The case of WILLIAM DeSANTIS and ANN DeSANTIS, Plaintiffs, v. GARY ZITO, M.D., METROPOLITAN LITHOTRIPTOR ASSOCIATES, P.C. and METROPOLITAN UROLOGICAL SPECIALIST, P.C., Defendants, Index No. 109753/09 (Supreme Court, New York County, April 24, 2011).
In this case, the plaintiff suffered from an enlarged prostate. As such, he underwent a prostate photovaporization procedure performed by the defendant doctor. During the procedure, the doctor encountered a urethral stricture while advancing a scope. In an attempt to bypass the stricture the doctor applied “gentle continuous pressure.” Following the procedure, it was discovered that the plaintiff suffered a perforation of the bladder and urethra damage. Plaintiff claims that he will be required to use a catheter to void from his bladder that for the rest of his life.
A claim for medical malpractice was brought against the defendant doctor for making an error during the procedure and other claims against the co-defendants. During the course of litigation, the co-defendants moved for an order, pursuant to C.P.L.R. Rule 3212, granting them summary judgment and dismissing the claims against them. The essence of this motion is to tell that court by way of expert opinion that the co-defendants did not violate any specific standard of medical care and therefore cannot be found liable for the allegations of medical malpractice.
When a defendant in a malpractice action in New York moves for summary judgment, the law requires that there be “a prima facie showing of entitlement to judgment as a matter of law by showing ‘that in treating the plaintiff there was no departure from good and accepted medical practice or that any departure was not the proximate cause of the injuries alleged.’ Rogues v. Nobel, 73 A.D.3d 204, 206 (1st Dep’t 2010) (citations omitted). To satisfy the burden, a defendant in a medical malpractice action must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars. Id. Conclusory statements which do not address the allegations in the pleadings are insufficient to demonstrate entitlement to summary judgment. See Creean v. Sachs, 65 A.D.3d 101, 108 (1st Dep’t 2009). Failure to demonstrate a prima facie case requires denial of the summary judgment motion, regardless of the sufficiency of the opposition papers. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986).”
In considering the co-defendants’ motion, the court found that they failed to meet their initial burden in demonstrating that they are entitled to summary judgment and denied the motion. The court noted that the expert’s affidavit was highly conclusory, which is insufficient to support summary judgment. In addition, the co-defendants’ expert doctor failed to identify the standard of care that was alleged to be departed from by the plaintiffs, and failed to support conclusions with specific references to the medical records or other evidence in the case.personal injury attorney and medical malpractice lawyer.