Keith Orsi,, et al., Appellants,v.Susan Haralabatos,, et al., Respondents, et al., Defendants.

Brief

N.Y.February 13, 2013

To be argued by: Suffolk County Clerk's Index No. 2556512006 JOSEPH P. AWAD Time: 15 minutes QIourt of Appeals STATE OF NEW YORK KEITH ORSI, an infant by his parents and natural guardians, LISA ORSI and MICHAEL ORSI, and LISA ORSI and MICHAEL ORSI, individually, Appellants, against SUSAN HARALABATOS, M.D., STONY BROOK ORTHOPAEDIC ASSOCIATES, Respondents, RICHARD SCRIVEN, M.D., ZHANNA SIKORSKI, RPA-C, SHARON NACHMAN, M.D., DIVNA DJOKIC, M.D., LUCY PONTRELLI, M.D., and CHRISTOPHER CARLEO, M.D., Dated: July 12, 2012 Defendants. BRIEF OF APPELLANTS SILBERSTEIN, AWAD & MIKLOS, P.C. Attorneys for Appellants Keith Orsi, an infant by his parents and natural guardians, Lisa Orsi and Michael Orsi, and Lisa Orsi and Michael Orsi, individually 600 Old Country Road Garden City, New York 11530 (516) 832-7777 FRANKLIN COURT PRESS, INc:- 212-594-7902 (231-12) Reproduced on Recycled Paper Appellate Division No. 2010-096399 STATUS OF RELATED LITIGATION The Supreme Court, Suffolk County (Patrick A. Sweeney, J.) granted motions for summary judgment in this matter by defendants Sikorski, Nachman, Djokic, Pontrelli, and Carleo (which were unopposed by plaintiffs) and denied the motions by defendants Dr. Haralabatos and Stony Brook. (R.6-15.) The Supreme Court, Appellate Division, Second Department reversed Justice Sweeney's order to the extent of awarding summary judgment to defendants Dr. Haralabatos and Stony Brook, determining that plaintiffs had not raised an issue of fact as to whether defendants' alleged departures from standards of care caused the plaintiffs' injuries. (R. CA4.) This order was entered on November 22, 2011. (Id.) As no other defendants remain in the case this Order effectively ends the ability of the infant plaintiff to receive compensation for his injuries. This matter has not been tried nor has any trial been scheduled to date. It is presently stayed pending appeal. TABLE OF CONTENTS STATUS OF RELATED LITIGATION ............................................................... .i TABLE OF CONTENTS ....................................................................................... .ii TABLE OF AUTHORITIES ................................................................................ vii STATEMENT OF JURISDICTION AND PRESERVATION ........................... 1 PRELIMINARY STATEMENT ............................................................................ 2 QUESTIONS PRESENTED ................................................................................... 4 STATEMENT OF THE CASE ............................................................................... 5 Procedural History ........................................................................................... 5 Summary Judgment Record ............................................................................. 7 The Motion Court's Order ............................................................................. 13 The Appellate Division's Order .................................................................... 15 SUMMARY OF ARGUMENT ............................................................................. 18 ARGUMENT .......................................................................................................... 21 POINT I. THE APPELLATE DIVISION'S RULING WAS NOT BASED ON EVIDENCE IN THE RECORD, BECAUSE DEFENDANTS DID NOT SUBMIT EVIDENCE SHOWING THAT THE ACTS OF THE INFANT PLAINTIFF'S PARENTS WERE AN INTERVENING CAUSE OF THE INFANT'S INJURy ........................................................................................................ 21 ii A. THE RECORD DOES NOT PROVIDE A BASIS FOR THE APPELLATE DIVISION'S DETERMINATION THAT NO QUESTIONS OF FACT EXIST ON THE ISSUE OF CAUSATION ........................................................ 22 1. No expert testified that any acts or omissions by the plaintiff parents caused or contributed to the infant's injury ..................................................... 22 2. Even construing the facts in the light that most favors defendants does not change the outcome ........ 24 3. The Appellate Division's decision on the issue of causation must necessarily have been predicated on the basis that the missed visits were an "unforeseeable, intervening act." ............................... .26 B. THE SPECULATIVE, INCOMPLETE, AND UNPRESERVED NATURE OF DEFENDANTS' ASSERTED "UNFORESEEABLE, INTERVENING ACT" NEVER SHIFTED THE BURDEN OF OPPOSITION TO PLAINTIFFS .............................................. 