Maki v. Bassett Healthcare

85 A.D.3d 1366, 924 N.Y.S.2d 688
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 9, 2011
StatusPublished
Cited by21 cases

This text of 85 A.D.3d 1366 (Maki v. Bassett Healthcare) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maki v. Bassett Healthcare, 85 A.D.3d 1366, 924 N.Y.S.2d 688 (N.Y. Ct. App. 2011).

Opinion

Spain, J.

Appeals (1) from an order of the Supreme Court (Peckham, J.), entered November 18, 2010 in Delaware County, which, among other things, granted defendants’ cross motion for summary judgment dismissing the complaint, and (2) from an order of said court, entered November 18, 2010 in Delaware County, which denied plaintiffs motion for, among other things, recusal.

Plaintiff commenced this action, pro se, alleging a variety of negligence-based and intentional torts stemming from medical treatment rendered by defendants following a 2008 motor vehicle accident. After Supreme Court granted defendants’ cross motion for summary judgment, plaintiff moved to resettle Supreme Court’s order and requested that the judge recuse himself. Supreme Court denied that motion. Plaintiff now appeals both from the order dismissing the complaint and the order denying his motion.1

We affirm. Plaintiffs first argument is that Supreme Court improperly characterized this action as sounding in medical [1367]*1367malpractice and, accordingly, that its subsequent analysis granting summary judgment to defendants was flawed. In his complaint, plaintiff alleged “medical negligence,” specifically stating that defendants failed to “apply [their] knowledge, use reasonable care in the exercise of [their] skill, or use [their] best judgment while examining and treating” plaintiff, resulting in injuries arising from their failure to timely diagnose and properly treat him. “Conduct may be deemed malpractice, rather than negligence, when it ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician’ ” (Scott v Uljanov, 74 NY2d 673, 674-675 [1989], quoting Bleiler v Bodnar, 65 NY2d 65, 72 [1985]). Indeed, “medical malpractice is simply a form of negligence [and] no rigid analytical line separates the two” (Scott v Uljanov, 74 NY2d at 674). Given that the negligence alleged here relates entirely to the professional skill and judgment rendered by doctors, rather than information within the common knowledge of a layperson, we hold that Supreme Court properly treated it as a medical malpractice action (see id. at 674-675; Lomonaco v United Health Servs. Hosps., Inc., 16 AD3d 958, 960-961 [2005]; cf. Hilts v Board of Educ. of Gloversville Enlarged School Dist., 50 AD3d 1419, 1419-1420 [2008]).

Further, we agree that defendants were entitled to summary judgment on the malpractice claim. Plaintiffs accident occurred in Tennessee, where he was hospitalized and initially diagnosed with thrombosis of the portal vein,2 evidence of a cyst on his right cerebellopontine angle3 and a possible fracture of the right ankle. He was prescribed Coumadin — an anticoagulant — for the thrombosis, instructed to contact his primary care physician in seven days, and discharged. Thereafter, upon his return to New York, plaintiff was treated by defendant Shannon Conrad, a physician, who continued him on Coumadin and referred him to defendant James Leonardo, a physician specializing in hematology. In May 2009, Coumadin treatment was terminated and both physicians cleared plaintiff to return to work. Plaintiff was advised that the thrombosis had likely resolved as much as it ever would. At the relevant time, Conrad and Leonardo were employed by defendant Bassett Healthcare in Delaware County.

Thereafter, plaintiff began to seek work but, while working [1368]*1368on a rock wall at home prior to securing a job, he experienced severe back pain. Plaintiff then visited Michael Freeman, another physician who ordered a CT scan that showed portal hypertension with splenomegaly4 and significant spinal disc degeneration. Freeman recommended physical therapy which, according to plaintiff, has made a marked improvement in his condition. Plaintiff asserts that had defendants properly diagnosed him and prescribed physical therapy rather than releasing him to work, he would have had less pain and suffering and been able to return to work sooner.

As the proponents of summary judgment, defendants had the initial burden to demonstrate that they were not negligent, i.e., that the medical treatment they rendered to plaintiff was within acceptable standards of care or that their actions did not cause the asserted injuries (see Hickey v Arnot-Ogden Med. Ctr., 79 AD3d 1400, 1401-1402 [2010]; DeLorenzo v St. Clare’s Hosp. of Schenectady, N.Y., 69 AD3d 1177, 1179 [2010]). Defendants submitted sworn affirmations by Conrad and Leonardo describing their treatment of plaintiff and stating that they did not deviate from the appropriate standard of care. Specifically, with respect to his traumatic portal vein thrombosis, Leonardo opined that the six-month regimen of Coumadin prescribed for plaintiff was appropriate. Conrad’s affirmation addresses plaintiffs assertion that she failed to identify fractures in his spine, stating that plaintiffs intervertebral disk degeneration was indicative of a long-term condition not associated with his accident and that, given plaintiffs single complaint of minor lower back pain, more aggressive treatment was inappropriate. Further, the CT scan of plaintiffs lower back taken in Tennessee revealed evidence of “some old compression fractures” but “without definite acute fracture.” In addition, Conrad referred plaintiff to a neurosurgeon who concluded that the cerebellopontine angle cyst was congenital and therefore required no further action. Finally, Conrad opined that no treatment was necessary with regard to plaintiffs potential ankle fracture as he was not experiencing any discomfort. Based on this evidence, we agree with Supreme Court that defendants met their burden to show that no negligence on their part caused plaintiffs alleged injuries (see DeLorenzo v St. Clare’s Hosp. of Schenectady, N.Y., 69 AD3d at 1178-1179; Suib v Keller, 6 AD3d 805, 806 [1369]*1369[2004]; Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916, 917 [2000], lv denied 95 NY2d 751 [2000]; Stuart v Ellis Hosp., 198 AD2d 559, 560 [1993]).

The burden thus shifted to plaintiff “to show, by competent medical proof, that a deviation from the accepted standard of care occurred and that a causal nexus existed between the deviation and [his or] her injuries” (Plourd v Sidoti, 69 AD3d 1038, 1039 [2010]). Plaintiffs only medical proof in opposition is an unsworn letter written by Freeman, in which he states that the CT scan of plaintiff revealed portal hypertension with splenomegaly and severe disc degeneration. Significantly, the letter says nothing regarding the applicable standard of care for diagnosing or treating these conditions, and offers no opinion as to whether any departure from the appropriate standard occurred in plaintiffs case. In addition, because the unsworn letter has no probative value, plaintiffs submission cannot overcome defendants’ entitlement to summary judgment (see Lentini v Page, 5 AD3d 914, 916 [2004]; Parmisani v Grasso, 218 AD2d 870, 872 [1995]). Indeed, plaintiff has not pleaded facts that would demonstrate any definitive deficiencies in the diagnoses or treatments proffered by defendants. Contrary to his assertions, we find no record evidence of undiagnosed spinal fractures attributable to his motor vehicle accident. Accordingly, summary judgment was properly awarded to defendants on the malpractice claim (see Rivera v Kleinman, 16 NY3d 757, 759 [2011]; Caulkins v Vicinanzo, 71 AD3d 1224, 1226-1227 [2010];

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Bluebook (online)
85 A.D.3d 1366, 924 N.Y.S.2d 688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maki-v-bassett-healthcare-nyappdiv-2011.