, 903 N.Y.S.2d 152;Deutsch v. Chaglassian, 71 A.D.3d 718, 719, 896 N.Y.S.2d 431;Geffner v. North Shore Univ. Hosp., 57 A.D.3d 839, 842, 871 N.Y.S.2d 617). “A defendant physician moving for summary judgment in a medical malpractice action has the initial burden of establishing, prima facie, either the absence of any departure from good and accepted medical practice or that any departure was not the proximate cause of the alleged injuries” ( Lau v. Wan, 93 A.D.3d at 765, 940 N.Y.S.2d 662;see Shichman v. Yasmer, 74 A.D.3d 1316, 904 N.Y.S.2d 218;Larsen v. Loychusuk, 55 A.D.3d 560, 561, 866 N.Y.S.2d 217;Sandmann v. Shapiro, 53 A.D.3d 537, 861 N.Y.S.2d 760). Here, Lograno met his initial burden of demonstrating that he did not deviate from accepted medical practice through his deposition testimony and his expert's affidavit ( see Garbowski v. Hudson Val. Hosp. Ctr., 85 A.D.3d 724, 726, 924 N.Y.S.2d 567). In her affidavit, Lograno's expert, a board-certified obstetrician/gynecologist, Dr. Hilma Yu, opined that, as of the time that Lograno's on-call shift at the hospital was ending, Lograno correctly determined, based on the results of the biophysical profile and the continued fetal heart monitoring tracings, that delivery by cesarean sectionwas not yet indicated ( see Lau v. Wan, 93 A.D.3d at 765, 940 N.Y.S.2d 662;Sandmann v. Shapiro, 53 A.D.3d 537, 861 N.Y.S.2d 760).

  2. Barrett v. Hudson Valley Cardiovascular Assocs., P.C.

    91 A.D.3d 691 (N.Y. App. Div. 2012)   Cited 43 times

    On a motion for summary judgment, the defendant has the “burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby” ( Rebozo v. Wilen, 41 A.D.3d 457, 458, 838 N.Y.S.2d 121; see Stukas v. Streiter, 83 A.D.3d 18, 918 N.Y.S.2d 176; Keevan v. Rifkin, 41 A.D.3d 661, 839 N.Y.S.2d 151; Thompson v. Orner, 36 A.D.3d 791, 792, 828 N.Y.S.2d 509). To successfully oppose the motion, the plaintiff “must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact” ( Deutsch v. Chaglassian, 71 A.D.3d 718, 719, 896 N.Y.S.2d 431; see Garbowski v. Hudson Valley Hosp. Center, 85 A.D.3d 724, 726, 924 N.Y.S.2d 567). General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572; Flanagan v. Catskill Regional Med. Ctr., 65 A.D.3d 563, 565, 884 N.Y.S.2d 131). Torres and the Heart Center (hereinafter together the defendants) established their prima facie entitlement to judgment as a matter of law by submitting the expert affidavits of a neurologist and a cardiologist.

  3. Donnelly v. Parikh

    150 A.D.3d 820 (N.Y. App. Div. 2017)   Cited 59 times

    Contrary to the contention of Zilkha, Long Island Medical, and Long Island MRI (hereinafter collectively the Zilkha defendants), they failed to demonstrate that Zilkha, as a radiologist, did not owe a duty to the plaintiff to discover and note the mass allegedly visible on the MRI films interpreted by him (cf. Meade v. Yland, 140 A.D.3d at 933, 33 N.Y.S.3d 444 ; Covert v. Walker, 82 A.D.3d 825, 826, 918 N.Y.S.2d 208 ; Dockery v. Sprecher, 68 A.D.3d 1043, 1045–1046, 891 N.Y.S.2d 465 ). However, the Zilkha defendants' submissions, which included Zilkha's deposition testimony, established, prima facie, that Zilkha's interpretation of the MRI did not depart from the radiologic standard of care (see DeGiorgio v. Racanelli, 136 A.D.3d 734, 737, 25 N.Y.S.3d 282 ; Garbowski v. Hudson Val. Hosp. Ctr., 85 A.D.3d 724, 726, 924 N.Y.S.2d 567 ). The submissions demonstrated, among other things, that the plaintiff's tumor would present on an MRI "as a mass in the apex of the lung," and that none of the MRI films interpreted by Zilkha on August 7, 2007, showed the apex of the lung (see Lyons v. DeNise, 118 A.D.3d 554, 554, 987 N.Y.S.2d 156 ).

