PAMELA J. MOYER, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ARLENE I. MOODY, DECEASED, PLAINTIFF-APPELLANT,
AJOY K. ROY, M.D., DEFENDANT-RESPONDENT.
KUEHNER LAW FIRM, PLLC, SYRACUSE, D.J. & J.A. CIRANDO,
ESQS. (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFF-APPELLANT.
SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (ANTHONY R.
BRIGHTON OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, NEMOYER, AND CURRAN,
from an order of the Supreme Court, Oswego County (Norman W.
Seiter, Jr., J.), entered March 24, 2016. The order granted
the motion of defendant for summary judgment.
hereby ORDERED that the order so appealed from is unanimously
reversed on the law without costs, the motion is denied and
the complaint is reinstated.
Plaintiff, individually and as executrix of the estate of
Arlene I. Moody (decedent), commenced this medical
malpractice and wrongful death action seeking damages for
decedent's injuries and death as a result of a pharyngeal
laceration sustained during an endoscopic ultrasound (EUS)
procedure performed by defendant. Plaintiff appeals from an
order granting defendant's motion for summary judgment
dismissing the complaint. We reverse.
decedent was being treated for complaints of abdominal pain,
nausea and vomiting, an ultrasound study of her abdomen
revealed an incidental finding of a small pancreatic cyst.
Defendant's initial consult note stated that "cysts
[of] this size are of no significance and can be followed
clinically and with ultrasound or CT." Defendant
testified at his examination before trial that he explained
to decedent that he "did not see any sign of
malignancy" and that a cyst of this small size in a
person with decedent's family medical history carried a
"small risk of malignancy." According to defendant,
he explained to decedent that treatment options included
monitoring the cyst over a period of time through ultrasound
or CT scans or performing an EUS with a fine needle biopsy of
the cyst. Defendant's office notes recite that decedent
had a family history of pancreatic cancer, and defendant
testified that decedent was "extremely worried"
about the cyst developing into cancer. According to
defendant, as a result of these concerns, decedent agreed to
undergo the EUS procedure. There is no dispute that defendant
injured decedent's pharynx during the EUS procedure and
that she died approximately one month later as a result.
moved for summary judgment dismissing the complaint and
submitted his own affidavit averring, inter alia, that he did
not deviate from the acceptable standard of care in offering
decedent the EUS procedure as a reasonable treatment option,
and he opined that he performed the procedure in accordance
with appropriate and accepted technique, notwithstanding the
resultant injury to decedent's pharynx.
opposed the motion with an affidavit of an expert, who opined
that the EUS procedure was not an acceptable treatment option
within the standard of care when a patient presents with a
pancreatic cyst of such a small size. According to
plaintiff's expert, the only medically acceptable choice
was to monitor the cyst over time with imaging scans.
Plaintiff's expert also opined that defendant departed
from the standard of care in failing to address
decedent's concern and worry with noninvasive treatment
and that the injury suffered by decedent during the EUS
procedure only occurs "when a doctor is doing the
procedure both wrongly and dangerously" (see
generally Stiles v Sen, 152 A.D.2d 915, 916-917).
support of his motion, defendant had the initial burden of
establishing as a matter of law that he did not depart from
the applicable standard of care (see Stukas v
Streiter, 83 A.D.3d 18, 24). Contrary to plaintiff's
contention, we conclude that defendant met his burden through
the submission of his own affidavit and deposition testimony,
and decedent's medical records (see Starr v
Rogers, 44 A.D.3d 646, 648).
opposition to the motion, plaintiff was required to
"submit evidentiary facts or materials to rebut the
prima facie showing by the defendant physician that he was
not negligent in treating plaintiff so as to demonstrate the
existence of a triable issue of fact" (Alvarez v
Prospect Hosp., 68 N.Y.2d 320, 324). " Summary
judgment is not appropriate in a medical malpractice action
where the parties adduce conflicting medical expert opinions.
Such credibility issues can only be resolved by a jury'
" (Hayden v Gordon, 91 A.D.3d 819, 821). It is
well settled that a medical malpractice cause of action may
be based upon the theory that the physician performed an
unnecessary surgical procedure on the patient and thereby
caused an injury (see Vega v Mount Sinai-NYU Med. Ctr.
& Health Sys., 13 A.D.3d 62, 63), and we conclude
that the affidavit of plaintiff's expert raised a triable
issue of fact with respect to that theory (see generally
Alvarez, 68 N.Y.2d at 324-325). Furthermore, inasmuch as
the affidavit of plaintiff's expert was as "
detailed, specific and factual in nature' " as
defendant's own affidavit with respect to the additional
theory that defendant was negligent in the performance of the
EUS procedure (Webb v Scanlon, 133 A.D.3d 1385,