Opinion
831 CA 19–00398
01-31-2020
Kermit G. STRADTMAN, Jr., Individually, and as Administrator of the Estate of Kelly L. Stradtman, Deceased, Plaintiff–Appellant, v. Mark CAVARETTA, Joseph A. Caruana, Synergy Bariatrics, P.C., and Joseph A. Caruana, M.D., P.C., Defendants–Respondents. (Appeal No. 2.)
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal from the order insofar as it denied leave to reargue is dismissed, and the order is modified on the law by granting that part of plaintiff's motion seeking leave to renew, and upon renewal, denying defendants' motion for summary judgment and reinstating the complaint, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this medical malpractice action alleging that the negligence of defendants during their treatment of plaintiff's decedent, which included abdominal surgeries performed on July 1 and July 6, 2013, caused decedent to suffer serious injuries and caused her eventual death. In appeal No. 1, plaintiff appeals from an order that granted defendants' motion for summary judgment dismissing the complaint. In appeal No. 2, plaintiff appeals from an order that denied his motion for leave to reargue and renew his opposition to defendants' motion. Insofar as the order in appeal No. 2 denied that part of plaintiff's motion seeking leave to reargue, it is not appealable and we therefore dismiss the appeal to that extent (see Empire Ins. Co. v. Food City, 167 A.D.2d 983, 984, 562 N.Y.S.2d 5 [4th Dept. 1990] ).
With respect to the merits, we conclude that Supreme Court properly determined that defendants met their initial burden on their motion for summary judgment dismissing the complaint and that plaintiff failed to raise an issue of fact with his initial submissions in opposition. Nevertheless, we conclude in appeal No. 2 that the court erred in denying that part of plaintiff's motion seeking leave to renew his opposition to defendants' motion, and upon renewal, we further conclude that the new evidence submitted by plaintiff raised a triable issue of fact. We therefore modify the order in appeal No. 2 by granting that part of plaintiff's motion seeking leave to renew, and upon renewal, denying defendants' motion for summary judgment and reinstating the complaint. In light of that determination, we dismiss appeal No. 1 (see generally Loafin' Tree Rest. v. Pardi [Appeal No. 1], 162 A.D.2d 985, 985, 559 N.Y.S.2d 154 [4th Dept. 1990] ).
On their motion for summary judgment dismissing the complaint, defendants had "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 [decedent'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 the affidavit of defendant Joseph A. Caruana was sufficient to meet that burden inasmuch as it was "detailed, specific, and factual in nature," and it "address[ed] each of the specific factual claims of negligence raised in ... plaintiff's bill of particulars" ( Webb v. Scanlon, 133 A.D.3d 1385, 1386, 20 N.Y.S.3d 830 [4th Dept. 2015] [internal quotation marks omitted]; see Shattuck v. Anain, 174 A.D.3d 1339, 1339, 103 N.Y.S.3d 733 [4th Dept. 2019] ). Contrary to plaintiff's contention, Caruana's affidavit did not contradict his prior deposition testimony. Rather, Caruana's affidavit and deposition were consistent that the surgery performed on July 6, 2013 was intended to address decedent's pneumatosis, ischemia, and other conditions, because the surgery would relieve her underlying bowel obstruction.
Because "defendants met their burden on both compliance with the accepted standard of care and proximate cause, the burden shifted to plaintiff[ ] 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 generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324–325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Here, plaintiff submitted an affirmation of an expert surgeon in opposition to defendants' motion, and the court properly determined that the affirmation of plaintiff's expert was not in admissible form inasmuch as it did not comply with CPLR 2106(a) (see Cleasby v. Acharya, 150 A.D.3d 605, 605, 56 N.Y.S.3d 280 [1st Dept. 2017] ). Specifically, plaintiff's expert "failed to state that he or she [was] licensed to practice medicine in the State of New York" ( Cleasby, 150 A.D.3d at 605, 56 N.Y.S.3d 280 ). Thus, plaintiff failed to "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact" ( Alvarez, 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
Plaintiff, however, cured the technical defect in his expert's affirmation by submitting in support of his motion for leave to renew an affidavit from his expert, which included the statement that the expert was licensed to practice medicine in New York. Plaintiff also provided a reasonable justification for the failure to include that necessary information in the original affirmation (see CPLR 2221[e][3] ; Doe v. North Tonawanda Cent. School Dist., 91 A.D.3d 1283, 1284, 937 N.Y.S.2d 647 [4th Dept. 2012] ). We therefore conclude that the court erred in denying that part of plaintiff's motion seeking leave to renew his opposition to defendants' motion (see Green v. Canada Dry Bottling Co. of N.Y., L.P., 133 A.D.3d 566, 567, 20 N.Y.S.3d 94 [2d Dept. 2015] ; Koufalis v. Logreira, 102 A.D.3d 750, 750, 958 N.Y.S.2d 438 [2d Dept. 2013] ; Arkin v. Resnick, 68 A.D.3d 692, 693–694, 890 N.Y.S.2d 95 [2d Dept. .2009] ).
