& Record, LLP, Bayside, NY (Sang J. Sim of counsel), for
Arshack, Hajek & Lehrman, PLLC, New York, NY (Lynn Hajek
of counsel), for respondent Wyckoff Heights Medical Center.
Kornfeld & Brennan LLP, New York, NY (Tracy S. Katz of
counsel), for respondents Wyckoff Emergency Medicine
Services, P.C., and Ilona Rozenberg.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, BETSY BARROS,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action, inter alia, to recover damages for medical
malpractice, etc., the plaintiffs appeal from an order of the
Supreme Court, Kings County (Steinhardt, J.), dated November
20, 2014, which granted the motion of the defendant Wyckoff
Heights Medical Center for summary judgment dismissing the
complaint insofar as asserted against it, and granted the
separate motion of the defendants Wyckoff Emergency Medicine
Services, P.C., and Ilona Rozenberg for summary judgment
dismissing the complaint insofar as asserted against them.
that the order is affirmed, with one bill of costs payable to
the respondents appearing separately and filing separate
plaintiff Juan Ortiz (hereinafter the plaintiff) presented to
the emergency room of the defendant Wyckoff Heights Medical
Center on May 27, 2010, complaining of fever, chills,
headache, joint pain, dizziness, and bilateral ear pain since
the previous day. All of his vital signs were normal and
stable, as was his temperature. The defendant Ilona
Rozenberg, the physician's assistant who treated the
plaintiff, conducted a complete physical and cardiovascular
examination which yielded normal results and which ruled out
various types of infection such as bacterial ear infection,
exudative tonsillitis, bronchitis, and pneumonia. The
plaintiff's condition was noted as stable and improved,
and he was diagnosed with viral syndrome and subsequently
discharged from care with instructions to follow up with his
primary care physician and to return to the emergency room if
his symptoms worsened.
days later, on June 3, 2010, the plaintiff presented at Beth
Israel Medical Center with complaints of fever, nausea, and
headache for the preceding 10 days. His temperature was 103.3
degrees, and he was admitted to the hospital, where he
ultimately was diagnosed with and treated for endocarditis.
The plaintiff, and his wife suing derivatively, thereafter
commenced this action, alleging medical malpractice in the
treatment the plaintiff received at Wyckoff Heights Medical
Center. The Supreme Court granted the motion of the defendant
Wyckoff Heights Medical Center, and the separate motion of
the defendants Wyckoff Emergency Medicine Services, P.C., and
Rozenberg, for summary judgment dismissing the complaint
insofar as asserted against each of them. We affirm.
elements of medical malpractice are (1) a deviation or
departure from accepted medical practice, and (2) evidence
that such departure was the proximate cause of injury
(see Sampson v Contillo, 55 A.D.3d 588, 589). Thus,
on a motion for summary judgment dismissing the complaint in
a medical malpractice action, the defendant has the initial
burden of establishing the absence of any departure from good
and accepted medical practice or that the plaintiff was not
injured thereby (see Bongiovanni v Cavagnuolo, 138
A.D.3d 12, 16). "[T]o defeat summary judgment, the
nonmoving party need only raise a triable issue of fact with
respect to the element of the cause of action or theory of
nonliability that is the subject of the moving party's
prima facie showing" (Stukas v Streiter, 83
A.D.3d 18, 24).
on their separate motions, the defendants established their
prima facie entitlement to judgment as a matter of law by
submitting testimonial, documentary, and expert affirmation
evidence demonstrating that they did not depart from good and
accepted medical practice in rendering care to the plaintiff,
and that further diagnostic testing was unwarranted given his
non-specific symptoms, his stable vital signs, and his normal
physical examination. In opposition, the plaintiffs failed to
raise a triable issue of fact, as their expert's opinion
that additional medical testing should have been undertaken
was conclusory, speculative, and based largely on hindsight
reasoning (see Schuck v Stony Brook Surgical Assoc.,
140 A.D.3d 725, 727; Raucci v Shinbrot, 127 A.D.3d
839, 842-843; Lau v Wan, 93 A.D.3d 763, 765;
Micciola v Sacchi, 36 A.D.3d 869, 871).
plaintiffs' remaining contentions are either improperly
raised for the first time on appeal or without merit.
the Supreme Court properly granted the defendants'
separate motions for summary judgment dismissing the