  4. Begley v. City of N.Y.

    111 A.D.3d 5 (N.Y. App. Div. 2013)   Cited 68 times

    With respect to the merits, Timothy made a prima facie showing that she did not depart from good and accepted nursing and professional practice in her treatment and care of Jonathan on July 21, 2004, through the affidavit of her expert Walls Sileo ( see Makinen v. Torelli, 106 A.D.3d 782, 965 N.Y.S.2d 529;Garbowski v. Hudson Val. Hosp. Ctr., 85 A.D.3d 724, 727, 924 N.Y.S.2d 567;Perro v. Schappert, 47 A.D.3d 694, 848 N.Y.S.2d 882). Walls Sileo reviewed Timothy's response to the symptoms of respiratory distress Jonathan began to display in the lunchroom, and opined that it was not a departure from accepted nursing practice for Timothy to initially believe that Jonathan was suffering from an asthma attack based on his medical history and symptoms, and to develop a differential diagnosis of anaphylaxis once his condition worsened.

  5. Marine v. Camissa

    107 A.D.3d 672 (N.Y. App. Div. 2013)   Cited 3 times

    The Supreme Court should have granted the appellant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him. The appellant's detailed, specific, and factual affidavit, in which he indicated that he did not deviate from accepted standards of medical practice, was sufficient to establish his prima facie entitlement to judgment as a matter of law ( see Martino v. Miller, 97 A.D.3d 1009, 1009–1010, 949 N.Y.S.2d 225;Garbowski v. Hudson Val. Hosp. Ctr., 85 A.D.3d 724, 726, 924 N.Y.S.2d 567;Joyner–Pack v. Sykes, 54 A.D.3d 727, 729, 864 N.Y.S.2d 447;Thomas v. Richie, 8 A.D.3d 363, 364, 777 N.Y.S.2d 758). Since none of the other parties opposed the appellant's motion, they failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

  6. Makinen v. Torelli

    106 A.D.3d 782 (N.Y. App. Div. 2013)   Cited 51 times

    that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the patient's injuries ( see Poter v. Adams, 104 A.D.3d 925, 961 N.Y.S.2d 556;Mehra v. Nayak, 103 A.D.3d 857, 962 N.Y.S.2d 247;LeMaire v. Kuncham, 102 A.D.3d 659, 957 N.Y.S.2d 732;Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176). Once a defendant has made such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden ( see LeMaire v. Kuncham, 102 A.D.3d at 660, 957 N.Y.S.2d 732;Stukas v. Streiter, 83 A.D.3d at 23–25, 918 N.Y.S.2d 176). Here, Petitpain made a prima facie showing that she did not depart from good and accepted nursing and professional practice in her examination and treatment of the decedent through the submission of her own affidavit, the deposition testimony of the parties, and medical records ( see Garbowski v. Hudson Val. Hosp. Ctr., 85 A.D.3d 724, 727, 924 N.Y.S.2d 567;Perro v. Schappert, 47 A.D.3d 694, 848 N.Y.S.2d 882). However, she did not make an independent prima facie showing that no claimed departure was a proximate cause of the decedent's injuries ( see Stukas v. Streiter, 83 A.D.3d at 31, 918 N.Y.S.2d 176).

  7. Swanson v. Raju

    95 A.D.3d 1105 (N.Y. App. Div. 2012)   Cited 34 times

    Through the submission of the redacted affirmation of an expert plastic surgeon, the plaintiffs succeeded in raising a triable issue of fact on the issue of departure from accepted community standards of medical practice, but not as to proximate cause ( see Orsi v. Haralabatos, 89 A.D.3d at 998, 934 N.Y.S.2d 195;Wilkins v. Khoury, 72 A.D.3d 1067, 1068, 900 N.Y.S.2d 347). The plaintiffs' expert raised a triable issue of fact as to departure by asserting and explaining that the applicable standard of care required that the injured plaintiff begin passive mobilization therapy within 48 hours after the surgery ( see Garbowski v. Hudson Val. Hosp. Ctr., 85 A.D.3d 724, 726–727, 924 N.Y.S.2d 567). The expert opined as well that the extended immobilization of the injured plaintiff's finger and Raju's one-month delay in prescribing therapy proximately caused the injured plaintiff's claimed injuries.

