Roberts v. New York Hospital Medical Center of Queens

298 A.D.2d 376, 751 N.Y.S.2d 389, 2002 N.Y. App. Div. LEXIS 9375

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 2002
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Queens County (Milano, J.), dated October 9, 2001, which granted the plaintiff’s motion for summary judgment on the issue of liability.

Ordered that the order is reversed, with costs, and the motion is denied.

The plaintiff commenced this medical malpractice action alleging that the defendant’s negligent care of Rasheeda Roberts resulted in permanent brain damage arising from hypoxia. At the time in question, Rasheeda Roberts was in the intensive care unit of the defendant hospital, intubated due to respiratory failure. However, in support of her motion for summary judgment on the issue of liability, the plaintiff failed to proffer competent expert evidence that, under the circumstances presented, the defendant hospital’s alleged failure to adequately maintain Rasheeda Roberts’s air passage was a departure from good and accepted medical practice, and a proximate cause of the damages alleged (see Holton v Sprain Brook Manor Nursing Home, 253 AD2d 852). Thus, the plaintiff’s motion should have been denied.

We note that the issue of the imposition of sanctions against the defendant for frivolous conduct concerning disclosure was not raised by the plaintiff before the Supreme Court and, therefore, is not properly before this Court on appeal (see 22 NYCRR 130-1.1). Ritter, J.P., Krausman, McGinity and Luciano, JJ., concur.