year old boy, was diagnosed in 1990 with primary pulmonary hypertension and his life expectancy was between twelve and eighteen months. (Smith Aff. at P 5.) John Jr.'s condition was initially treated at a hospital in Philadelphia before he was referred to Dr. Barst at Presbyterian Hospital. Dr. Barst recommended that defendant, Dr. Smith, who is not an employee of Presbyterian Hospital, perform a heart/lung transplant.
In March 1990, John Jr. underwent evaluation and treatment at Presbyterian Hospital. On May 29, 1990, a potential donor became available to the Presbyterian's Hospital's transplant team, but the transplant did not proceed because the donor organs were not acceptable for transplant. (Smith Aff. at P 8.) At that time, Dr. Smith discussed the potential benefits and risks of the operation, and the plaintiff signed a consent form. (Smith Aff. at P 7.) The plaintiff, Carmella Good, alleges that the transplant did not proceed because Dr. Smith told her, "they (the lungs) have to be clean, perfect, nothing, no spots, no diseases, no viruses." (Carmella Good Dep. at 286.)
In August 1990, another donor became available. Prior to death, the child donor had received blood transfusions and was subsequently determined to be positive for CMV. The plaintiff maintains that the donor's CMV status was known to Dr. Smith and the other members of the transplant team prior to accepting the organs on behalf of John Jr., who was CMV negative. The doctors had previously provided the plaintiff with a booklet detailing the many risks of a cardiopulmonary transplant, but there is no contention that Dr. Smith advised the plaintiff that the donor for the specific transplant was CMV positive. The plaintiff again signed an informed consent form. (Smith Aff. at P 9.)
It is not disputed that the transplant was successful. It is also undisputed that after the initial period, John Jr.'s condition started to deteriorate. Dr. Smith admits that John Jr. showed signs of allograft rejection, CMV infection, and suffered from barotrauma and lung disease. (Smith Aff. at P 15.) John Jr. eventually died on October 5, 1990. The parties dispute whether CMV played a substantial role in causing John Jr.'s death. It is not disputed that the autopsy findings are consistent with both rejection and infection.
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue resolution." Gallo, 22 F.3d at 1224.
The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court must resolve all ambiguities against the moving party. See Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)); see also Gallo, 22 F.3d at 1223.
If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Corp., 43 F.3d 29, 37 (2d Cir. 1994).
If the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus., 475 U.S. at 586. The nonmoving party must set forth specific facts showing that there is a genuine issue for trial. The nonmoving party may not rest upon mere allegations or denials of the moving party's pleadings. Anderson, 477 U.S. at 248-249. Speculative and conclusory allegations are insufficient to meet this burden. Allen v. Coughlin, 64 F.3d 77, 80 (2d Cir. 1995); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
The plaintiff alleges that Dr. Smith is liable for medical malpractice because he failed to comply with the informed consent procedure of New York Public Health Law § 2805-d(1).
The plaintiff contends that she was not properly informed about the risks of CMV infection and the effects that CMV positive organs can have in the body of a patient who is CMV negative.
The plaintiff alleges that:
Despite having told Mrs. Good in May that the organs needed to be perfect, Dr. Smith made the decision himself to accept the mismatched organs. Although Dr. Smith told other members of the transplant team about the mismatch prior to surgery, no one ever conveyed that information to Mrs. Good or Mrs. Tucker [a close friend of Mrs. Good]. They arrived, and were given a consent form and told to sign it. The form says nothing about the now known CMV mismatch.