Opinion
2013-12-27
Joseph P. SAWYER, Sr. and Donna L. Sawyer, Plaintiffs–Appellants, v. KALEIDA HEALTH, Defendant–Respondent.
Denis A. Kitchen, Jr., Williamsville, for Plaintiffs–Appellants. Gibson, McAskill & Crosby, LLP, Buffalo (Mark D. Arcara of Counsel), for Defendant–Respondent.
Denis A. Kitchen, Jr., Williamsville, for Plaintiffs–Appellants. Gibson, McAskill & Crosby, LLP, Buffalo (Mark D. Arcara of Counsel), for Defendant–Respondent.
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO AND WHALEN, JJ.
MEMORANDUM:
Plaintiffs commenced this medical malpractice action seeking damages for injuries allegedly sustained by Joseph P. Sawyer, Sr. (plaintiff) when one of defendant's employees inserted a catheter into plaintiff in connection with defendant's treatment of plaintiff. We conclude that Supreme Court erred in granting defendant's motion seeking summary judgment dismissing the complaint. Defendant had “ ‘the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby’ ” (Gagnon v. St. Joseph's Hosp., 90 A.D.3d 1605, 1605, 935 N.Y.S.2d 789; see Humphrey v. Gardner, 81 A.D.3d 1257, 1258, 916 N.Y.S.2d 430). Although defendant's expert, i.e., plaintiff's treating nurse, averred that neither she nor any of defendant's employees deviated from accepted medical practice, we agree with plaintiffs that the medical records submitted by defendant in support of the motion raise an issue of fact on that point with respect to plaintiff's treating nurse ( see Valenti v. Camins, 95 A.D.3d 519, 522, 943 N.Y.S.2d 504; see generally Humphrey, 81 A.D.3d at 1258, 916 N.Y.S.2d 430). In view of our determination, we do not consider the sufficiency of plaintiffs' submissions in opposition to the motion ( see Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
It is 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.