Opinion
621 CA 20-00852
11-19-2021
Karen S. SIMKO and Thomas Simko, Plaintiffs-Appellants, v. ROCHESTER GENERAL HOSPITAL, Rochester Regional Health and University of Rochester, Defendants-Respondents.
DOMINIC PELLEGRINO, ROCHESTER, FOR PLAINTIFFS-APPELLANTS. HARRIS BEACH PLLC, PITTSFORD (SVETLANA K. IVY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS ROCHESTER GENERAL HOSPITAL AND ROCHESTER REGIONAL HEALTH. MARTIN, CLEARWATER & BELL LLP, NEW YORK CITY (BARBARA D. GOLDBERG OF COUNSEL), FOR DEFENDANT-RESPONDENT UNIVERSITY OF ROCHESTER.
DOMINIC PELLEGRINO, ROCHESTER, FOR PLAINTIFFS-APPELLANTS.
HARRIS BEACH PLLC, PITTSFORD (SVETLANA K. IVY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS ROCHESTER GENERAL HOSPITAL AND ROCHESTER
REGIONAL HEALTH.
MARTIN, CLEARWATER & BELL LLP, NEW YORK CITY (BARBARA D. GOLDBERG OF COUNSEL), FOR DEFENDANT-RESPONDENT UNIVERSITY OF ROCHESTER.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is affirmed without costs.
Memorandum: Plaintiffs commenced this medical malpractice action after Karen S. Simko (plaintiff) was afflicted with Guillain-Barré Syndrome (GBS), claiming that defendants failed to timely diagnose and treat the condition. Plaintiffs appeal from an order that granted the motion of defendant University of Rochester insofar as it sought summary judgment dismissing the complaint against it and granted the motion of defendants Rochester General Hospital and Rochester Regional Health for summary judgment dismissing the complaint against them. We reject plaintiffs’ contention that Supreme Court erred in granting the motions, and we therefore affirm.
In moving for summary judgment in a medical malpractice action, a defendant has "the initial burden of establishing either that there was no deviation or departure from the applicable standard of care or that any alleged departure did not proximately cause the plaintiff's injuries" ( Occhino v. Fan , 151 A.D.3d 1870, 1871, 57 N.Y.S.3d 325 [4th Dept. 2017] [internal quotation marks omitted]; see Isensee v. Upstate Orthopedics, LLP , 174 A.D.3d 1520, 1521, 103 N.Y.S.3d 342 [4th Dept. 2019] ). We conclude that defendants met their initial burden on their respective motions with respect to both issues and, thus, "the burden shifted to plaintiffs to raise triable issues of fact by submitting an expert's affidavit both attesting to a departure from the accepted standard of care and that defendants’ departure from that standard of care was a proximate cause of the injur[ies]" ( Isensee , 174 A.D.3d at 1522, 103 N.Y.S.3d 342 ; see Bubar v. Brodman , 177 A.D.3d 1358, 1359, 111 N.Y.S.3d 483 [4th Dept. 2019] ). Even assuming, arguendo, that plaintiffs raised triable issues of fact with respect to whether defendants deviated from the accepted standard of care, we conclude that the opinion of plaintiffs’ expert neurologist with respect to the issue of proximate cause was insufficient to defeat defendants’ motions for summary judgment (see Diaz v. New York Downtown Hosp. , 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002] ; Occhino , 151 A.D.3d at 1871, 57 N.Y.S.3d 325 ). Plaintiffs’ expert acknowledged that, to be effective, intravenous immunoglobulin therapy must be commenced within a certain time of the onset of GBS symptoms, and it is undisputed that, in this case, the therapy was commenced within that time.
Like the dissent, we acknowledge that plaintiffs’ theory of causation is predicated on the allegation that defendants’ failure or delay in diagnosing plaintiff's GBS "diminished [her] chance of a better outcome" ( Clune v. Moore , 142 A.D.3d 1330, 1331, 38 N.Y.S.3d 852 [4th Dept. 2016] ). Nothing in our decision herein calls into question the viability of such a theory. The Court of Appeals, however, has instructed that when an expert "states his [or her] conclusion unencumbered by any trace of facts or data, [the] testimony should be given no probative force whatsoever" ( Romano v. Stanley , 90 N.Y.2d 444, 451, 661 N.Y.S.2d 589, 684 N.E.2d 19 [1997] [internal quotation marks omitted]; see Amatulli v. Delhi Constr. Corp. , 77 N.Y.2d 525, 533 n 2, 569 N.Y.S.2d 337, 571 N.E.2d 645 [1991] ), and, in this case, as noted above, the opinion of plaintiffs’ expert that treatment should have been started sooner was contrary to what the expert agreed was appropriate. We therefore conclude that plaintiffs’ expert offered only conclusory and speculative assertions that earlier detection and treatment would have produced a different outcome (see Martingano v. Hall , 188 A.D.3d 1638, 1640, 135 N.Y.S.3d 719 [4th Dept. 2020], lv denied 36 N.Y.3d 912, 2021 WL 1741737 [2021] ), and assertions that are "vague, conclusory, speculative, and unsupported by the medical evidence in the record" are insufficient to raise a triable issue of fact ( Occhino , 151 A.D.3d at 1871, 57 N.Y.S.3d 325 [internal quotation marks omitted]; see Jackson v. Montefiore Med. Center/The Jack D. Weiler Hosp. of the Albert Einstein Coll. of Medicine , 146 A.D.3d 572, 572, 45 N.Y.S.3d 422 [1st Dept. 2017] ; Longtemps v. Oliva , 110 A.D.3d 1316, 1319, 973 N.Y.S.2d 452 [3d Dept. 2013] ; Bullard v. St. Barnabas Hosp. , 27 A.D.3d 206, 206, 810 N.Y.S.2d 78 [1st Dept. 2006] ).
