BRUCE T. CHILLIS, AS ADMINISTRATOR OF THE ESTATE OF DONNIE M. HOLLAND, DECEASED, PLAINTIFF-RESPONDENT-APPELLANT,
DOUGLAS A. BRUNDIN, JR., CRNA, DOUGLAS R. SILLART, M.D., MAPLE-GATE ANESTHESIOLOGISTS, P.C., AND BRIAN E. MCGRATH, M.D., DEFENDANTS-APPELLANTS-RESPONDENTS.
CONNORS LLP, BUFFALO (JOHN T. LOSS OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS DOUGLAS A. BRUNDIN, JR.,
CRNA, DOUGLAS R. SILLART, M.D., AND MAPLE-GATE
FELDMAN KIEFFER, LLP, BUFFALO (JAMES E. EAGAN OF COUNSEL),
FOR DEFENDANT-APPELLANT-RESPONDENT BRIAN E. MCGRATH, M.D.
ZILLER LLP, BUFFALO (LINDA J. MARSH OF COUNSEL), FOR
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN,
and cross appeal from an order of the Supreme Court, Erie
County (Donna M. Siwek, J.), entered September 28, 2016. The
order denied the respective motions of defendants for summary
judgment dismissing the complaint against them and the cross
motion of plaintiff for partial summary judgment on
hereby ORDERED that the order so appealed from is unanimously
modified on the law by granting the motion of defendant Brian
E. McGrath, M.D. and dismissing the complaint against him,
and as modified the order is affirmed without costs.
Plaintiff commenced this medical malpractice and wrongful
death action seeking damages arising from the death of his
brother (decedent), a 29-year-old man who died during surgery
performed by defendants to remove a mass from his buttocks.
Brian E. McGrath, M.D. (McGrath), who was decedent's
orthopedic surgeon, contends that Supreme Court erred in
denying his motion for summary judgment dismissing the
complaint against him. We agree, and we therefore modify the
order accordingly. "[O]n a motion for summary judgment,
a defendant in a medical malpractice action bears the initial
burden of establishing either that there was no deviation or
departure from the applicable standard of care or that any
alleged departure did not proximately cause the
[patient's] injuries" (Bagley v Rochester Gen.
Hosp., 124 A.D.3d 1272, 1273). McGrath met his burden by
submitting a detailed affirmation establishing that his care
and treatment of decedent in recommending and performing
surgery was consistent with the accepted standard of care
(see Macaluso v Pilcher, 145 A.D.3d 1559, 1560;
O'Shea v Buffalo Med. Group, P.C., 64 A.D.3d
1140, 1140-1141, appeal dismissed 13 N.Y.3d 834).
The burden then shifted to plaintiff to raise an issue of
fact by submitting a physician's affidavit establishing
both a departure from the accepted standard of care and
proximate cause (see Bagley, 124 A.D.3d at 1273).
Plaintiff failed to meet that burden inasmuch as he submitted
the affirmation of an anesthesiologist who failed to
establish how he was familiar with the accepted standard of
care for an orthopedic surgeon. Although a medical expert
need not be a specialist in a field to offer an opinion
concerning the accepted standards of care in that field, a
physician offering an opinion outside his or her particular
field must lay a foundation to support the reliability of
that opinion (see Shectman v Wilson, 68 A.D.3d 848,
849-850; see also Diel v Bryan, 71 A.D.3d 1439,
1440). We thus reject plaintiff's contention on his cross
appeal that the court erred in denying that part of his cross
motion for partial summary judgment on liability against
further conclude that the court properly denied the motion of
the remaining defendants, who were decedent's anesthesia
providers, for summary judgment dismissing the complaint
against them. Those defendants met their initial burden
inasmuch as they established a lack of causation by
submitting the certified report of an expert pathologist, who
opined that decedent died of a brain condition unrelated to
the surgery (see generally Manswell v Montefiore Med.
Ctr., 144 A.D.3d 564, 565), thus shifting the burden of
proof to plaintiff. In opposition, plaintiff's expert
anesthesiologist opined that the remaining defendants
deviated from the accepted standard of care and that their
deviation proximately caused decedent's death.
Plaintiff's expert stated that decedent sustained a
"massive intraoperative hemorrhage" and died of
extreme blood loss on the operating room table and, according
to the relevant medical records, decedent's "blood
pressure was unmeasurable as early as 11:40 [a.m.]" and
"no transfusion was begun until almost an hour
remaining defendants contend that plaintiff's expert
failed to establish that he was qualified to rebut the
opinion of their expert pathologist as to the cause of death
(see generally Shectman, 68 A.D.3d at 849-850). It
is well established, however, that " there may be more
than one proximate cause of an injury' "
(Mazella v Beals, 27 N.Y.3d 694, 706), and we
conclude that, under the circumstances of this case,
plaintiff's expert laid a proper foundation for his
opinion that blood loss was a proximate cause of
decedent's death. Thus, plaintiff raised an issue of fact
and the court properly denied the remaining defendants'
motion on that ground. We likewise conclude that the court
properly denied that part of plaintiff's cross motion for
partial summary judgment on liability against those
defendants (see generally Zuckerman v City of New
York, 49 N.Y.2d 557, 562).
to the further contention of the remaining defendants, they
failed to meet their burden of establishing as a matter of
law that plaintiff sustained no damages and thus failed to
establish their entitlement to summary judgment dismissing
the complaint against them on that ground as well (see
generally Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d
851, 853). In a wrongful death action, damages are limited to
"fair and just compensation for the pecuniary injuries
resulting from the decedent's death to the persons for
whose benefit the action is brought" (EPTL 5-4.3 [a]).
"Pecuniary loss" refers to "the economic value
of the decedent to each distributee at the time decedent
died" (Huthmacher v Dunlop Tire Corp., 309
A.D.2d 1175, 1176; see Milczarski v Walaszek, 108
A.D.3d 1190, 1190), including "loss of income and
financial support, loss of household services, loss of
parental guidance, as well as funeral expenses and medical
expenses incidental to death" (Milczarski, 108
A.D.3d at 1190). In the limited excerpts of plaintiff's
deposition testimony ...