Opinion
No. 4426.
March 3, 2011.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered August 17, 2009, which, in an action for medical malpractice arising out of defendants' alleged failure to properly diagnose and treat plaintiffs decedent's lung cancer, granted defendants' motions and cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph III of counsel), for appellants.
Shaub, Ahmuty, Citrin Spratt, LLP, Lake Success (Christopher Simone of counsel), for Samwel Oyugi, M.D., Staten Island Hospitalists, P.C. and Staten Island University Hospital, respondents.
Amabile Erman, P.C., Staten Island (Anthony A. Lenza, Jr. of counsel), for Ralph Ciccone, M.D., Staten Island Pulmonary, Associates, P.C., Thomas Kilkenny, M.D., Jeffrey Tambor, M.D., Premier Medical, PLLC, Kayal Sambandam, M.D., Deepak Vadhan, M.D. and Brook-Island Medical Associates, P.C., respondents.
Kopff, Nardelli Dopf LLP, New York (Catherine R. Richter of counsel), for Raja Flores, M.D., Memorial Hospital for Cancer and Allied Diseases and Memorial Sloan-Kettering Cancer Center, respondents.
Before: Mazzarelli, J.P., Acosta, DeGrasse, Richter and Manzanet-Daniels, JJ.
To sustain a cause of action for medical malpractice, a plaintiff must prove a deviation or departure from accepted practice and that such departure was a proximate cause of plaintiffs injury ( Frye v Montefiore Med. Ctr., 70 AD3d 15, 24). Here, defendants established their entitlement to judgment as a matter of law by submitting evidence, including the decedent's hospital records, the deposition testimony and the affirmations of various medical experts, including a board certified medical oncologist with a thoracic speciality and a thoracic surgeon, demonstrating that they did not deviate from good and accepted medical practice in their diagnosis and treatment of the decedent.
In opposition, plaintiffs failed to raise a triable issue of fact. The expert affirmation relied upon by plaintiffs was insufficient, inasmuch as it failed to address the detailed affirmations of defendants' experts, averred the alleged departures from the standard of care and proximate cause only in conclusory terms, and was at times contradicted by the record ( see Browder v New York City Health Hosps. Corp., 37 AD3d 375). Furthermore, even assuming that there was a delay in diagnosing the decedent's lung cancer, defendants established that such delay was not a proximate cause of injury since the decedent's cancer had already progressed to stage IV cancer with metastasis to the brain by the time he first presented to defendant Staten Island University Hospital in June 2003.
[Prior Case History: 2009 NY Slip Op 31950(U).]