  8. Gray v. Vogel

    2024 N.Y. Slip Op. 30035 (N.Y. Sup. Ct. 2024)

    The remaining predicates consisted of the alleged failure to timely and properly perform: (1) a sonogram of the patient's veins below his right knee; (2) a VQ scan of his veins below his right knee; (3) a CT angiogram; and (4) an MRI. See Garbowski v. Hudson Val. Hasp. Or., 85 A.D.3d 724, 924 N.Y.S.2d 567 (2d Dept., 2011). Discussion

  9. Lopez v. Micalizzi

    2021 N.Y. Slip Op. 33595 (N.Y. Sup. Ct. 2021)

    or depart from accepted medical practice in the treatment of the plaintiff or that it was not the proximate cause of plaintiff's injuries (see Castro v New York City Health & Hosps. Corp., 74 A.D.3d 1005, 903 N.Y.S.2d 152 [2d Dept 2010]; Deutsch v Chaglassian, 71 A.D.3d 718, 896 N.Y.S.2d 431 [2d Dept 2010]; Plato v Guneratne, 54 A.D.3d 741, 863 N.Y.S.2d 726 [2d Dept 2008]; Jones v Ricciardelli, 40 A.D.3d 935, 836 N.Y.S.2d 879 [2d Dept 2007]; Mendez v City of New York, 295 A.D.2d 487, 744 N.Y.S.2d 847 [2d Dept 2002]). To satisfy this burden, the defendant must present expert opinion testimony that is supported by facts in the record and addresses the essential allegations in the bill of particulars (see Roques v Noble, 73 A.D.3d 204, 899 N.Y.S.2d 193 [1st Dept 2010]; Ward v Engel, 33 A.D.3d 790, 822 N.Y.S.2d 608 [2d Dept 2006]). Conclusory statements that do not address the allegations in the pleadings are insufficient to establish entitlement to summary judgment (see Garbowski v Hudson Val. Hosp. Ctr., 85 A.D.3d 724, 924 N.Y.S.2d [2d Dept 2011 ]). A physician owes a duty of reasonable care to his or her patients and will generally be insulated from liability where there is evidence that he or she conformed to the acceptable standard of care and practice (see Spensieri v Lasky, 94 N.Y.2d 231, 701 N.Y.S.2d 689 [1999]; Barrett v Hudson Valley Cardiovascular Assoc., P.C., 91 A.D.3d 691, 936 N.Y.S.2d 304 [2d Dept 2012]; Geffner v North Shore Univ. Hosp., 57 A.D.3d 839, 871 N.Y.S.2d 617 [2d Dept 2008]).

  10. Dejesus v. Our Lady of Consolation Geriatric Care Ctr.

    2020 N.Y. Slip Op. 32882 (N.Y. Sup. Ct. 2020)

    Queens, 96 AD3d 901, 947 NYS2d 148 [2d Dept 2012]; Savage v Quinn, 91 AD3d 748, 937 NYS2d 265 [2d Dept 2012]; Stukas v Streiter, 83 AD3d 18, 918 NYS2d 176 [2d Dept 2011]). General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a medical provider's summary judgment motion (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Garbowski v Hudson Val. Hosp. Ctr., 85 AD3d 724, 924 NYS2d [2d Dept 2011]). Further, an expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable (see e.g. Brady v Westchester County Healthcare Corp., 78 AD3d 1097, 912 NYS2d 104 [2d Dept 2010]; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 871 NYS2d 617 [2d Dept 2008]; Mustello v Berg, 44 AD3d 1018, 845 NYS2d 86 [2d Dept 2007]).