Frey v. Itzkowitz

Summary

The Appellate Division, First Department unanimously affirmed an order denying defendants' motion for summary judgment in a medical malpractice action. The court held that defendants made a prima facie showing through expert affidavits, but plaintiff's expert raised triable issues concerning the failure to perform an immediate colectomy and related treatment decisions.

Holdings

1. Defendants established a prima facie showing of entitlement to summary judgment through expert affidavits opining that their treatment complied with appropriate standards of care and did not cause or contribute to the decedent's pneumonia or death.
2. Plaintiff's expert raised questions of fact for a jury by opining that defendants departed from good and acceptable medical practice, that they should have ordered an immediate colectomy and informed the decedent of the risks and alternatives of continuing medication, and that the failure to perform immediate surgery deprived the decedent of a chance at recovery.
3. A gastroenterologist was qualified to opine on the treatment provided by the defendant gastroenterologist, including whether an immediate colectomy should have been ordered, because the opinion did not concern a particular surgical technique.
4. The objection that defendants' expert affirmations did not employ the language of CPLR 2106 was unpreserved because plaintiff raised it for the first time at oral argument, depriving defendants of an opportunity to cure the alleged defect.
5. The lower court's mistaken statement that plaintiff had pleaded a lack-of-informed-consent cause of action did not warrant reversal because the allegations under discussion were valid in connection with plaintiff's medical malpractice cause of action.

Questions Presented

1. Whether defendants established prima facie entitlement to summary judgment in a medical malpractice action through expert affidavits.
2. Whether plaintiff's expert raised triable issues of fact concerning departure from the standard of care and causation.
3. Whether plaintiff's gastroenterology expert was qualified to opine that an immediate colectomy should have been performed.
4. Whether an objection that defendants' expert affirmations failed to use the language required by CPLR 2106 was preserved for appellate review.
5. Whether the lower court's mistaken reference to a lack-of-informed-consent cause of action warranted reversal.

Disposition

affirmed