Opinion
854 Index No. 805038/16 Case No. 2022-04998
10-19-2023
Karen L. MURPHY etc., et al., Plaintiffs-Appellants, v. CHINATOWN CARDIOLOGY, P.C., et al., Defendants-Respondents.
Hogan & Cassell, LLP, Jericho (Michael Cassell of counsel), for appellants. Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Deirdre E. Tracey of counsel), for respondents.
Hogan & Cassell, LLP, Jericho (Michael Cassell of counsel), for appellants.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Deirdre E. Tracey of counsel), for respondents.
Kapnick, J.P., Singh, Friedman, Gonza´lez, Shulman, JJ.
Order, Supreme Court, New York County (Judith McMahon, J.), entered October 21, 2022, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the causes of action for medical malpractice, loss of consortium, and wrongful death, unanimously modified, on the law, to reinstate the causes of action for medical malpractice and loss of consortium, and otherwise affirmed, without costs.
Plaintiffs allege that on March 27, 2014, defendants perforated decedent's artery during a peripheral arterial procedure, which led to decedent suffering from a cardiac arrest, seizure, and stroke during a subsequent corrective procedure at The Valley Hospital the following day. After plaintiffs sued, decedent died from Covid–19 on April 24, 2021. Defendants’ expert concedes that defendants inadvertently passed a wire through decedent's renal artery and punctured the kidney. The parties’ experts disagree as to whether perforation of the renal artery represents a departure from the standard of care.
"In a medical malpractice action, the plaintiff must show that the defendant ‘deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff's injury’ "( Mazella v. Beals, 27 N.Y.3d 694, 705, 37 N.Y.S.3d 46, 57 N.E.3d 1083 [2016], quoting James v. Wormuth, 21 N.Y.3d 540, 545, 974 N.Y.S.2d 308, 997 N.E.2d 133 [2013] ). Accordingly, to meet its burden on summary judgment, a defendant must establish the absence of a departure "from good and accepted medical practice" or that "any such departure was not a proximate cause of the plaintiff's alleged injuries" ( Anyie B. v. Bronx Lebanon Hosp., 128 A.D.3d 1, 3, 5 N.Y.S.3d 92 [1st Dept. 2015] ). "Generally, ‘the opinion of a qualified expert that a plaintiff's injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants’ " ( id. , quoting Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002] ).
Supreme Court held that defendants established their prima facie entitlement to summary judgment through their expert's opinion that perforation is a known and accepted risk of the procedure, which does not indicate negligence on the part of defendants (see Greenspan v. Stand–Up MRI of Manhattan, P.C., 206 A.D.3d 588, 589, 171 N.Y.S.3d 489 [1st Dept. 2022] ). In opposition, plaintiffs’ expert disputed this assertion, opining that perforation of the renal artery should not have occurred during a procedure to clear arterial blockages in decedent's legs. Neither party challenges the qualifications of either expert. Thus, plaintiffs raised an issue of fact as to whether defendants met the standard of care (see Ayers v. Mohan, 182 A.D.3d 479, 480, 122 N.Y.S.3d 298 [1st Dept. 2020] ; Anyie B., 128 A.D.3d at 4–7, 5 N.Y.S.3d 92 ).
Defendants failed to meet their prima facie burden as to causation of decedent's non-Covid injuries. Although defendants’ expert opined that the cause of decedent's injuries was negligent delay by The Valley Hospital, any such delay "does not absolve defendant[s] from liability because there may be more than one proximate cause of an injury" ( Mazella, 27 N.Y.3d at 706, 37 N.Y.S.3d 46, 57 N.E.3d 1083 [quotation marks]). Malpractice in treating an injury is a foreseeable consequence of that injury, which does not supersede the causal role of the initial tort (see Mazella, 27 N.Y.3d at 708, 37 N.Y.S.3d 46, 57 N.E.3d 1083 ; Datiz v. Shoob, 71 N.Y.2d 867, 869, 527 N.Y.S.2d 749, 522 N.E.2d 1047 [1988] ; Greenspan, 206 A.D.3d at 590, 171 N.Y.S.3d 489 ). Therefore, regarding these injuries, defendants’ expert "never actually opined that [decedent's] claimed injuries were not causally related to defendants’ alleged malpractice" ( Hoffman v. Taubel, 208 A.D.3d 1099, 1100, 176 N.Y.S.3d 15 [1st Dept. 2022] ).
Plaintiffs’ expert, however, failed to rebut defendants’ arguments for dismissal of the wrongful death cause of action. Based on hospital records, defendants’ expert identified numerous risk factors that likely contributed to decedent's death from Covid–19, all of them unrelated to perforation of the decedent's renal artery. In opposition, plaintiffs offer mere speculation that decedent's neurological injuries may have increased his vulnerability to respiratory diseases. Such speculation is insufficient to raise an issue of fact (see Flores v. New York City Health & Hosps. Corp., 204 A.D.3d 513, 514, 167 N.Y.S.3d 72 [1st Dept. 2022] ; Shahid v. New York City Health & Hosps. Corp., 47 A.D.3d 800, 802, 850 N.Y.S.2d 519 [2d Dept. 2008] ).