Chipley v. Stephenson

Smith, J.P. (dissenting in part).

I respectfully disagree with the majority’s conclusion that plaintiff raised triable issues of fact in opposition to the motions of the Stephenson and DeFranco defendants (collectively, defendants) for summary judgment dismissing the complaint against them. I therefore dissent in part and would affirm the order.

In support of their motion, defendants had the initial “burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff [and her son were] not injured thereby” (Murray v Hirsch, 58 AD3d 701, 702 [2009], lv denied 12 NY3d 709 [2009]; see O’Shea v Buffalo Med. Group, P.C., 64 AD3d 1140 [2009], appeal dismissed 13 NY3d 834 [2009]). As plaintiff correctly concedes, they met that burden, whereupon “[t]he burden then shifted to plaintiff! ] to raise triable issues of fact by submitting a physician’s affidavit [or affirmation] both attesting to a departure from accepted practice and containing the attesting [physician’s] opinion that the defendants’] omissions or departures were a competent producing cause of the injuries]” (O’Shea, 64 AD3d at 1141 [internal quotation marks omitted]). Contrary to the contention of plaintiff, she failed to raise the requisite triable issues of fact by submitting her expert’s affirmation in opposition to defendants’ motions.

The affirmation of plaintiffs expert identified several alleged failures of defendants, including their failure to order an amniocentesis, to have a “backup” plan for plaintiffs cesarean section, and to advise plaintiff to go immediately to another hospital when she went into labor. The expert failed, however, to identify a standard of care requiring that such steps be taken or to indicate that the failure to take such steps was a departure from accepted practice. Where, as here, “the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation . . . , the opinion should be given no probative force and is insufficient to withstand summary judgment” (Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; see Rodriguez v Montefiore Med. Ctr., 28 AD3d 357 [2006]). In any event, even assuming, arguendo, that the affirmation established that defendants’ treatment constituted a departure from accepted practice, I conclude that plaintiff failed to raise a triable issue of fact sufficient to defeat the motions because her expert did not ultimately conclude that defendants’ omissions or departures were a proximate cause of the injuries sustained by plaintiff and her son (see Pigut v Leary, 64 AD3d 1182 [2009]; Murray v Hirsch, 58 AD3d 701, 703 [2009]; Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]; cf. Selmensberger v Kaleida Health, 45 AD3d 1435, 1436 [2007]). Present—Smith, J.P., Centra, Fahey and Pine, JJ.