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Webb v. Albany Medical Center

Supreme Court of New York, Third Department

June 22, 2017

TAMMY-JO WEBB, Appellant,
v.
ALBANY MEDICAL CENTER et al., Respondents.

          Calendar Date: May 2, 2017

          Pollock Law Firm, Manchester Center, Vermont (David J. Pollock of counsel), for appellant.

          Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Justin W. Gray of counsel), for respondents.

          Before: Peters, P.J., Garry, Lynch, Clark and Aarons, JJ.

          MEMORANDUM AND ORDER

          Peters, P.J.

         Appeal from an order of the Supreme Court (Connolly, J.), entered June 13, 2016 in Albany County, which granted defendants' motion for, among other things, summary judgment dismissing the complaint.

         On May 24, 2008, plaintiff visited her friend, Lisa Clark, at defendant Albany Medical Center where Clark had recently undergone a double leg amputation after suffering a stroke. When plaintiff entered Clark's hospital room, medical personnel were preparing Clark for physical therapy. Plaintiff then accompanied Clark for a physical therapy session. During that session, Clark allegedly fell off the slide board used to facilitate her transfer from a wheelchair to a physical therapy bed, and plaintiff caught Clark mid-fall.

         Plaintiff thereafter commenced this action against defendants to recover damages for injuries that she allegedly sustained to her shoulder as a result of the incident. In her supplemental bill of particulars, plaintiff asserted that defendants were negligent in, among other things, "failing to use the necessary care and skill in transferring" Clark - specifically, that the medical employee who performed the transfer relied on the assistance of Clark, who was incapable of following directions or rendering assistance. Following joinder of issue and discovery, defendants moved for, among other things, summary judgment dismissing the complaint, arguing, insofar as is relevant here, that they did not deviate from the accepted standard of care. Supreme Court granted the motion, and plaintiff appeals.

         Although plaintiff's complaint does not specifically assert a cause of action for medical malpractice, Supreme Court found that this action sounds in medical malpractice and the parties treat it as such on appeal. We agree, as the conduct alleged by plaintiff in her pleadings bears a substantial relationship to the rendition of medical treatment by a licensed physician (see Davis v South Nassau Communities Hosp., 26 N.Y.3d 563, 580-581 [2015]; Martuscello v Jensen, 134 A.D.3d 4, 11 [2015]; Meiselman v Fogel, 50 A.D.3d 979, 980 [2008], appeal dismissed 11 N.Y.3d 783');">11 N.Y.3d 783 [2008]).

         Addressing the merits, "[a] finding of medical malpractice requires proof that defendants deviated from accepted medical practice and that such deviation was the proximate cause of plaintiff's injury" (Adams v Anderson, 84 A.D.3d 1522, 1523 [2011]; see Mazella v Beals, 27 N.Y.3d 694, 705 [2016]). Thus, "[a]s the proponents of the... motion[] for summary judgment, defendants bore the initial burden of establishing that they did not depart from acceptable standards of care or that any such departure did not cause the injury" (Longtemps v Oliva, 110 A.D.3d 1316, 1317 [2013]; see Rivera v Albany Med. Ctr. Hosp., 119 A.D.3d 1135, 1137 [2014]; see generally Pullman v Silverman, 28 N.Y.3d 1060, 1062-1063 [2016]).

         The gravamen of plaintiff's claim is that initiating a slide board transfer of Clark with minimal to moderate assistance deviated from the applicable standard of care, thereby causing Clark's fall and plaintiff's injuries. Defendants met their initial burden of establishing entitlement to judgment as a matter of law by submitting, among other things, an expert affidavit from a physical therapist opining that utilizing a slide board transfer with minimal assistance did not deviate from the accepted standard of care and noting, based on a review of Clark's records, that Clark had successfully completed slide board transfers with minimal or moderate assistance on prior occasions (see Fuller v Aberdale, 130 A.D.3d 1277, 1282-1283 [2015]; Doucett v Strominger, 112 A.D.3d 1030, 1031-1032 [2013]; Bickom v Bierwagen, 48 A.D.3d 1247, 1247 [2008]; Suib v Keller, 6 A.D.3d 805, 806 [2004]). Thus, "the burden shifted to plaintiff to present expert medical opinion evidence that there was a deviation from the accepted standard of care" (Carter v Tana, 68 A.D.3d 1577, 1579 [2009]; see Fuller v Aberdale, 130 A.D.3d at 1283; Longtemps v Oliva, 110 A.D.3d at 1318).

         In opposition, plaintiff submitted, among other things, the affidavit of an orthopedic surgeon, Matthew J. Nofziger. Even assuming that Nofziger was qualified to provide an opinion with respect to the standard of care used in the physical therapy field for the purpose of assessing the appropriateness of transfer procedures (see generally Matott v Ward, 48 N.Y.2d 455, 459 [1979]), we find his affidavit to be insufficient to raise a triable issue of fact. Although Nofziger criticized the assessment of Clark's physical and cognitive abilities prior to the slide board transfer, he failed to identify or define the applicable standard of care appropriate in this case, merely asserting, in a conclusory manner, that Clark required a higher level of assistance than was provided to her (see DeLaurentis v Orange Regional Med. Ctr.-Horton Campus, 117 A.D.3d 774, 775 [2014]; Snyder v Simon, 49 A.D.3d 954, 956 [2008]; see generally Alvarez v Prospect Hosp., 68 N.Y.2d 320, 325 [1986]). Nor did Nofziger set forth any particular actions or procedures that could have prevented Clark from falling, thereby failing to establish the requisite nexus between the alleged malpractice and plaintiff's injury (see Yamin v Baghel, 284 A.D.2d 778, 779-780 [2001]; Douglass v Gibson, 218 A.D.2d 856, 857 [1995]; compare Hranek v United Methodist Homes of Wyo. Conference, 27 A.D.3d 879, 880-881 [2006]). Therefore, even if considered, Nofziger's affidavit was patently insufficient to raise a triable issue of fact as to whether the transfer procedure used in this case deviated from the applicable standard of care (see DeLaurentis v Orange Regional Med. Ctr.-Horton Campus, 117 A.D.3d at 775; Martino v Miller, 97 A.D.3d 1009, 1011-1012 [2012]; Poblocki v Todoro, 49 A.D.3d 1239, 1240 [2008]; Passero v Puleo, 17 A.D.3d 953, 954-955 [2005]).

         Plaintiff's additional submissions, consisting of an attorney affidavit and Clark's medical records, were likewise inadequate to create an issue of fact. The affidavit of plaintiff's attorney, who had no personal knowledge of the operative facts, was without probative value and thus insufficient to defeat the motion (see Alvarez v Prospect Hosp., 68 N.Y.2d at 327; Zuckerman v City of New York, 49 N.Y.2d 557, 563 [1980]; Benaquista v Burke, 74 A.D.3d 1514, 1515-1516 [2010]). Further, Clark's medical records, showing that the short-term goal of physical therapy was to have her participate in a slide board transfer and that she had successfully completed such transfers with minimal assistance in the days preceding the alleged incident, undermine plaintiff's contention that using a slide board transfer on the alleged incident date with a minimum level of assistance was inappropriate. Accordingly, even viewing the evidence in the light most favorable to plaintiff, she failed to raise a triable issue of fact sufficient to defeat defendants' motion (see Maki v Bassett Healthcare, 85 A.D.3d 1366, 1369 [2011], appeal dismissed17 N.Y.3d 855');">17 N.Y.3d ...


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