Opinion
2017–07383 Index 12949/10 12949/10
05-06-2020
Randall JOYNER, et al., Respondents, v. MIDDLETOWN MEDICAL, P.C., et al., Appellants.
Feldman, Kleidman, Coffey, Sappe & Regenbaum LLP, Fishkill, N.Y. (Marsha Solomon Weiss of counsel), for appellants.
Feldman, Kleidman, Coffey, Sappe & Regenbaum LLP, Fishkill, N.Y. (Marsha Solomon Weiss of counsel), for appellants.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
On June 3, 2008, the plaintiff Randall Joyner (hereinafter the plaintiff) presented to the urgent care clinic at the defendant Middletown Medical, P.C., with complaints of left leg pain. The plaintiff was seen by the defendant Chethan Byadgi, who ordered a Venous Doppler study to rule out deep vein thrombosis. When the study came back negative, Byadgi prescribed painkillers and referred the plaintiff to an orthopedic surgeon. Subsequently, an angiogram conducted on June 20, 2008, revealed that the plaintiff had complete occlusions of the left superficial and deep femoral arteries. On June 26, 2008, the plaintiff underwent surgery to relieve the arterial insufficiency. Following the procedure, the plaintiff developed blistering on his foot, dusky toes, and the loss of capillary refill. On July 18, 2008, the plaintiff underwent a below-the-knee amputation of his left leg, secondary to a gangrenous left foot and multiple thromboembolic arterial occlusions.
The plaintiff, and his wife suing derivatively, commenced this action against Byadgi, Middletown Medical, P.C. (hereinafter together the defendants), and others, to recover damages for medical malpractice, etc., alleging that Byadgi's failure to timely diagnose and treat the plaintiff's condition caused the loss of the plaintiff's leg. After the completion of discovery, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order dated May 25, 2017, the Supreme Court, among other things, denied that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging medical malpractice as to treatment provided on June 3, 2008, insofar as asserted against them. The defendants appeal.
" ‘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’ " ( M.C. v. Huntington Hosp., 175 A.D.3d 578, 579, 106 N.Y.S.3d 382, quoting Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ; see Simpson v. Edghill, 169 A.D.3d 737, 738, 93 N.Y.S.3d 399 ). "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" ( M.C. v. Huntington Hosp., 175 A.D.3d at 579, 106 N.Y.S.3d 382 ). "Where the defendant has satisfied that burden, a plaintiff must ‘submit evidentiary facts or materials to rebut the defendant's prima facie showing’ " ( id., quoting Stukas v. Streiter, 83 A.D.3d at 30, 918 N.Y.S.2d 176 ). " ‘Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause’ " ( M.C. v. Huntington Hosp., 175 A.D.3d at 579, 106 N.Y.S.3d 382, quoting Novick v. South Nassau Communities Hosp., 136 A.D.3d 999, 1000, 26 N.Y.S.3d 182 [internal quotation marks omitted] ). "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" ( Feinberg v. Feit, 23 A.D.3d 517, 519, 806 N.Y.S.2d 661 ).
Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action pertaining to the plaintiff's treatment on June 3, 2008, insofar as asserted against them, by submitting two detailed expert affirmations which demonstrated that Byadgi's treatment was not the proximate cause of the plaintiff's injuries (see M.C. v. Huntington Hosp., 175 A.D.3d at 580, 106 N.Y.S.3d 382 ; Simpson v. Edghill, 169 A.D.3d at 738, 93 N.Y.S.3d 399 ). In opposition, however, the plaintiffs raised triable issues of fact by submitting the affidavit of a medical expert who concluded that Byadgi's failure to order appropriate arterial testing, or to refer the plaintiff on a stat basis to an emergency room or a vascular surgeon, was a proximate cause contributing to the plaintiff's subsequent need for an amputation (see M.C. v. Huntington Hosp., 175 A.D.3d at 581, 106 N.Y.S.3d 382 ). Contrary to the defendants' contention, the affidavit of the plaintiffs' expert and accompanying addendum were neither conclusory nor speculative (cf. Tsitrin v. New York Community Hosp., 154 A.D.3d 994, 996, 62 N.Y.S.3d 506 ).
Accordingly, we agree with the Supreme Court's determination denying that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging medical malpractice as to treatment provided on June 3, 2008, insofar as asserted against them.
MASTRO, J.P., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.