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Denis v. Manhattanville Rehabilitation and Health Care Center, LLC

Supreme Court of New York, First Department

November 7, 2013

Nelson Denis, etc., Plaintiff-Appellant,
v.
Manhattanville Rehabilitation and Health Care Center, LLC, etc., et al., Defendants-Respondents.

Cynthia A. Matheke, New York, for appellant.

Martin Clearwater & Bell LLP, New York (Stewart G. Milch of counsel), for Manhattanville Rehabilitation and Health Care Center, LLC, respondent.

Garson & Jakub, LLP, New York (Susan M. McNamara of counsel), for Carl Franzetti, M.D., Vandana Patil, M.D. And Riverdale Family Practice, LLC, respondents.

Sweeny, J.P., Moskowitz, Renwick, DeGrasse, Gische, JJ.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 19, 2012, which, to the extent appealed from as limited by the briefs, granted defendants' motions for summary judgment dismissing the causes of action for medical malpractice, negligence and lack of informed consent, unanimously affirmed, without costs.

Plaintiff failed to submit evidence to rebut defendants' prima facie showing that they did not deviate from the accepted standard of care in their treatment of the decedent during her 20-day admission at defendant Manhattanville. His expert assumed that the decedent had a C. difficile infection throughout her admission and that the infection worsened during her stay. He failed to support these conclusions by referring to specific entries in the records, and, as to two negative stool sample tests, he speculated that they had been handled poorly. Plaintiff's expert's claims that the decedent suffered from dehydration and was not properly nourished were conclusory and failed to controvert defendants' expert's evidence to the contrary. Moreover, the expert failed to causally relate the decedent's injuries to defendants' alleged departures from the standard of care (see Margolese v Uribe, 238 A.D.2d 164 [1st Dept 1997]).

Plaintiff's expert's opinion as to the lack of informed consent was predicated on his unsupported assumption as to the duration of the C. difficile infection and relied on alternative "potential" treatments that were experimental, without addressing whether the decedent would have been a candidate for any of them. Moreover, the expert did not opine that the lack of informed consent was a proximate cause of the decedent's injuries. The opinion was therefore insufficient to raise an inference that a reasonably prudent person in the decedent's circumstances, having been appropriately informed of the risks and alternatives,

would have elected an alternate course of treatment, and that the lack of informed consent was the proximate cause of the decedent's injuries (see Public Health Law § 2805-d[1], [3]; Shkolnik v Hospital for Joint Diseases Orthopaedic Inst., 211 A.D.2d 347, 350 [1st Dept 1995], lv denied 87 N.Y.2d 895 [1995]).

We have considered plaintiff's remaining arguments and find them unavailing.


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