Stephen A. Harrison, Brooklyn, N.Y., for appellants.
Geisler & Gabriele, LLP, Garden City, N.Y. (Lori A. Marano of counsel), for respondent Joseph Ciuffo.
Voute, Lohrfink, Magro & McAndrew, LLP, White Plains, N.Y. (Joan S. Levin of counsel), for respondent Sidney Rosman.
MARK C. DILLON, J.P., RANDALL T. ENG, ARIEL E. BELEN, SANDRA L. SGROI, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), dated March 30, 2011, as granted those branches of the separate motions of the defendants Joseph Ciuffo and Sidney Rosman which were for summary judgment dismissing the causes of action to recover damages for medical malpractice insofar as asserted against each of those defendants, and (2) so much of a judgment of the same court entered July 6, 2011, as, upon the order, is in favor of those defendants and against them dismissing the causes of action to recover damages for medical malpractice insofar as asserted against each of those defendants.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed insofar as appealed from, on the law, those branches of the separate motions of the defendants Joseph Ciuffo and Sidney Rosman which were for summary judgment dismissing the causes of action to recover damages for medical malpractice insofar as asserted against each of them are denied, those causes of action are reinstated, and the order dated March 30, 2011, is modified accordingly; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a]).
In 1994, the injured plaintiff, John Yaegel, went to his primary care physician, the defendant Joseph Ciuffo, with complaints of blood in his stool. Ciuffo referred the injured plaintiff to a gastroenterologist, the defendant Sidney Rosman. In April 1994, Rosman diagnosed the plaintiff with Crohn's disease and prescribed Asacol. Over the next several years, the injured plaintiff was treated by both Ciuffo and Rosman, and except for a period from 1997 or 1998 to 2000, the injured plaintiff continued, with the knowledge of both physicians, to take Asacol as prescribed by Rosman.
The injured plaintiff alleged that after several years of Asacol use, he complained to Ciuffo during a December 22, 2005, appointment, and to Rosman during a January 4, 2006, appointment, of various symptoms consistent with renal problems. In January 2006 the injured plaintiff was rushed to a hospital, where physicians diagnosed him with interstitial nephritis, a kidney disease that the injured plaintiff asserts was caused by the use of Asacol.
The injured plaintiff, with his wife suing derivatively, commenced this action against, among others, Ciuffo and Rosman, alleging, among other things, that they failed to conduct appropriate periodic blood tests to monitor for possible kidney damage while he was taking Asacol. The plaintiffs also alleged that Ciuffo, who had knowledge that Rosman had prescribed Asacol to the plaintiff, deviated from accepted medical standards by failing to order a renal chem panel on December 22, 2005, on which date the injured plaintiff had presented to him with symptoms consistent with renal problems. The plaintiffs further alleged that Rosman deviated from accepted medical standards by, inter alia, failing to order blood tests over the approximately two years prior to the onset of the interstitial nephritis and in failing to order the necessary tests on January 4, 2006, when the injured plaintiff presented to him with symptoms consistent with renal problems.
Ciuffo and Rosman separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted the motions and entered a judgment dismissing the complaint insofar as asserted against Ciuffo and Rosman.
" The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury'" (Faicco v Golub, 91 A.D.3d 817');">91 A.D.3d 817, 818, quoting Roca v Perel, 51 A.D.3d 757');">51 A.D.3d 757, 758). Thus, on a motion for summary judgment dismissing a cause of action to recover damages for medical malpractice, "the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not ...