Fall v. Guseynov

126 A.D.3d 446, 5 N.Y.S.3d 67

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 2015
• Docket: 14432 309989/10
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Stanley Green, J.), entered May 13, 2014, which granted the motions of defendants for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Each defendant, through submissions of experts’ affidavits and plaintiffs medical records, satisfied his or her burden as movant for summary judgment with a prima facie showing that the care rendered to plaintiff was within good and acceptable standards of medical care. In response, the opinions in plaintiffs expert affirmation are either eonclusory or contradicted by the record, and fail to raise a triable issue of fact (see Fleming v Pedinol Pharmacal, Inc., 70 AD3d 422 [1st Dept 2010]).

Plaintiffs expert opined that defendant doctors deviated from good and accepted medical care by failing to confirm that plaintiff was HIV positive prior to prescribing him antiretroviral medications, failing to conduct an HIV test within two to eight weeks of beginning his regimen, failing to order annual follow up testing, and by not being board certified in infectious disease. Plaintiff however, did not deny advising his doctors at his intake that he was HIV positive, nor did he deny the veracity of the laboratory report indicating he was HIV positive. To the contrary, all evidence submitted by plaintiff indicated that prior to treating with any of the defendant doctors, he was tested and told, apparently mistakenly, that he was HIV positive. Plaintiffs claim that defendants committed malpractice by treating plaintiff although they were not specialists in infectious diseases has been rejected by this court (see Thomas v Solon, 121 AD2d 165 [1st Dept 1986]).

We have considered and rejected plaintiffs remaining arguments.

Concur — Mazzarelli, J.P., Sweeny, Moskowitz, Clark and Kapnick, JJ.