31 POINT II. WHETHER ANY EVENT WHICH OCCURRED AFTER DEFENDANTS' SUB-STANDARD CARE WAS AN "UNFORESEEABLE, INTERVENING ACT" IS A QUESTION FOR THE JURy .......................................................................................... 33 A. THE ORDER IGNORES BINDING STATE PRECEDENT ............................................................................ 34 B. DEFENDANTS' NEGLIGENT ACTS WERE SUBSTANTIAL CAUSES OF THE INFANT PLAINTIFF'S INJURIES AND WERE THEREFORE A PROXIMATE CAUSE ......................................................... 37 111 C. WHETHER SUBSEQUENT ACTS OR OMISSIONS CONTRIBUTED TO OR PROXIMATELY CAUSED THE INJURY IS A QUESTION FOR JURY DETERMINATION .................................................................. 41 POINT III. THE ACTS OR OMISSIONS OF THE INFANT PLAINTIFF'S PARENTS DO NOT BAR HIS RECOVERY AGAINST DEFENDANTS ......................................................................... 46 A. THE GENERAL OBLIGATIONS LAW DOES NOT ALLOW A BAR TO RECOVERY BASED ON PARENTAL ACTS OR OMISSIONS .................................... .46 1. General Obligations Law § 3-111 is directed at preventing outcomes such as that dictated by the Order ........................................................................................ 46 2. The Order of the Appellate Division is inconsistent with precedent ......................................................................... 48 a. The Court of Appeals refuses to insert tort liability into the familial relationship and vice versa. ........ ....................................................................... 48 h. Lower New York courts refuse to allow parental negligence as affirmative claim or defense ............................................................................ 52 c. Out of state courts are consistent with New york ........................................................................ 55 B. THE ORDER IGNORES EITHER THE EXISTENCE OR THE SIGNIFICANCE OF § 3-111 .................................... 57 IV C. THE RECORD DOES NOT SUPPORT A FINDING THAT THE ACTS OR OMISSIONS OF THE INFANT PLAINTIFF'S PARENTS AMOUNTED TO NEGLIGENCE ......................................................................... 62 1. No duty existed between the infant plaintiff and his parents; as a matter of law, the parents cannot have been negligent .......................................................................... 62 2. The acts of the infant plaintiffs' parents were reasonable and do not show that they were negligent.. ...... 63 3. "Negligence" requires a showing of causation, which is absent here ........................................................................... 64 D. ANY PARENTAL ACTS OR OMISSIONS WERE AT MOST A SUBSEQUENT ACT WHICH WOULD HAVE CONTRIBUTED TO THE INJURY ONLY IN CONCERT WITH DEFENDANTS' NEGLIGENCE .............. 65 E. EVEN ASSUMING THE PARENTAL ACTS OR OMISSIONS AMOUNTED TO AN INTERVENING CAUSE, THIS DOES NO MORE THAN RAISE AN ISSUE FOR JURY DETERMINATION .................................. 66 1. General Obligations Law § 3-111 's policy considerations supersede those underlying the doctrine of intervening cause, and the "intervening cause" at issue here does not reach the threshold for submission to a jury ................................................................ 67 2. Even if the alleged parental negligence amounted to an intervening cause, it must be considered by a jury ............ 69 v POINT IV. LEST THE INFANT PLAINTIFF'S ABILITY TO CONTINUE PROSECUTING HIS CLAIMS OF MALPRACTICE BE PREJUDICED, PLAINTIFFS LISA ORSI AND MICHAEL ORSI ARE WILLING TO WITHDRAW THEIR DERIVATIVE CLAIMS ....................................................................................................... 75 CONCLUSION ....................................................................................................... 76 ADDENDUM VI TABLE OF AUTHORITIES STATUTES CPLR3018 ................................................................................................................ 54 CPLR5602 .................................................................................................................. 1 CPLR5611 .................................................................................................................. 1 Domestic Relations Law § 73 ........................................................................... .4 7, 48 General Obligations Law § 3-111. .......................... .48, 49, 50, 52, 53, 54, 59, 60, 67 NEW YORK CASES Court of Appeals Cases Alvarez v Prospect Hosp., 68 NY2d 320 (1986) ...................................................... 