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Pieter v. Polin

Supreme Court of New York, Second Department

March 29, 2017

Angela Pieter, appellant,
v.
Nichole M. Polin, et al., respondents. Index No. 5216/10

          Nathan L. Dembin & Associates, P.C., New York, NY (Ellen S. Davis of counsel), for appellant.

          Keller, O'Reilly & Watson, P.C., Woodbury, NY (Scott C. Watson and Jessica L. Darrow of counsel), for respondents.

          MARK C. DILLON, J.P. SANDRA L. SGROI SYLVIA O. HINDS-RADIX JOSEPH J. MALTESE, JJ.

          DECISION & ORDER

         In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Nahman, J.), entered September 19, 2014, which, upon the granting of the defendants' motion pursuant to CPLR 4401, made at the close of the plaintiff's case, for judgment as a matter of law dismissing the complaint insofar as asserted against the defendants Nicole M. Polin, Arash Salemi, and New York-Presbyterian/Weill Cornell Hospital, is in favor of those defendants and against her, dismissing the complaint insofar as asserted against those defendants.

         ORDERED that the judgment is affirmed, with costs.

         On October 23, 2007, the plaintiff was admitted to the defendant New York-Presbyterian/Weill Cornell Hospital (hereinafter the hospital) and underwent two cardiac catheterization procedures performed by the defendant Nichole M. Polin. The next day, she underwent coronary artery bypass surgery performed by the defendant Arash Salemi. In March 2010, the plaintiff commenced this action against the defendants to recover damages for medical malpractice and lack of informed consent arising from the surgeries. At the ensuing jury trial, the defendants moved pursuant to CPLR 4401, at the close of the plaintiff's case, to dismiss the complaint insofar as asserted against Polin, Salemi, and the hospital. The Supreme Court granted the motion and dismissed the complaint.

         "To be awarded judgment as a matter of law pursuant to CPLR 4401, a defendant must show that, upon viewing the evidence in the light most favorable to the plaintiff, there is no rational process by which the jury could find for the plaintiff against the moving defendant" (Pitt v New York City Tr. Auth, 146 A.D.3d 826, 827 [internal quotation marks omitted]; see Szczerbiak v Pilat, 90 N.Y.2d 553, 556; Santos v Deanco Servs., Inc., 142 A.D.3d 137, 143-144). "In considering such a motion, trial courts must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'" (Santos v Deanco Servs., Inc., 142 A.D.3d at 144, quoting Rumford v Singh, 130 A.D.3d 1002, 1004 [internal quotation marks omitted]).

         In order to establish a prima facie case of medical malpractice, a plaintiff must prove " (1) the standard of care in the locality where the treatment occurred, (2) that the defendant[s] breached that standard of care, and (3) that the breach of the standard was the proximate cause of injury'" (Deadwyler v North Shore Univ. Hosp. at Plainview, 55 A.D.3d 780, 781, quoting Berger v Becker, 272 A.D.2d 565, 565; see Brown v Shah, 109 A.D.3d 948, 949; Dockery v Sprecher, 68 A.D.3d 1043, 1045; Harper v Findling, 38 A.D.3d 601, 602; Lyons v McCauley, 252 A.D.2d 516, 517). " Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause'" (Novick v South Nassau Communities Hosp., 136 A.D.3d 999, 1000, quoting Lyons v McCauley, 252 A.D.2d at 517; see Sushchenko v Dyker Emergency Physicians Serv., P.C., 86 A.D.3d 638, 639; Dockery v Sprecher, 68 A.D.3d at 1045; Berger v Becker, 272 A.D.2d at 565).

         Here, the plaintiff failed to adduce expert testimony to establish the standards of care applicable to the performance and interpretation of cardiac diagnostics tests and the development and execution of treatment plans; that the defendants departed from good and accepted practice in interpreting the results of the catheterizations, in making the determination to proceed with bypass surgery, or in performing the surgery; or that the performance of a second catheterization or the failure to perform an intravascular ultrasound proximately caused her injuries. The plaintiff, therefore, failed to establish a prima facie case of medical malpractice (see Brown v Shah, 109 A.D.3d at 949; Perricone-Bernovich v Gentle Dental, 60 A.D.3d 744, 745; Deadwyler v North Shore Univ. Hosp. at Plainview, 55 A.D.3d at 781; Godlewska v Niznikiewicz, 8 A.D.3d 430, 431).

         The plaintiff also failed to establish a prima facie case of lack of informed consent due to the lack of any expert testimony adduced during her case in support of the alleged qualitative insufficiency of her consent (see CPLR 4401; Orphan v Pilnik, 15 N.Y.3d 907, 908; Deadwyler v North Shore Univ. Hosp. at Plainview, 55 A.D.3d at 781).

         The plaintiff's remaining contentions are without merit.

         Accordingly, the Supreme Court properly granted the defendants' motion pursuant to CPLR 4401, made at the close of the plaintiff's case, for judgment as a matter of law dismissing the complaint insofar as asserted against Palin, Salemi, and the hospital (see Brown v Shah, 109 A.D.3d at 949; Perricone-Bernovich v Gentle Dental, 60 A.D.3d at 745; Deadwyler v ...


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