Lepowsky Hauss & Danke, LLP, Staten Island, NY (Neil F.
Schreffler of counsel), for appellants.
Offices of Joseph M. Lichtenstein, P.C., Mineola, NY (Joseph
L. Ciaccio of counsel), for respondent.
C. DILLON, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, SYLVIA O.
HINDS-RADIX, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action to recover damages for medical malpractice, the
defendants appeal, as limited by their brief, from so much of
an order of the Supreme Court, Richmond County (McMahon, J.),
dated November 5, 2014, as denied that branch of their motion
which was for summary judgment dismissing the complaint.
that the order is affirmed insofar as appealed from, with
April 13, 2009, Dr. Divyang Parikh, a gastroenterologist,
performed a colonoscopy on the plaintiff. Thereafter, on
April 21, 2009, the plaintiff presented to Parikh in a highly
emotional state, complaining of nonspecific abdominal pain.
Parikh referred the plaintiff to his primary care physician
for a psychiatric evaluation. Two days later, on April 23,
2009, the plaintiff presented to the emergency room at Staten
Island University Hospital, where he was diagnosed with acute
about June 2, 2011, the plaintiff commenced this action to
recover damages for medical malpractice against Parikh and
his employer, the defendant Digestive Liver Disease Center,
alleging, inter alia, that the defendants departed from
accepted standards of medical care by perforating the
plaintiff's appendix during the April 13, 2009,
colonoscopy, and then failing to diagnose him with a
perforated appendix during the April 21, 2009, follow-up
deposition, the plaintiff testified that he presented to
Parikh on April 21, 2009, complaining of severe pain, but
Parikh would not allow the plaintiff to lie down during the
visit and suggested that he seek psychiatric help. The
plaintiff's wife, Donna Mackauer (hereinafter Mackauer),
testified at her deposition that she accompanied the
plaintiff to the April 21, 2009, follow-up visit, at which
time he "was very gray and sweating, " had a fever,
could barely stand, and was "very emotional"
because of his pain. She testified that the plaintiff
complained that the pain in his stomach was "worse than
it had ever been" and was "very different"
from the pain he had experienced before. According to
Mackauer, Parikh dismissed the plaintiff's pain as
psychological and refused to physically examine him. Parikh
prescribed medication to help the plaintiff relax, and
advised him to see a psychiatrist.
testified at his deposition that he first saw the plaintiff
on April 24, 2008. At that time, the plaintiff reported,
inter alia, a two-year history of pain with bloating and
burning, mainly localized in the upper abdomen. After a
series of visits and tests, on March 31, 2009, the plaintiff
complained of abdominal pain in the right upper quadrant,
heaviness, indigestion, nausea, and bloating after meals.
Parikh advised the plaintiff of the need for a colonoscopy
and an esophagogastroduodenoscopy (hereinafter EGD) for
further evaluation of his gastrointestinal complaints. In his
report for the visit, Parikh noted that the plaintiff
exhibited "abnormal behavior, " and that
"[i]nitially he started crying and by the end of the
office visit he was laughing." On April 13, 2009, Parikh
performed a colonoscopy and EGD on the plaintiff, resulting
in a diagnosis of, inter alia, mild diverticulosis. On April
18, 2009, Parikh received a phone call from Mackauer, who
informed him that the plaintiff was very anxious and asked
Parikh for his help in counseling the plaintiff to seek a
psychiatric evaluation. Parikh advised Mackauer to accompany
the plaintiff to his next visit. On April 21, 2009, the
plaintiff presented for a follow-up visit, accompanied by his
wife. Parikh noted that the plaintiff was crying and
complaining of nonspecific abdominal pain. Parikh directed
the plaintiff to consult with his primary care physician for
a psychiatric evaluation. Parikh further testified that the
plaintiff's chief complaint of nonspecific abdominal pain
was the same type of pain he had complained of prior to the
colonscopy, i.e., abdominal bloating and excessive
flatulence. Based upon his review of the medical records,
Parikh opined that the appendicitis was not related to the
colonoscopy, and the plaintiff "must have developed
acute appendicitis on the day he went to the emergency
plaintiff served a "supplemental" bill of
particulars dated April 29, 2014, asserting, inter alia, the
following additional theories of malpractice: "failure
to perform a physical evaluation on th[e] plaintiff when
plaintiff presented to the defendant's office on April
21st, 2009 complaining of pain; negligently attributing the
plaintiff's abdominal pain as a psychotic episode;...
