Opinion
2013-04-25
Vera ZELDIN, etc., Plaintiff–Appellant, v. W. Roy MICHAELIS, M.D., et al., Defendants–Respondents.
Mark M. Basichas & Associates, P.C., New York (Aleksey Feygin of counsel), for appellant. Turken & Heath, LLP, Armonk (Jason D. Turken of counsel), for W. Roy Michaelis, M.D. and Montefiore Medical Group Co–Op City, respondents.
Mark M. Basichas & Associates, P.C., New York (Aleksey Feygin of counsel), for appellant. Turken & Heath, LLP, Armonk (Jason D. Turken of counsel), for W. Roy Michaelis, M.D. and Montefiore Medical Group Co–Op City, respondents.
Kaufman Borgeest & Ryan, LLP, Valhalla (Adonaid C. Medina of counsel), for John J. Gelfand, D.O. and Bogart Avenue Medical, P.C., respondents.
Marulli, Lindenbaum, Edelman & Tomaszewski, LLP, New York (Claudia E. Solis of counsel), for Luba Karlin, M.D. and Mohammed K. Nour, M.D., respondents.
TOM, J.P., ACOSTA, ROMÁN, FEINMAN, CLARK, JJ.
Judgment, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered June 1, 2011, dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered April 27, 2011, which granted defendants' motions and cross motion for summary judgment dismissing the complaint, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff alleges that the four defendant physicians failed to refer plaintiff's decedent to a cardiologist or for testing and/or to recognize that decedent had a tear in his aorta after a motor vehicle accident on June 20, 2004, which failures eventually led to an aortic dissection, causing his death on September 29, 2004.
Supreme Court properly found that all defendants met their burden on summary judgment. W. Roy Michaelis, Jr., M.D., the internist who treated decedent's hypertension until April 2004, established that he did not depart from accepted medical practice in continuing to prescribe antihypertensive medications for decedent, whose high blood pressure was resistant to treatment. Moreover, the alleged aortic tear, for which there was no record evidence, could only have existed after the motor vehicle accident, after decedent had ended his treatment with Dr. Michaelis ( see Burtman v. Brown, 97 A.D.3d 156, 945 N.Y.S.2d 673 [1st Dept. 2012] ). As to Montefiore Medical Center, no evidence of malpractice has been submitted.
After his motor vehicle accident, when decedent presented to John Gelfand, D.O., decedent presented no signs or symptoms which would have led Dr. Gelfand to conclude that an aortic tear was present. The symptom of severe chest wall pain was absent. The temporary chest wall pain which decedent did report was easily attributable to another cause, namely, the motor vehicle accident ( see Rivera v. Greenstein, 79 A.D.3d 564, 568–569, 914 N.Y.S.2d 94 [1st Dept. 2010];Shields v. Kleiner, 93 A.D.3d 710, 940 N.Y.S.2d 134 [2nd Dept. 2012] ).
Dr. Gelfand referred decedent to Luba Karlin, M.D., for a neurological examination, and to Mohammed K. Nour, M.D., for an orthopedic examination. The orthopedic examination was conducted by Dr. Nour's physician's assistant, Ahmed Jawad. Neither Dr. Karlin nor Dr. Nour had a duty to decedent to refer him to a cardiologist, since their duty was “ ‘limited to those medical functions undertaken by the physician and relied on by the patient’ ” ( Burtman, 97 A.D.3d at 161–162, 945 N.Y.S.2d 673;Chulla v. DiStefano, 242 A.D.2d 657, 658, 662 N.Y.S.2d 570 [2nd Dept. 1997], lv. dismissed91 N.Y.2d 921, 669 N.Y.S.2d 263, 692 N.E.2d 132 [1998] ).