Opinion
2013-04-2
Alan SASSEN, Plaintiff–Appellant, v. Dr. Jeffrey LAZAR, et al., Defendants–Respondents, St. Vincent's Hospital, et al., Defendants.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Gordon & Silber, P.C., New York (Andrew B. Kaufman of counsel), for Dr. Jeffrey Lazar, respondent.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Gordon & Silber, P.C., New York (Andrew B. Kaufman of counsel), for Dr. Jeffrey Lazar, respondent.
McAloon & Friedman, P.C., New York (Gina Bernardi Di Folco of counsel), for Dr. Christina Drafta, respondent.
MAZZARELLI, J.P., MOSKOWITZ, DeGRASSE, FEINMAN, CLARK, JJ.
Orders, Supreme Court, New York County (Alice Schlesinger, J.), entered April 24, 2012, which, in this medical malpractice action, granted defendants-respondents' motions' for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff initially claimed that defendants failed, on December 11 and 12, 2007, to diagnose a stroke that occurred on December 27, 2007. Plaintiff, on appeal, claims a failure to diagnose and detect a cardiac thrombus (blood clot) in plaintiff's artificial heart valve.
Defendants made a prima facie showing of their entitlement to judgment as a matter of law, since their experts' affirmed reports established that they did not deviate from accepted standards of medical practice ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). The expert on behalf of defendant Dr. Jeffrey Lazar, the emergency room physician at St. Vincent's Hospital, reached this conclusion since, on December 11, 2007, Dr. Lazar treated plaintiff, ordered appropriate tests, and discharged him with instructions to see his internist and a neurologist ( see Cupelli v. Lawrence Hosp., 71 A.D.3d 496, 496–497, 895 N.Y.S.2d 818 [1st Dept. 2010], lv. denied16 N.Y.3d 703, 2011 WL 446291 [2011] ). In addition, Dr. Lazar's expert opined that since the stroke plaintiff ultimately suffered on December 27 would not have been detected in a typical 24– to 72–hour hospital stay, any departure was not proximately related to the injuries he eventually suffered. Defendant Dr. Christina Drafta's expert opined that, since her neurological examination of plaintiff was normal, and since plaintiff was under the care of an internist, Dr. Drafta, as a neurologist, would not be responsible for any care or treatment of plaintiff's heart or blood pressure condition ( see Witt v. Agin, 112 A.D.2d 64, 66, 490 N.Y.S.2d 778 [1st Dept. 1985], affd. 67 N.Y.2d 919, 501 N.Y.S.2d 816, 492 N.E.2d 1231 [1986] ). Both experts further found that defendants' decision not to admit plaintiff to the hospital after they saw him on December 11 and 12, respectively, was not a departure from accepted standards of care.
In opposition, plaintiff failed to show, by expert medical evidence, a departure from the accepted standard of medical practice, and that this departure was a proximate cause of his injuries ( see Alvarez, 68 N.Y.2d at 324–325, 508 N.Y.S.2d 923, 501 N.E.2d 572;Rivera v. Greenstein, 79 A.D.3d 564, 568, 914 N.Y.S.2d 94 [1st Dept. 2010] ). Plaintiff's argument that defendants failed to diagnose and detect a blood clot (thrombus) on his artificial heart valve, which led to his stroke 17 days later, is not properly before this Court as it was advanced for the first time on appeal ( see On the Level Enterprises, Inc. v. 49 East Houston LLC, 100 A.D.3d 473, 954 N.Y.S.2d 35 [1st Dept. 2012] ). Plaintiff's argument that we may review the issue as it is a legal one, clear from the face of the record, is unavailing. The facts necessary to support plaintiff's position, namely that a cardiac thrombus existed in plaintiff's artificial heart valve, are not part of the record, and defendants and their medical experts had no opportunity to respond to plaintiff's claim ( compare DeRosa v. Chase Manhattan Mtge. Corp., 10 A.D.3d 317, 319–320, 782 N.Y.S.2d 5 [1st Dept. 2004], with Chateau D'If Corp. v. City of New York, 219 A.D.2d 205, 209, 641 N.Y.S.2d 252 [1st Dept. 1996], lv. denied88 N.Y.2d 811, 649 N.Y.S.2d 379, 672 N.E.2d 605 [1996] ). In any event, plaintiff's theory is without expert or record support, since heart studies performed at Columbia Presbyterian Hospital revealed no blood clots on plaintiff's artificial heartvalve ( see Roques v. Noble, 73 A.D.3d 204, 207, 899 N.Y.S.2d 193 [1st Dept. 2010];Richardson v. New York City Health & Hosps. Corp., 191 A.D.2d 376, 377, 595 N.Y.S.2d 419 [1st Dept. 1993] ).