33 Argentina v Emery World Wide Delivery Corp., 93 NY2d 554 (1999) .................. .41 Bland v Manocherian, 66 NY2d 452 (1985) ............................................................ 34 Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931 (2007) ............... .24, 32, 35 Caldwell v Island Park, 304 NY 268 (1952) ............................................................ 63 Cohen v Hallmark Cards, 45 NY2d 493 (1978) ...................................................... 36 Colegrove v New York & N H R. Co., 20 NY 492 (1859) ............................... .41, 43 Crane v Long Is. College Hosp., 43 NY2d 984 (1978) ........................................... .43 Darby v Compagnie Nat 'I Air France, 96 NY2d 343 (2001) ................................... 62 vii Datiz v Shoob, 71 NY2d 867 (1988) .................................... 34!O 35, 36, 37,42,43,66 Derby v Prewitt, 12 NY2d 100 (1962) ..................................................................... 70 Derdiarian v Felix Contr. Corp., 51 NY2d 308 (1980) ..................................... 38, 69 Di Ponzio v Riordan, 89 NY2d 578 (1997) .............................................................. 71 DiSalvo v Armae, 41 NY2d 80 (1976) .................................................................... .48 Dunham v Canisteo, 303 NY 498 (1952) ................................................................ .43 Foley v State, 294 NY 275 (1945) ........................................................................... .41 Gardner v Fleckenstein, 3 NY2d 812 (1957) .................................................... .42, 74 Gronski v County oj Monroe, 18 NY3d 374 (2011) .................................... 24, 32, 35 Hamilton v Beretta US.A. Corp., 96 NY2d 222 (2001) .......................................... 62 Hartfield v Roper, 21 Wend 615 (1839) ................................................................. .47 Holodookv Spencer, 36 NY2d 35 (1974) ..................... .48, 49,50,51,53,56,57,63 Kalisch-Jarcho, Inc. v New York, 58 NY2d 377 (1983) .......................................... 34 Lannen v Albany Gas Light Co., 46 Barb 264 (1865) .............................................. 54 LaTorre v Genesee Mgmt., 90 NY2d 576 (1997) ....................... .3, 48, 49, 50, 51, 52 Leeds v New York Tel. Co., 178 NY 118 (1904) ................................................ 72, 73 Martinez v Lazaroff, 48 NY2d 819 (1979) ......................................................... 67, 73 McNulty v Shimm, 100 NY2d 227 (2003) ................................................................ 60 Miller v Board ofEduc., 291 NY 25 (1943) ............................................................. 74 V111 Nestorowich v Ricotta, 97 NY2d 393 (2002) ........................................................... 61 Palsgraj v Long Is. R.R. Co., 248 NY 339 (1928) ................................................... 71 Parker v Mobil Oil Corp., 7 NY3d 434 (2006) ........................................................ 32 Parvi v Kingston, 41 NY2d 553 (1977) .............................................................. 73, 74 Pike v Honsinger, 155 NY 201 (1898) ............................................................... 36, 61 Ravo v Rogatnick, 70 NY2d 305 (1987) .................................................................. .43 Rivera v Kleinman, 16 NY3d 757 (2011) ................................................................. 60 Sadowski v Long Island R. Co., 292 NY 448 (1944) ............................................... 63 Sanchez v State, 99 NY2d 247 (2002) ................................................................ 71, 73 Slater v Mersereau, 64 NY 138 (1876) ................................................................... .42 Suria v Shiffman, 67 NY2d 87 (1986) ..................................................................... .43 Sweet v Perkins, 196 NY 482 (1909) ...................................................................... .43 Swensson v New York, Albany Desp. Co., 309 NY 497 (1956) .............................. .40 Ventricelli v Kinney Car System Rent A Car, 45 NY2d 950 (1978) .................. 23, 67 Winegrad v NY. Univ. Med. Ctr., 64 NY2d 851 (1985) .......................................... 