Opinion
15222, 305387/08
05-26-2015
Tamara HOLMES, Plaintiff–Appellant, v. BRONX–LEBANON HOSPITAL CENTER, Defendant–Respondent.
Sanocki Newman & Turret, LLP, New York (David B. Turret of counsel), for appellant. Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for respondent.
Sanocki Newman & Turret, LLP, New York (David B. Turret of counsel), for appellant.
Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, RENWICK, MANZANET–DANIELS, FEINMAN, JJ.
Opinion
Judgment, Supreme Court, Bronx County (Edgar Walker, J.), entered January 14, 2014, dismissing the complaint, unanimously affirmed, without costs.
At trial, plaintiff failed to establish that defendant (Bronx–Lebanon) deviated or departed from accepted practice and that that departure was a proximate cause of her injury (see Foster–Sturrup v. Long, 95 A.D.3d 726, 945 N.Y.S.2d 246 [1st Dept.2012] ). Liability was not established by plaintiff's expert's conclusory assertion that the appropriate diagnostic testing, if performed by Bronx–Lebanon during a January 6, 2008 emergency room visit, would have revealed “inflammation and swelling around the cecum and appendix,” prompted an emergency appendectomy, and obviated the need for plaintiff to undergo more extensive surgery later (see e.g. Rodriguez v. Montefiore Med. Ctr., 28 A.D.3d 357, 357–358, 814 N.Y.S.2d 59 [1st Dept.2006] ). The expert failed to identify the evidentiary basis for his conclusion that diagnostic testing on January 6 would have revealed inflammation. To the contrary, based upon an operative report of the surgery performed at another hospital on January 8, the expert opined that the inflammatory process in plaintiff's abdomen would have existed for, at most, 36 hours before that surgery. That is, the inflammatory process would not have begun until well after plaintiff had been discharged from Bronx–Lebanon. In addition, the expert failed to explain how the failure to perform an appendectomy could have caused or contributed to the cecal perforation with which plaintiff was later diagnosed.
The court's finding on defendant's motion for summary judgment that plaintiff made out her prima facie case does not preclude dismissal of the complaint after the presentation of plaintiff's case at trial (see e.g. Rodriguez v. Ford Motor Co., 106 A.D.3d 525, 965 N.Y.S.2d 451 [1st Dept.2013] ).