Brown v. Soldiers & Sailors Memorial Hospital

193 A.D.2d 1077, 598 N.Y.S.2d 626, 1993 N.Y. App. Div. LEXIS 5701

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1993
• Status: Published

Opinion

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: The court properly denied the motion for summary judgment of defendant Soldiers and Sailors Memorial Hospital. On its motion, the hospital failed to address plaintiff’s allegation that it was negligent in prescribing painkillers by telephone the morning after he had received stitches for an arm laceration. It submitted an affidavit of a nurse who concluded that the treatment rendered by the nurses was consistent with medical and nursing standards. A physician at the hospital, however, allegedly prescribed the medication by telephone and no expert physician’s affidavit was submitted by the hospital. Thus, the hospital failed to meet its initial burden of establishing that its treatment of plaintiff in that respect was consistent with current standards of accepted medical practice, and the burden of proof never shifted to plaintiff (cf., Bills v Africano, 132 AD2d 935; Maust v Arseneau, 116 AD2d 1012).

The court erred, however, in denying the motion for summary judgment of defendant Dr. John Sullivan. Dr. Sullivan made a prima facie showing that the care he rendered was consistent with accepted medical practice through the affidavit of Dr. Joel Pasternack; plaintiff failed to meet his burden in opposition by submitting an expert’s affidavit raising an issue of fact (see, Bills v Africano, supra; Maust v Arseneau, supra). Plaintiff’s own allegations of medical malpractice, unsupported by any expert proof, are insufficient to defeat the motion (see, Alvarez v Prospect Hosp., 68 NY2d 320). (Appeal from Order of Supreme Court, Yates County, Falvey, J.— Summary Judgment.) Present^-Denman, P. J., Pine, Balio, Boomer and Davis, JJ.