33 Wragge v Lizza Asphalt Constr. Co., 17 NY2d 313 (1966) .................................. .40 Zuckerman v City o/New York, 49 NY2d 557 (1980) ...................................... .22, 25 IX Appellate Division Cases Bacon v Celeste, 30 AD2d 324 (1st Dept 1968) ..................................................... .38 Barbuto v Winthrop Univ. Hosp., 305 AD2d 623 (2d Dept 2003) ......................... .41 Bello v NYC lransit Auth., 12 AD3d 58 (2d Dept 2004) ........................................ 63 Boyd v Town of Riverhead, 297 AD2d 31 0 (4th Dept 2002) ....................... .28, 52, 55 Bullis v Schuyler Heights, Inc., 276 AD 630 (3d Dept 1950) .................................. 59 Capicchioni v Morrissey, 205 AD2d 959 (3d Dept 1994) ....................................... 66 Chiarini v County of Ulster, 9 AD3d 769 (3d Dept 2004) ...................................... 22 Colao v St. vincent's Med. Ctf., 65 AD3d 660 (2d Dept 2009) .............................. 40 Corveddu v Blumner, 10 AD2d 712 (2d Dept 1960) ............................................... 52 Cox v Cheaib, 231 AD2d 841 (4th Dept 1996) ........................................................ 53 Dandrea v Hertz, 23 AD3d 332 (2d Dept 2005) ..................................................... 40 Datiz v Shoob, 125 AD2d 628 (2d Dept 1986) ........................................................ 34 DeMarco v Albany, 17 AD2d 250 (3d Dept 1962) .................................................. 52 Deutsch v Chaglassian, 71 AD3d 718 (2d Dept 2010) ........................................... 57 Donohue v Copiague Union Free School Dist., 64 AD2d 29 (2d Dept 1978) ....... 62 Fahey v AD Smith Corp., 77 AD3d 612 (2d Dept 2010) .............................. 27, 29, 69 Feinberg v Feit, 23 AD3d 517 (2d Dept 2005) ........................................ 13, 39,41,57 Fellin v Sahgal, 35 AD3d 800 (2d Dept 2006) ................................................... 14, 40 x Galvin v Cosico, 90 AD2d 656 (3d Dept 1982) ............................ 28, 38, 52, 53, 55, 58 Gardner v Friedrich, 25 AD 521 (4th Dept 1898) ............................................ .42, 74 Gray v Gouz, Inc., 204 AD2d 390 (2d Dept 1994) .................................................. 63 Halkias v Otolaryngology-Facial Plastic Surgery Assocs., PC., 282 AD2d 650 (2dDept2001) ............................................................................................. 41, 57 Hancock v Steber, 208 AD 455 (App Div 1924) .................................................... .44 Harris v City of New York, 147 AD2d 186 (1st Dept 1989) ................................... 25 Holodook v Spencer, 43 AD2d 129 (3d Dept 1973) ................................................ 56 In re Delgatto, 82 AD3d 1230 (2d Dept 2011) ....................................................... .25 Kelly v Metro. Ins. and Annuity Co., 82 AD3d 16 (1st Dept 2011) ........................ 52 Lastowski v Norge Coin-O-Matic, 44 AD2d 127 (2d Dept 1974) ............ 36, 53,63, 75 Latta v Siefke, 60 AD2d 991 (4th Dept 1978) .................................................... 55,57 Metcalfe v Rochester Ry. Co., 12 AD 147 (App Div 1896) ............................... .58, 75 M.F v Delaney, 37 AD3d 1103 (4th Dept 2007) ................................................ 52,53 Morales v Coram Mat 'Is Corp., 51 AD3d 86 (2nd Dept 2008) ......................... 22, 33 Ortiz v Kinoshita & Co., 30 AD2d 334 (1st Dept 1968) .......................................... 38 Pedersen v Balzan, 117 AD2d 933 (3d Dept 1986) ........................................... 52, 66 Pierre v Lieber, 37 AD3d 572 (2d Dept 2007) ................................................... 27,29 Pontello v County of Onondaga, 94 AD2d 427 (4th Dept 1983) ............................ 38 Xl Ryan v Fahey, 43 AD2d 429 (4th Dept 1974) ........................................................... 63 Salandy v Bryk, 55 AD3d 147 (2nd Dept 2008) ...................................................... 33 Shaffer v Kasperek, 79 AD2d 1 092 (4th Dept 1981 ) ............................................... 25 Shields v Baktidy, 11 AD3d 671 (2d Dept 2004) .................................................... .41 Somoza v St. Vincent's Hosp. and Med. Ctr., 192 AD2d 429 (1st Dept 1993) ....... 25 Stuart-Bullock v State, 38 AD2d 626 (3d Dept 1971) ............................................. 38 van v Clayburn, 21 AD2d 144 (1st Dept 1964) ...................................................... 52 Vaughan v St. Francis, 29 AD3d 1133 (3d Dept 2006) .......................................... 59 Wilkins v Khoury, 72AD3d 1067 (2dDept2010) .................................... 27, 28, 29, 30 Trial Court Cases Anderson v State, 48 Mise 2d 1061 (NY Ct CI 1966) .............................................. 