Summary
In Amsler, this Court affirmed an order granting the defendant physician's motion for summary judgment dismissing the complaint in a medical malpractice action.
Summary of this case from Stukas v. StreiterOpinion
April 28, 1986
Appeal from the Supreme Court, Dutchess County (Juidice, J.).
Order affirmed, with costs.
In May 1980 the plaintiff Suellen Amsler felt a lump in her left breast which ultimately resulted in a modified radical mastectomy being performed in October 1980. She complains that she was referred to the defendant Dr. O'Hara on June 23, 1980, for mammographic studies which were found to be normal. Dr. O'Hara is charged with malpractice in failing to properly interpret the X rays, in that the views were inadequate, and in that Dr. O'Hara did not personally physically examine her. Dr. O'Hara's sole participation was to review the four X-ray films taken by technicians.
In opposition to Dr. O'Hara's motion for summary judgment, the plaintiff submitted, inter alia, an affidavit by Dr. Martin Lehman, a radiologist. A liberal reading of Dr. Lehman's somewhat equivocal affidavit reveals, arguably, an opinion that Dr. O'Hara's conduct in not personally examining the plaintiff Suellen Amsler fell below the requisite standard of care. Totally absent from this affidavit, however, is any indication that this alleged departure by Dr. O'Hara was a proximate cause of any injury or damage to the plaintiff Suellen Amsler.
In opposing a motion for summary judgment, the plaintiffs were required to lay bare their proof (see, Zuckerman v. City of New York, 49 N.Y.2d 557; Robert C. Arrants, M.D., P.C. v. Robert J. Dell Angelo, M.D., P.C., 73 A.D.2d 633) and to "show facts sufficient to require a trial of any issue of fact" (Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067; CPLR 3212 [b]).
The requisite elements of proof in a medical malpractice case are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage. In Kletnieks v. Brookhaven Mem. Assn. ( 53 A.D.2d 169, 176), the rule was stated as follows: "Clearly, on a trial of a medical malpractice action, as in any negligence action, a verdict finding liability can be sustained only if the proof adequately demonstrates that the negligence claimed (i.e. the 'departure') is the 'proximate cause' of the injuries sustained (see, Foley v. Gillick, 39 A.D.2d 546; Woods v Pisillo, 35 A.D.2d 597; Peloro v. Abbondante, 35 A.D.2d 561; cf. Sherman v. Concourse Realty Corp., 47 A.D.2d 134)."
In laying bare their proof in a medical malpractice case, the plaintiffs are required to provide an affidavit of merit by a medical expert. The failure to submit an affidavit by a medical expert competent to attest to the meritorious nature of the plaintiffs' claim requires dismissal of the complaint (see, Reed v. Friedman, 117 A.D.2d 661; see also, Salch v. Paratore, 60 N.Y.2d 851; Canter v. Mulnick, 60 N.Y.2d 689; Stolowitz v. Mt. Sinai Hosp., 60 N.Y.2d 685; Wind v. Cacho, 111 A.D.2d 808; Vernon v Nassau County Med. Center, 102 A.D.2d 852).
As stated recently by the Court of Appeals in Fiore v. Galang ( 64 N.Y.2d 999, 1000-1001), the rule is as follows: "Moreover, in light of the plaintiffs' argument that the verified complaint should be accepted as an affidavit of merits (CPLR 105 [t]), we note that, except as to matters within the ordinary experience and knowledge of laymen, in a medical malpractice action, expert medical opinion evidence is required to demonstrate merit".
Although stated in a somewhat equivocal manner, arguably, Dr. Lehman's affidavit attests to a "departure" by Dr. O'Hara. However, the affidavit is totally silent as to the essential issue of proximate cause. The affidavit is devoid of any expression or opinion by Dr. Lehman that Dr. O'Hara's conduct, omissions or departures were a competent producing cause of any injury or damage to the plaintiff Suellen Amsler or caused a worsening of her condition. Further, there is not a word in Dr. Lehman's affidavit that timely, earlier intervention would have prevented her surgery or would have increased her chances for survival. The record does not contain even the "bland statement of opinion by a medical expert that the treatment rendered had been below acceptable standards and caused the plaintiff's injuries" as required by the Court of Appeals in Canter v Mulnick ( 60 N.Y.2d 689, 690, supra, emphasis added). Rubin, J.P., Lawrence, Eiber and Spatt, JJ., concur.