Opinion
Nos. 2413 2414 Index No. 32953/18 Case Nos. 2023-04228 2023-04229
05-30-2024
Maria Torres, Plaintiff-Respondent, v. Brian K. Levy, D.P.M., et al., Defendants, Daniel Basalely, D.P.M., Defendant-Appellant. Maria Torres, Plaintiff-Respondent, v. Brian K. Levy, D.P.M., et al., Defendants, Amit Kalra, D.P.M., Defendant-Appellant.
Bond, Schoeneck & King PLLC, Garden City (Justin C. Tan of counsel), for appellants. Harris, Keenan & Goldfarb PLLC, New York (Dmitriy Nam of counsel), for respondent.
Bond, Schoeneck & King PLLC, Garden City (Justin C. Tan of counsel), for appellants.
Harris, Keenan & Goldfarb PLLC, New York (Dmitriy Nam of counsel), for respondent.
Before: Moulton, J.P., Scarpulla, Higgitt, O'Neill Levy, JJ.
Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about July 20, 2023, which, insofar as appealed from, denied Dr. Amit Kalra's motion for summary judgment dismissing plaintiff's claim of medical malpractice as against him, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against Dr. Kalra. Order, same court and Justice, entered on or about July 20, 2023, which, insofar as appealed from, denied Dr. Daniel Basalely's motion for summary judgment dismissing plaintiff's claim of medical malpractice as against him, unanimously reversed, on the law, without costs and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against Dr. Basalely.
Plaintiff alleged that Dr. Basalely failed to diagnose plaintiff with reflex symptomatic dystrophy (RSD) about three weeks after plaintiff's surgery on her right foot performed by defendant Dr. Brian Levy on June 7, 2016. Plaintiff had followed up with Dr. Levy twice complaining of post operative pain prior to his first visit with Dr. Basalely. After plaintiff's first visit with Dr. Basalely, she followed up with Dr. Levy on four different occasions, including December 30, 2016. Plaintiff also alleged that defendant Dr. Karla failed to diagnose plaintiff with RSD, when plaintiff appeared with complaints of pain and swelling, on February 14, 2017.
Contrary to plaintiff's contention, both Dr. Basalely and Dr. Kalra's expert, Edwin W. Wolf, D.P.M., M.S., sufficiently stated the applicable standard of care in establishing, prima facie, that Dr. Basalely and Dr. Kalra did not depart from the standard of care, and that any alleged departure was not a proximate cause of plaintiff's claimed injuries (see Anyie B. v Bronx Lebanon Hosp., 128 A.D.3d 1, 3 [1st Dept 2015]).
In opposition, plaintiff submitted the redacted affirmation of a licensed podiatrist, which was conclusory and thus insufficient to create an issue of fact (see Diaz v New York Downtown Hosp., 99 N.Y.2d 542, 544 [2002]). In opining that Dr. Basalely and Dr. Kalra departed from accepted practice, plaintiff's expert merely asserted that they failed to diagnose plaintiff's RSD without detailing how they deviated from accepted practice in treating plaintiff or referring to any clinical findings that should have alerted Basalely or Dr. Karla that plaintiff might suffer from RSD (se e Gaudio v Gonzalez, 117 A.D.3d 490 [1st Dept 2014]).
Even if Dr. Basalely and Dr. Kalra had deviated from the standard of care in failing to timely diagnose plaintiff with RSD, plaintiff's expert's opinion was conclusory as to whether this departure was a proximate cause of plaintiff's injuries. Specifically, plaintiff's expert failed to articulate what additional injuries were caused by the delay in diagnosis, or how an earlier diagnosis would have prevented or lessened plaintiff's injuries (see Rebozo v Wilen, 41 A.D.3d 457, 459 [2d Dept 2007]).