We further conclude that, upon renewal, the opinions rendered by plaintiff's expert were sufficient to raise triable issues of fact. We agree with plaintiff that the court erred in determining that his expert lacked "the requisite skill, training, education, knowledge or experience from which it can be assumed that [the expert's] opinion rendered ... is reliable" ( Payne v. Buffalo Gen. Hosp., 96 A.D.3d 1628, 1629–1630, 947 N.Y.S.2d 282 [4th Dept. 2012] [internal quotation marks omitted]; see Fay v. Satterly, 158 A.D.3d 1220, 1221, 70 N.Y.S.3d 268 [4th Dept. 2018] ). It is well settled that "[a] physician need not be a specialist in a particular field to qualify as a medical expert and any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony" ( Moon Ok Kwon v. Martin, 19 A.D.3d 664, 664, 799 N.Y.S.2d 63 [2d Dept. 2005] ; see Borawski v. Huang, 34 A.D.3d 409, 410–411, 824 N.Y.S.2d 362 [2d Dept. 2006] ; Corcino v. Filstein, 32 A.D.3d 201, 202, 820 N.Y.S.2d 220 [1st Dept. 2006] ).
We also agree with plaintiff that the court erred in determining that the expert's opinions were " ‘speculative or unsupported by any evidentiary foundation’ " ( Occhino, 151 A.D.3d at 1871, 57 N.Y.S.3d 325, 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] ). The expert's opinion was appropriately based in part on evidence in the record, i.e., decedent's medical records (see generally Admiral Ins. Co. v. Joy Contrs., Inc., 19 N.Y.3d 448, 457, 948 N.Y.S.2d 862, 972 N.E.2d 103 [2012] ; Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 725, 480 N.Y.S.2d 195, 469 N.E.2d 516 [1984] ). Those records included a CT scan of decedent revealing pneumatosis, which, according to Caruana's testimony, suggested that decedent's bowel was dying. The records also included the autopsy report, confirming that the cause of decedent's death was the passing of gastrointestinal contents through the wall of the dying bowel. Based on that information, the expert opined: "once a CT reveals pneumatosis, standards of care require that a surgeon visually inspects all of the portions of the bowel in the operating room. This is because bowel ischemia may or may not be reversible, and in case ischemia cannot be reversed, a bowel resection is necessary to save a patient's life." According to the expert, defendants deviated from the appropriate standard of care by failing to perform an "exploratory laparotomy of the entire bowel and abdominal cavity ... to address the source of [decedent's] sepsis," and defendants' deviation from the standard of care caused decedent's death.
We respectfully disagree with the dissent's conclusion that the expert opinion is conclusory. The opinion is not conclusory because it is supported by ample evidence that, if defendants had performed an exploratory laparotomy of the entire bowel, they would have discovered that resection of the dying bowel was medically necessary, and, furthermore, that resection of decedent's dying bowel would have saved her life (see Reid v. Soults, 138 A.D.3d 1087, 1090, 31 N.Y.S.3d 527 [2d Dept. 2016] ; cf. Diaz, 99 N.Y.2d at 544–545, 754 N.Y.S.2d 195, 784 N.E.2d 68 ).
All concur except Peradotto, J., who dissents in part and votes to modify in accordance with the following memorandum:
I respectfully dissent in part in appeal No. 2. Although I agree with the majority that Supreme Court erred in denying plaintiff's motion for leave to renew his opposition to defendants' motion for summary judgment dismissing the complaint, upon renewal I would adhere to the court's determination to grant defendants' motion and dismiss the complaint. I agree with defendants that the affirmation of plaintiff's expert submitted upon renewal in opposition to defendants' motion is conclusory and therefore insufficient to raise a triable issue of material fact whether the alleged malpractice of defendants was a proximate cause of the death of plaintiff's decedent (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] ). Plaintiff's expert "failed to articulate, in a nonconclusory fashion" that the alleged injuries to plaintiff's decedent would not have occurred absent the alleged malpractice of defendants ( Goldsmith v. Taverni, 90 A.D.3d 704, 705, 935 N.Y.S.2d 39 [2d Dept. 2011] ; see generally Diaz, 99 N.Y.2d at 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 ). Specifically, the expert failed to opine how a full abdominal exploration would have prevented the clinical deterioration of plaintiff's decedent or prevented her ultimate death in this case (see Poblocki v. Todoro, 49 A.D.3d 1239, 1240, 856 N.Y.S.2d 327 [4th Dept. 2008] ; Sawczyn v. Red Roof Inns, Inc., 15 A.D.3d 851, 852, 789 N.Y.S.2d 572 [4th Dept. 2005], lv denied 5 N.Y.3d 710, 804 N.Y.S.2d 35, 837 N.E.2d 734 [2005] ; Koeppel v. Park, 228 A.D.2d 288, 290, 644 N.Y.S.2d 210 [1st Dept. 1996] ). I therefore would modify the order in appeal No. 2 by granting that part of plaintiff's motion seeking leave to renew his opposition to defendants' motion for summary judgment and, upon renewal, adhere to the court's determination to grant defendants' motion and dismiss the complaint.