60 Cardona v County of Albany, 188 Mise 2d 440 (Sup Ct, Albany County 200 1 ) ......................................................................................................... 54, 58 Favier v Winick, 151 Mise 2d 910 (Sup Ct, Suffolk County 1992) ................... 51, 54 Leasure v 1221-1225 Realty LLC, 25 Mise 3d 1226(A), 2009 NY Slip Op 52303U (Sup Ct, Kings County 2009) ......................................................................... 60 Rider v Speaker, 180 Mise 2d 999 (Sup Ct, Sullivan County 1999) ....................... 54 Searles v Dardani, 75 Mise 2d 279 (Sup Ct, Albany County 1973) ...................... .47 xu FEDERAL CASES United States Supreme Court Cases Tfashington & G. R. Co. v Hickey, 166 US 521 (1897) ........................................... 71 United States Court of Appeals Cases Hentschel v Baby Bathinette Corp., 215 F2d 102 (2d Cir. 1954) ........................... 71 Johnson v Kosmos Portland Cement Co., 64 F2d 193 (6th Cir. 1933) .................... 71 lexas &J.R. Co. v Carlin, 111 F 777 (5th Cir. 1901) ............................................. 71 District Court Cases Anglo-American Oil Co. v United States, 99 F Supp 767 (D NY 1951) ........... 71, 72 Banks v United States, 969 F Supp 884 (SD NY 1997) ........................................... 52 Wilson v Westmoreland Farms, 989 F Supp 451 (ED NY 1998) ...................... 47, 52 FOREIGN CASES Denver City Tramway Co. v Brown, 57 Colo 484, 143 P 364 (1914) ..................... 55 Evansville v Senhenn, 151 Ind 42,47 NE 634 (1897) .............................................. 58 Flaherty v Butte Elec. R.R., 40 Mont 454, 107 P 416 (1910) .................................. 56 Francis v Dahl, 107 P3d 1171 (Colo App 2005) ..................................................... 55 Gulesserian v Madison Rwys. Co., 172 Wis 400, 179 NW 573 (1920) ................... 56 Goller v White, 20 Wis2d 402, 122 NW2d 193 (1963) ............................................ 56 X111 LabiervPelletier, 665 A2d 1013 (Me 1995) ........................................................... 55 McKeon v Goldstein, 53 Del 24, 164 A2d 260 (1960) ....................................... 56, 73 MISCELLANEOUS Law Rev. Comm. Comments, 1935 Leg Doc 60(c) .................................... .47, 48, 54 PJI2:10 ...................................................................................................................... 63 PJI2:72 ...................................................................................................................... 68 Prosser & Keeton, Torts § 122 (5th ed 1984) ........................................................... 50 Prosser, Torts (4th ed 1971) § 41 ................................................................................................................. 65 § 42 ................................................................................................................. 60 § 44 ..................................................................................................... 23, 68, 70 § 45 ................................................................................................................. 60 Restatement (Second) of Torts § 439 ............................................................................................................... 43 § 440 ............................................................................................................... 23 § 441 ............................................................................................................... 23 § 488 ................................................................................................... 44, 47, 55 XIV STATEMENT OF JURISDICTION AND PRESERVATION Plaintiffs appeal the order entered in the Appellate Division on November 22, 20 11 (the Order or the Order on appeal; R. CA4-5), which reversed the order of the Supreme Court, Suffolk County denying defendants' motion for summary judgment (R. 6). This Order was final in that its reversal of the motion court's order granted summary judgment dismissing the plaintiffs' complaint against the last defendants remaining in the matter. (R. CA4-5; see CPLR 5611). This Court has jurisdiction to entertain this appeal pursuant to CPLR 5602 (a) (1) (I), based on the order entered on March 27, 2012 in which this Court granted plaintiffs' motion for leave to appeal. (R. CA2.) Questions as to the elements ofthe claims, i.e. medical malpractice, were raised and preserved at R. 1073-1080 (departures from standards of care) and R. 1079-1084 (showing how the departures proximately caused plaintiffs' injuries). Plaintiffs' discussion of defendants' failure to show prima facie entitlement to summary judgment on the issue of proximate cause is at R. 1061-1062. In view of this omission by defendants, it is not possible to identify where in the record the issue of intervening cause, first raised by defendants in their Appellants' Brief to the Second Department (see attached Addendum, excerpting briefs on appeal), is preserved. 