Vogt v. Herstik

Vogt v Herstik (2015 NY Slip Op 04430)

Vogt v Herstik

2015 NY Slip Op 04430

Decided on May 26, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 26, 2015
Tom, J.P., Friedman, Sweeny, Saxe, Clark, JJ.

15233 110359/11

[*1] Gary Vogt, Plaintiff-Respondent,

v

Ivan G. Herstik, Defendant-Appellant.

McGaw, Alventosa & Zajac, Jericho (James K. O'Sullivan of counsel), for appellant.

Becker & D'Agostino, P.C., New York (Michael D'Agostino of counsel), for respondent.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered February 28, 2014, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

Plaintiff failed to raise a triable issue of fact in opposition to defendant's prima facie showing that he did not deviate or depart from accepted medical practice in his treatment of plaintiff's left foot (see Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]). Plaintiff's expert offered no evidentiary basis for his conclusion that defendant deviated from the standard of care in giving plaintiff two cortisone injections within a one-week period or his opinion that the 8 mg dosage of cortisone given on each of those occasions was excessive. He merely stated conclusorily that defendant "should have waited a minimum of two weeks before the second injection."

Nor did plaintiff raise an issue of fact whether any such deviation by defendant was the proximate cause of his injury (see Colwin v Katz, 122 AD3d 523 [1st Dept]). He failed to address defendant's expert's statement that the rupture of an Achilles tendon by the administration of cortisone injections has never been reported in the medical literature.

In view of the foregoing, plaintiff's claim of lack of informed consent must be dismissed (see Flores v Flushing Hosp. & Med. Ctr., 109 AD2d 198, 201 [1st Dept 1985]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 26, 2015

CLERK