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Samer v. Desai

Supreme Court of New York, Second Department

January 15, 2020

Paul Yuri Samer, respondent,
v.
Saili Desai, et al., appellants, et al., defendant.

          Shaub, Ahmuty, Citrin & Spratt LLP, Lake Success, NY (Christopher Simone and Nicholas Tam of counsel), for appellants Saili Desai, Huntington Hospital Dolan Family Health Center, Inc., Huntington Hospital, and North Shore University Hospital.

          Rebar Bernstiel, New York, NY (Cathleen Kelly Rebar and Frank Kelly of counsel), for appellant Saloni Anand.

          Bartlett LLP, Mineola, NY (Robert G. Vizza of counsel), for appellants Ramanjit Bagga and Huntington Medical Group, P.C.

          Vaslas Lepowsky Hauss & Danko LLP (Mauro Lilling Naparty LLP, Woodbury, NY [Caryn L. Lilling and Katherine Herr Solomon], of counsel), for appellant Norman Sveilich.

          Meagher & Meagher, P.C., White Plains, NY (Rachel R. Gruenberg of counsel), for respondent.

          JEFFREY A. COHEN, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In an action, inter alia, to recover damages for medical malpractice, the defendant Saloni Anand, the defendants Ramanjit Bagga and Huntington Medical Group, P.C., the defendant Norman Sveilich, and the defendants Saili Desai, Huntington Hospital Dolan Family Health Center, Inc., Huntington Hospital, and North Shore University Hospital separately appeal from an order of the Supreme Court, Putnam County (Robert DiBella, J.), dated March 31, 2017. The order, insofar as appealed from by the defendant Saloni Anand, the defendants Ramanjit Bagga and Huntington Medical Group, P.C., and the defendant Norman Sveilich, denied their separate motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them. The order, insofar as appealed from by the defendants Saili Desai, Huntington Hospital Dolan Family Health Center, Inc., Huntington Hospital, and North Shore University Hospital, denied that branch of their motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

         ORDERED that the order is affirmed insofar as appealed from by the defendants Ramanjit Bagga and Huntington Medical Group, P.C.; and it is further, ORDERED that the order is reversed insofar as appealed from by the defendant Saloni Anand, the defendant Norman Sveilich, and the defendants Saili Desai, Huntington Hospital Dolan Family Health Center, Inc., Huntington Hospital, and North Shore University Hospital, on the law, the separate motions of the defendants Saloni Anand and Norman Sveilich for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them are granted, and that branch of the motion of the defendants Saili Desai, Huntington Hospital Dolan Family Health Center, Inc., Huntington Hospital, and North Shore University Hospital which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted; and it is further, ORDERED that one bill of costs is awarded to the plaintiff payable by the defendants Ramanjit Bagga and Huntington Medical Group, P.C., and one bill of costs is awarded to the defendant Saloni Anand, the defendant Norman Sveilich, and the defendants Saili Desai, Huntington Hospital Dolan Family Health Center, Inc., Huntington Hospital, and North Shore University Hospital, appearing separately and filing separate briefs, payable by the plaintiff.

         The plaintiff commenced this medical malpractice action in December 2012, alleging that a negligently performed cardiac catheterization procedure caused his right prosthetic hip to become infected, requiring a two-stage revision surgery with ongoing range-of-motion difficulties.

         The plaintiff's right hip had been replaced with a prosthesis in March 2008. Two years later, on June 30, 2010, he went to the emergency room at the defendant Huntington Hospital, where it was determined that he was suffering a heart attack and heart blockage. The defendant Ramanjit Bagga, a cardiologist, performed an emergency catheterization through the plaintiff's right femoral artery and vein, placed a stent in the proximal right coronary artery, and installed a temporary pacemaker. The plaintiff was discharged three days later.

         Between July 2010 and February 2011, the plaintiff was seen for follow-up care at the defendant Huntington Hospital Dolan Family Health Center, Inc. (hereinafter Dolan Family Health Center), where he was seen once by the defendant Saloni Anand, a family medicine physician, and several times by the defendant Saili Desai, also a family medicine physician. On February 8, 2011, the plaintiff reported right hip pain to Desai, who ordered a right hip X ray, and gave him an orthopedic referral. Two weeks later, the plaintiff saw the defendant Norman Sveilich, an orthopedist, at the defendant North Shore University Hospital (hereinafter NSUH). After subsequent medical imaging and testing directed by Sveilich, the plaintiff's hip was discovered to be infected with staphlococcus aureus, necessitating a two-stage revision total hip replacement surgery. The plaintiff alleges that Bagga and Huntington Hospital negligently performed the catheterization and that the defendants departed from good and accepted practice by failing to timely diagnose and treat a right psoas abscess and infection, which caused him to develop a methicillin-resistant staphylococcus aureus infection, and required additional hip replacement surgery and removal of infected muscle, among other things.

         After the completion of discovery, Anand and Sveilich separately moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them. Bagga and his employer, the defendant Huntington Medical Group, P.C., moved for the same relief as to them. Desai, Huntington Hospital, Dolan Family Health Center, NSUH, and the defendant North Shore Long Island Jewish Health System, Inc. (hereinafter NSLIJHS), also moved for the same relief as to them. In the order appealed from, the Supreme Court denied the motions, except that it awarded summary judgment dismissing the complaint insofar as asserted against NSLIJHS, upon finding that it was improperly named as a defendant in this action. The remaining defendants appeal.

         To prevail on a motion for summary judgment in a medical malpractice action, a defendant must make a prima facie showing either that there was no departure from accepted community standards of medical practice, or that any departure was not a proximate cause of the plaintiff's injuries (see Alvarez v Propsect Hosp., 68 N.Y.2d 320, 324; Matos v Khan, 119 A.D.3d 909, 910). Once a defendant has made such a showing, the burden shifts to the plaintiff to "submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician" (Alvarez v Prospect Hosp., 68 N.Y.2d at 324).

         Here, each of the moving defendants established their prima facie entitlement to judgment as a matter of law by the submission of the affirmations of the respective experts who opined that the treatment of the plaintiff at the relevant time did not depart from accepted ...


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