Opinion
40 CA 19–00675
03-13-2020
Lauren D. DZIWULSKI, Plaintiff–Respondent, v. Lisa TOLLINI–REICHERT, M.D., Defendant–Appellant, et al., Defendants.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (KARA M. EYRE OF COUNSEL), FOR DEFENDANT–APPELLANT. BROWN CHIARI LLP, BUFFALO (MICHAEL R. DRUMM OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (KARA M. EYRE OF COUNSEL), FOR DEFENDANT–APPELLANT.
BROWN CHIARI LLP, BUFFALO (MICHAEL R. DRUMM OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: CARNI, J.P., CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the complaint is dismissed against defendant Lisa Tollini–Reichert, M.D.
Memorandum: Plaintiff commenced this medical malpractice action alleging, inter alia, that Lisa Tollini–Reichert, M.D. (defendant) was negligent in the care and treatment that she rendered to plaintiff and that, as a result of the negligence, plaintiff suffered serious and permanent injuries, including cardiopulmonary failure, congestive heart failure, and viral myocarditis. Defendant appeals from an order denying her motion for summary judgment dismissing the complaint against her.
We agree with defendant that Supreme Court erred in denying her motion inasmuch as she met her initial burden of establishing the absence of any departure from good and accepted medical practice and that any departure was not the proximate cause of plaintiff's injuries (see Bubar v. Brodman, 177 A.D.3d 1358, 1359, 111 N.Y.S.3d 483 [4th Dept. 2019] ; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). The medical expert's affidavit submitted by defendant in support of her motion was "detailed, specific and factual in nature" ( Toomey v. Adirondack Surgical Assoc., 280 A.D.2d 754, 755, 720 N.Y.S.2d 229 [3d Dept. 2001] ) and " ‘address[ed] each of the specific factual claims of negligence raised in [the] plaintiff's bill of particulars’ " ( Webb v. Scanlon, 133 A.D.3d 1385, 1386, 20 N.Y.S.3d 830 [4th Dept. 2015] ; see Bubar, 177 A.D.3d at 1360–1361, 111 N.Y.S.3d 483 ). Specifically, we agree with defendant that the court erred in concluding that defendant's medical expert did not address plaintiff's allegation that defendant failed to admit plaintiff to a hospital. Defendant's medical expert opined that, "[g]iven [plaintiff's] history and presentation, there were no further tests, consultations, or treatment that [defendant] should have, but failed to, recommend." In our view, the medical expert's opinion that no further tests, consultations, or treatment were indicated necessarily means that transfer to a hospital was not indicated.
The affidavit of plaintiff's medical expert failed to raise a triable issue of fact in opposition inasmuch as the affidavit itself lacked a proper foundation for consideration (see Luu v. Paskowski, 57 A.D.3d 856, 858, 871 N.Y.S.2d 227 [2d Dept. 2008] ; Wilson v. Buffa, 294 A.D.2d 357, 358, 741 N.Y.S.2d 713 [2d Dept. 2002], lv denied 98 N.Y.2d 611, 749 N.Y.S.2d 3, 778 N.E.2d 554 [2002] ; see also Keller v. Liberatore, 134 A.D.3d 1495, 1496, 23 N.Y.S.3d 773 [4th Dept. 2015] ). Notably, plaintiff's expert failed to state whether he or she reviewed the bill of particulars, the deposition testimony, or the affidavit of defendant's medical expert. We therefore reverse the order, grant the motion, and dismiss plaintiff's complaint against defendant.