All concur except Curran, J., who dissents and votes to reverse in accordance with the following memorandum:
I respectfully dissent and would reverse the order and deny defendants’ motions for summary judgment dismissing the complaint against them. Although I agree with the majority's tacit conclusion that plaintiffs’ submissions, particularly the detailed 44-page affirmation of their expert neurologist, raised triable questions of fact with respect to defendants’ deviation from the good and accepted standard of care (see generally Fargnoli v. Warfel , 186 A.D.3d 1004, 1005, 129 N.Y.S.3d 223 [4th Dept. 2020] ), I disagree with the majority's express conclusion that the expert neurologist's affirmation did not raise a question of fact with respect to proximate cause.
As acknowledged by the majority, this appeal implicates the "loss of chance" theory of proximate causation that applies in delayed-diagnosis medical malpractice actions where the allegations are predicated on an "omission" theory of negligence ( Wild v. Catholic Health Sys. , 85 A.D.3d 1715, 1717, 927 N.Y.S.2d 250 [4th Dept. 2011], affd 21 N.Y.3d 951, 969 N.Y.S.2d 846, 991 N.E.2d 704 [2013] ; see Stradtman v. Cavaretta [appeal No. 2], 179 A.D.3d 1468, 1471, 118 N.Y.S.3d 828 [4th Dept. 2020] ; Clune v. Moore , 142 A.D.3d 1330, 1331-1332, 38 N.Y.S.3d 852 [4th Dept. 2016] ; Wolf v. Persaud , 130 A.D.3d 1523, 1525, 14 N.Y.S.3d 601 [4th Dept. 2015] ; Gregory v. Cortland Mem. Hosp. , 21 A.D.3d 1305, 1306, 802 N.Y.S.2d 579 [4th Dept. 2005] ; Cannizzo v. Wijeyasekaran , 259 A.D.2d 960, 961, 689 N.Y.S.2d 315 [4th Dept. 1999] ; see generally 1B NY PJI3d 2:150 at 47, 82-86 [2021]). In such cases, proximate cause is not analyzed under the ordinary "substantial factor" approach ( PJI 2:70 ), but rather according to whether the alleged delay in diagnosis diminished the plaintiff's "chance of a better outcome or increased the injury" ( Wolf , 130 A.D.3d at 1525, 14 N.Y.S.3d 601 ). Although I have expressed concern "that a loss of chance concept reduces a plaintiff's burden of proof on the element of proximate cause" ( Humbolt v. Parmeter , 196 A.D.3d 1185, 1194, 151 N.Y.S.3d 788 [4th Dept. 2021, Curran, J., dissenting] ), the majority and I agree that this Court has nonetheless adopted that causation standard in this type of medical malpractice action.
The majority makes no attempt to distinguish the expert opinion presented here from similar expert opinions on causation we previously reviewed and found sufficient. Plaintiffs correctly observe that their expert's analysis of the issue of causation is very similar to the opinion offered by the plaintiff's expert in Clune , in which we concluded that the defendants were not entitled to judgment as a matter of law pursuant to CPLR 4401 inasmuch as the plaintiff presented legally sufficient evidence on the issue of causation (see 142 A.D.3d at 1331-1332, 38 N.Y.S.3d 852 ). In my view, the facts supporting plaintiffs’ theory of causation, as articulated by their expert, are largely indistinguishable from the expert testimony in Clune . There, the plaintiff's decedent allegedly suffered a bowel perforation during a colonoscopy, which resulted in peritonitis that ultimately caused his death (see Clune v. Moore , 45 Misc. 3d 427, 428-430, 991 N.Y.S.2d 307 [Sup. Ct., Erie County 2014] ). The plaintiff's expert testified with respect to causation that the decedent's chance of "survival would [have] increase[d] ‘the earlier in time or the closer in time that you catch a [medical problem] and are able to treat a [medical problem]’ " ( Humbolt , 196 A.D.3d at 1193, 151 N.Y.S.3d 788 [Curran, J., dissenting]). In other words, had the bowel perforation been diagnosed sooner, the outcome would have been better for the decedent. In Clune , therefore, the defendants’ delay in diagnosing the bowel perforation was the deviation that provided the causative effect resulting in death—i.e., the diminished opportunity for a better outcome for the decedent.
Here, although defendants commenced administering intravenous immunoglobulin therapy to Karen S. Simko (plaintiff) within the time frame by which the standard of care for Guillain-Barré Syndrome (GBS) is measured, that does not change the fact that plaintiffs’ expert opined that defendants’ delay in diagnosing plaintiff with GBS nonetheless deprived her of "a substantial possibility she would have had less injury to her nervous system and less complication[s] cause[d] thereby, recovered quicker, and had less permanent deficits" due to GBS. The expert also stated that, had the intravenous immunoglobulin therapy been administered earlier, "the neutralization of the attack antibodies would have begun immediately ... and cessation of nerve damage would have begun" and that "[o]nce you stop the damage to the nerves you stop the sensory and motor loss at that point." Thus, even though defendants began therapy to treat plaintiff's GBS in time to be effective, plaintiffs’ expert still raised an issue of fact whether defendants’ failure to diagnose the GBS sooner diminished plaintiff's chance of a better outcome or increased the injuries she ultimately sustained. Ultimately, in light of the foregoing, "[w]hether a diagnostic delay affected [plaintiff's] prognosis is ... an issue that should be presented to a jury" ( Wiater v. Lewis , 197 A.D.3d 782, 784, 153 N.Y.S.3d 176 [2d Dept. 2021] ).