Wicksman v. Nassau County Health Care Corp.

27 A.D.3d 644, 811 N.Y.S.2d 778

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2006
• Status: Published

Opinion

In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (Dunne, J.), dated May 17, 2005, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage (see Anderson v Lamaute, 306 AD2d 232, 233 [2003]; DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359 [1998]). The defendant made a prima facie showing of entitlement to summary judgment dismissing the action, inter alia, to recover damages for medical malpractice, based upon the medical records of the decedent, Stuart Wicksman, the deposition testimony of the plaintiff, the plaintiffs daughter, and the defendants’ employee, Dr. Ali S. Karakurum. Moreover, the affidavit of the defendants’ medical expert established that the defendants did not deviate from good and accepted medical practice in the care and treatment of the plaintiffs decedent at the defendants’ “Doctors After Hours Clinic” on September 3, 2000 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Holbrook v United Hosp. Med. Ctr., supra). In opposition, the affidavits of the plaintiffs medical experts were insufficient to raise a triable issue of fact as to whether the defendants breached any duty of care owed to the plaintiffs decedent (see Holbrook v United Hosp. Med. Ctr., supra). General allegations of medical malpractice, merely conclusory in nature and unsupported by competent evidence tending to establish the essential elements of the claim, are insufficient to defeat the defendants’ entitlement to summary judgment (see Alvarez v Prospect Hosp., supra at 325). The allegations of the plaintiff’s experts were either conclusory, unsubstantiated, or refuted by the evidence. Further, assuming that the defendants departed from accepted medical practice, there is no evidence that any such departure was the proximate cause of the plaintiffs decedent’s death. The affidavits of the plaintiffs medical experts were silent on the essential issue of proximate cause (see DiMitri v Monsouri, supra; Fritz v Southside Hosp., 182 AD2d 671 [1992]; Amsler v Verrilli, 119 AD2d 786 [1986]). Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint. Miller, J.P., Adams, Santucci and Fisher, JJ., concur.