1 PRELIMINARY STATEMENT This appeal arises from an order decided on two faulty grounds - on the Appellate Division's reliance on an argument which is absent from the record, and on the clash of two legal principles, which the Appellate Division resolved to the detriment of a four-year-old plaintiff. The Appellate Division's resolution of this clash was incorrect and, if sustained, would unravel decades of jurisprudence on the well-settled issues of imputed negligence and causation. As to the first issue, the record shows no basis for the Appellate Divison's implicit determination that intervening acts by the plaintiff parents severed the chain of causation between acknowledged triable issues of departures from standards of care and the infant's injuries. As to the second issue, the law is clear that in recovering damages, an infant cannot be held to answer for the negligence of its parent - yet the Order on appeal disregards this proposition. Instead, the Order acknowledges that triable issues exist as to negligent care provided by defendants, but holds that, in contravention of the record and as a matter of law, this care did not cause the infant plaintiff's injuries. This necessarily credits defendants' argument that the plaintiffs' own acts cut off the link between defendants' care and the infant's damages, thus rewarding defendants' efforts to avail themselves of "what is soundly forbidden directly" by inviting the courts of New York to view it as "paradoxically 2 ... recognized and available indirectly" (LaTorre v Genesee Mgmt., 90 NY2d 576, 579 [1997]). The Order thus ensures the infant plaintiff, four years old at the time of the events at issue, will never be compensated for his injuries for reasons that were never put to the motion court. Because ofthe inherent inconsistency ofthe Appellate Division's Order, and because of the upheaval to settled principles of tort liability that would result from its enforcement, the Order on appeal must be reversed, and the original denial of defendants' motion for summary judgment must be reinstated. 3 QUESTIONS PRESENTED Question 1. Having identified triable issues of fact as to defendants' departures from standards of care, did the Appellate Division err in reversing the motion court's determination that no issue of fact existed as to causation? Answer 1. Yes. Question 2. Having identified triable issues of fact as to defendants' departures from standards of care, did the Appellate Division's ruling on causation violate the policies enshrined in the General Obligations Law against imputing parental negligence to an infant? Answer 2. Yes. Question 3. Does the recognition that the infant plaintiff cannot be charged with any intervening acts between the defendants' negligence and infant plaintiff's injury compel a determination on these facts that triable issues exist as to causation? Answer 3. Yes. 4 STATEMENT OF THE CASE Procedural History Michael and Lisa Orsi (Mr. Orsi and Mrs. Orsi, respectively; collectively, parent plaintiffs), individually and as parents and natural guardians of Keith Orsi (Keith), filed a summons and complaint in this action for medical malpractice on September 12,2006 against defendant-respondents Susan Haralabatos, M.D. and Stony Brook Orthopedic Associates (Dr. Haralabatos and Stony Brook, respectively; collectively, defendants). (R. 43.) Plaintiffs also named several physicians who had treated Keith during his admission of May 4 to Stony Brook University Hospital, following his diagnosis of osteomyelitis. (R.43.) On or about March 5, 2009 plaintiffs discontinued the action against defendant Richard Scriven, M.D., who treated Keith after his diagnosis. (R. 1046.) On or about September 2, 2009 the remaining defendants including defendant-respondents filed motions for summary judgment. (R. 19.) The motions by Zhanna Sikorski, RPA-C, Sharon Nachman, M.D., Divna Djokic, M.D., Lucy Pontrelli, M.D., and Christopher Carleo, M.D., were granted without opposition. (R. 6-15.) Supreme Court, Suffolk County (Hon. Patrick A. Sweeney, 1.) denied the motions for summary judgment by defendants