Opinion
2013-05-1
Anthony Joseph IULO, etc., appellant, v. STATEN ISLAND UNIVERSITY HOSPITAL, et al., defendants, Warchol, etc., respondent.
Sciretta & Venterina, LLP, Staten Island, N.Y. (Marilyn Venterina of counsel), for appellant. Dopf, P.C., New York, N.Y. (Martin B. Adams and Michael Rosenblum of counsel), for respondent.
Sciretta & Venterina, LLP, Staten Island, N.Y. (Marilyn Venterina of counsel), for appellant. Dopf, P.C., New York, N.Y. (Martin B. Adams and Michael Rosenblum of counsel), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated October 20, 2011, as granted that branch of the motion of the defendant Andrew Warchol, sued herein as “Dr. Warchol, M.D.,” which was for summary judgment dismissing the complaint insofar as asserted against him, and (2) from a judgment of the same court entered December 16, 2011, which, upon the order, in effect, severed the action against the defendant Andrew Warchol, sued herein as “Dr. Warchol, M.D.,” and is in favor of that defendant and against the plaintiff, dismissing the complaint insofar as asserted against that defendant.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed, on the law, that branch of the motion of the defendant Andrew Warchol, sued herein as “Dr. Warchol, M.D.,” which was for summary judgment dismissing the complaint insofar as asserted against him is denied, the complaint insofar as asserted against that defendant is reinstated, and the order is modified accordingly; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from so much of the intermediate order as granted that branch of the motion of the defendant Andrew Warchol, sued herein as “Dr. Warchol, M.D.,” which was for summary judgment dismissing the complaint insofar as asserted against him must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from that portion of the order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501 [a][1] ).
The plaintiff alleged, inter alia, that the defendant Andrew Warchol, sued herein as “Dr. Warchol, M.D.” (hereinafter Warchol), departed from accepted practice by, among other things, failing to order a cardiac catheterization upon receipt of the results of a medical test which indicated, inter alia, that the decedent was suffering from certain cardiac conditions. The plaintiff also alleged that Warchol departed from accepted practice by transmitting two preoperative letters with contradictory recommendations as to whether the decedent should have been administered aspirin preoperatively and perioperatively. The plaintiff further alleged that Warchol's departures were the proximate cause of the decedent's death.
“[T]o establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries” ( Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176;see Gillespie v. New York Hosp. Queens, 96 A.D.3d 901, 902, 947 N.Y.S.2d 148). “[I]n a medical malpractice action ... a defendant physician seeking summary judgment must make a prima facie showing that there was no departure from good and accepted medical practice or that the plaintiff was not injured thereby” ( Stukas v. Streiter, 83 A.D.3d at 24, 918 N.Y.S.2d 176). “ ‘Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers' ” ( Perre v. Vassar Bros. Hosp., 52 A.D.3d 670, 670, 861 N.Y.S.2d 693, quoting Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). Once a defendant has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact ( see Gillespie v. New York Hosp. Queens, 96 A.D.3d at 902, 947 N.Y.S.2d 148;Stukas v. Streiter, 83 A.D.3d at 24, 918 N.Y.S.2d 176). To defeat a defendant's motion for summary judgment, a plaintiff must only rebut the defendant's prima facie showing ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;Stukas v. Streiter, 83 A.D.3d at 30, 918 N.Y.S.2d 176). Summary judgment is not appropriate where the parties adduce conflicting medical expert opinions, as such credibility issues can only be resolved by a jury ( see Hayden v. Gordon, 91 A.D.3d 819, 821, 937 N.Y.S.2d 299;Bengston v. Wang, 41 A.D.3d 625, 626, 839 N.Y.S.2d 159).
Warchol failed to meet his prima facie burden of demonstrating that he did not depart from accepted medical practice by transmitting letters with contradictory recommendations as to whether the decedent should have been administered aspirin preoperatively and perioperatively. He also failed to demonstrate that the contradictory letters did not cause confusion which resulted in injury to the decedent ( see Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829, 414 N.Y.S.2d 117, 386 N.E.2d 1085;Gillespie v. New York Hosp. Queens, 96 A.D.3d at 902, 947 N.Y.S.2d 148;Stukas v. Streiter, 83 A.D.3d at 24, 918 N.Y.S.2d 176;Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 729 N.Y.S.2d 776;Smith v. Palmieri, 103 A.D.2d 739, 740–741, 477 N.Y.S.2d 206). Furthermore, there are triable issues of fact as to whether cardiac catheterization was warranted and would have revealed the presence of an obstruction in the decedent's right coronary artery ( see Hayden v. Gordon, 91 A.D.3d at 821, 937 N.Y.S.2d 299;Stukas v. Streiter, 83 A.D.3d at 30, 918 N.Y.S.2d 176;Bengston v. Wang, 41 A.D.3d at 626, 839 N.Y.S.2d 159). Thus, the Supreme Court should have denied that branch of Warchol's motion which was for summary judgment dismissing the complaint insofar as asserted against him ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;Perre v. Vassar Bros. Hosp., 52 A.D.3d at 670, 861 N.Y.S.2d 693).
In light of our determination, we need not consider the parties' remaining contentions.