failure to refer the plaintiff to the emergency room at the
April 21st, 2009 visit, refusing to evaluate the plaintiff at
the 4/21/09 visit; allowing the plaintiff's condition to
worsen; failure to appreciate the significant [sic] of the
plaintiff's abdominal pain; failure to conduct tests to
determine the cause of the plaintiff's abdominal pain;
failure to appreciate the significant [sic] of severe
abdominal pain in a patient who underwent a
colonoscopy." The plaintiff filed a note of issue and
certificate of readiness for trial dated April 30, 2014.
notice of motion dated June 23, 2014, the defendants moved,
inter alia, for summary judgment dismissing the complaint.
The Supreme Court denied that branch of the defendant's
motion. The defendants appeal. We affirm.
physician moving for summary judgment dismissing a complaint
alleging medical malpractice must establish, prima facie,
either that there was no departure from accepted standards of
medical care or that any departure was not a proximate cause
of the plaintiff's injuries (see Uchitel v
Fleischer, 137 A.D.3d 1111, 1112; Senatore v
Epstein, 128 A.D.3d 794, 795). In order to sustain this
burden, the defendant must address and rebut any specific
allegations of malpractice set forth in the plaintiff's
bill of particulars (see Wall v Flushing Hosp. Med.
Ctr., 78 A.D.3d 1043, 1044-1045; Grant v Hudson Val.
Hosp. Ctr., 55 A.D.3d 874, 874). Once this showing has
been made, the burden shifts to the plaintiff to submit
evidentiary facts or materials to rebut the defendant's
prima facie showing, but only "as to those elements on
which the defendant met the prima facie burden"
(Harris v Saint Joseph's Med. Ctr., 128 A.D.3d
1010, 1012; see Alvarez v Prospect Hosp., 68 N.Y.2d
320, 324; Uchitel v Fleischer, 137 A.D.3d at 1112;
Stukas v Streiter, 83 A.D.3d 18, 30).
the defendants demonstrated their prima facie entitlement to
judgment as a matter of law dismissing the complaint by
submitting, inter alia, the expert affirmation of Dr. James
Grendell, a gastroenterologist, who opined that the
defendants did not depart from accepted standards of care in
performing the colonoscopy and did not perforate the
plaintiff's appendix (see Stukas v Streiter, 83
A.D.3d at 30). Further, Grendell opined, with a reasonable
degree of medical certainty, that the plaintiff was provided
with proper care and "did not exhibit any signs or
symptoms of appendicitis on April 21, 2009" when he was
examined by Parikh.
opposition, the plaintiff raised a triable issue of fact
(see Zuckerman v City of New York,49 N.Y.2d 557,
562) through the submission of, inter alia, the expert
affirmation of Dr. David Zimmon, a gastroenterologist.
Although Zimmon acknowledged that the plaintiff's
appendix was not perforated during the colonoscopy, he opined
that Parikh departed from the standard of care by failing to
diagnose the plaintiff with appendicitis during the April 21,
2009, follow-up visit, and that this departure directly
caused the plaintiff to suffer severe complications
associated with a perforated appendix. Zimmon disagreed with
Grendell's conclusion that the plaintiff did not exhibit
any signs or symptoms of appendicitis on April 21, 2009,
noting that, based upon his review of the plaintiff's and
Mackauer's deposition testimony, there was a question as
to whether Parikh actually examined the plaintiff at all on
that date. Zimmon opined: "The type of severe pain the
plaintiff felt on April 21st, is evidence of an obstructed
appendix before rupture or abscess ...