Opinion
2015-00776. Index No. 9382/12.
08-09-2017
Lobzhanidze ALIOSHA, appellant, v. Abraham OSTAD, respondent.
Law Offices of Marius C. Wesser, P.C., New York, NY, for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Allison R. Graffeo of counsel), for respondent.
Law Offices of Marius C. Wesser, P.C., New York, NY, for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Allison R. Graffeo of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, and VALERIE BRATHWAITE NELSON, JJ.
In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated October 2, 2014, as granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging medical malpractice.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff underwent a hydrocelectomy, a surgical procedure to remove fluid that had formed around his right testicle. The surgery was performed by the defendant. After surgery, the plaintiff complained of pain in the scrotal area, and he eventually lost the functionality of his right testicle. The plaintiff commenced this action to recover damages for, inter alia, medical malpractice, alleging that the demise of his right testicle was due to, among other things, the defendant's failure to perform an orchiopexy (tacking of the testicle) during the hydrocelectomy, which led to testicular torsion and devascularization of the right testicle. The defendant moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion. On appeal, the plaintiff contends that the court should have denied that branch of the motion which was for summary judgment dismissing the medical malpractice cause of action.
"In order to 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 DiLorenzo v. Zaso, 148 A.D.3d 1111, 1112, 50 N.Y.S.3d 503 ; Feuer v. Ng, 136 A.D.3d 704, 706, 24 N.Y.S.3d 198 ). A defendant seeking summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries (see Hernandez v. Nwaishienyi, 148 A.D.3d 684, 686, 48 N.Y.S.3d 467 ; Feuer v. Ng, 136 A.D.3d at 706, 24 N.Y.S.3d 198; Stukas v. Streiter, 83 A.D.3d at 24, 918 N.Y.S.2d 176 ). In response, it is the plaintiff's burden to raise a triable issue of fact "regarding the element or elements on which the defendant has made its prima facie showing" (Feuer v. Ng, 136 A.D.3d at 706, 24 N.Y.S.3d 198 [internal quotation marks omitted]; see Stukas v. Streiter, 83 A.D.3d at 24, 918 N.Y.S.2d 176 ). To do so, a plaintiff "must submit evidentiary facts or materials to rebut the defendant's prima facie showing" ( Stukas v. Streiter, 83 A.D.3d at 24, 918 N.Y.S.2d 176 [internal quotation marks omitted] ) beyond mere "[g]eneral and conclusory allegations of medical malpractice" ( DiLorenzo v. Zaso, 148 A.D.3d at 1112, 50 N.Y.S.3d 503 [internal quotation marks omitted]; see Brinkley v. Nassau Health Care Corp., 120 A.D.3d 1287, 1290, 993 N.Y.S.2d 73 ; Roca v. Perel, 51 A.D.3d 757, 759, 859 N.Y.S.2d 203 ).
Here, based on the plaintiff's medical records, the defendant's expert, a board-certified urologist, opined, within a reasonable degree of medical certainty, that the plaintiff did not experience testicular torsion. The opinion of the defendant's expert was based upon review of ultrasound images that revealed good blood flow to the right testicle, meaning that the plaintiff did not experience testicular torsion, as blood flow could not be restored after torsion. As such, the defendant demonstrated, prima facie, that any departure from the applicable standards of care as alleged by the plaintiff did not proximately cause the plaintiff's alleged injuries (see DiLorenzo v. Zaso, 148 A.D.3d at 1113, 50 N.Y.S.3d 503 ; Metcalf v. O'Halleran, 137 A.D.3d 758, 759, 25 N.Y.S.3d 679 ; Shashi v. South Nassau Communities Hosp., 104 A.D.3d 838, 838, 961 N.Y.S.2d 307 ).
In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff's unnamed expert was conclusory and speculative, and failed to address specific assertions made by the defendant's expert, especially those pertaining to proximate causation (see Hernandez v. Nwaishienyi, 148 A.D.3d at 686, 48 N.Y.S.3d 467; Feuer v. Ng, 136 A.D.3d at 707, 24 N.Y.S.3d 198; Brinkley v. Nassau Health Care Corp., 120 A.D.3d at 1290, 993 N.Y.S.2d 73 ). In attempting to refute the opinion of the defendant's expert regarding good blood flow to the right testicle, the plaintiff's expert did not actually review the ultrasound images on which the defendant's expert opinion was based, but reviewed only the ultrasound report (see DiGeronimo v. Fuchs, 101 A.D.3d 933, 936, 957 N.Y.S.2d 167 ). Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the medical malpractice cause of action.