Susan Haralabatos, M.D., and Stony 5 Brook Orthopedic Associates. (R. 6-15.) Judge Sweeney found that while Dr. Haralabatos established her prima facie entitlement to judgment as a matter oflaw on the allegations of medical malpractice, "plaintiffs had raised triable issues of fact by submitting an affirmation by their expert as to specific allegations of deviations from the standard of care." (R. 15.) Thus, the lower court properly denied the motions by Dr. Haralabatos and by Stony Brook as Dr. Haralabatos' employer CR. 159.) On September 17,2010 defendants filed a Notice of Appeal from the order. CR. 1-5.) No other defendant appealed, and the case had been dismissed as to all co-defendants. The parties to the appeal timely filed their briefs. On October 21, 2011 the Second Department heard oral argument. On November 22,2011 it issued the Order on appeal, which was entered by the Clerk of the Court on the same day. The Order reversed the decision of the motion court insofar as appealed from and granted the motion by defendants seeking summary judgment and dismissal of the Complaint. This Order effectively ends the ability of the infant plaintiff - four years old at the time of the facts at issue - to receive compensation for his injuries, as no other defendants remain in the case. On December 30,2011 plaintiffs served a motion for an order granting leave to appeal to this honorable Court. The motion was filed on January 5, 2012. On March 27, 2012 this Court issued an order granting plaintiffs' motion. CR. CA2.) 6 Summary Judgment Record The record on appeal includes the following facts. On March 13,2004 four-year-old Keith Orsi fell from a trampoline, fracturing his left lateral condyle. (R. 169.) After an initial presentation to Brookhaven Hospital, Keith was transferred to Stony Brook University Hospital (SBUH) (R. 7), where defendant Dr. Haralabatos was his attending physician. (R. 169.) Dr. Haralabatos was an employee of defendant Stony Brook Orthopaedic Associates (Stony Brook). (R. 159.) On March 14 Dr. Haralabatos performed an open reduction, internal fixation surgery for displaced fracture of Keith's left lateral condyle. (R. 169.) The surgery necessitated the use of sterile wires to fix the fracture in position, which Dr. Haralabatos elected to leave protruding through Keith's skin. (R. 180, 184.) Antibiotics were administered peri- and post-operatively. (R. 176, 190.) Keith was discharged from SBUH on March 15. (R.199.) Keith's mother spent the next few days monitoring Keith's temperature, and on March 19 she noticed that it had been elevated for "two or three days." (R. 662.) She contacted Dr. Haralabatos' office, and was told to take Keith to his pediatrician, nonparty Dr. Radhakrishnan (R. 663), who gave him oral amoxicillin. (R. 212, 946.) The following day (March 20), Mrs. Orsi - still monitoring and 7 concerned about Keith's condition - brought Keith back to SBUH. He was found to have increased temperature and swelling at the pin site, with increased white blood cell count. (R. 211.) Keith was admitted that same day with infection and given IV Nafcillin. (R. 211,475.) Blood testing revealed, among other things, ESR of 57, C- Reactive Protein (C-RP) of 4.4, and white blood cell count of 13.1. (R. 227, 237.) These numbers indicated elevated levels of "non-specific indicators ofinfection." (R. 236-237, 486.) X rays of the left elbow were taken and did not show evidence of osteomyelitis or other loss of bone density. (R.223.) Dr. Haralabatos was Keith's attending physician during the March 20 admission. (R. 211, 513.) She testified that Keith had a skin infection around the pin sites as of March 19. (R. 225.) He was discharged from SBUH on March 22,2004, with an infection still present (R. 239-240), and with a prescription for 9 days of oral Augmentin. (R. 239, 248.) That is, this prescription would run out on March 31. On March 25, Dr. Haralabatos and PA Sikorski re-examined Keith. (R. 241.) X rays of the left elbow were taken and reported as a "limited study" (R. 829), which, per Dr. Haralabatos, meant that one could not see the "bony detail because of cast or other material that might be overlying it or technique." (R.245.) (This was the same type of X ray later taken on April 15, R. 823.) Dr. Haralabatos acknowledged that one "may not be able" to diagnose osteomyelitis with such a 8 study. (R.245.) Neither Dr. Haralabatos nor P A Sikorski ordered any blood testing during the March 25,2004 visit. (R.777-779.) Neither Dr. Haralabatos nor PA Sikorski took Keith's temperature during the visit. (R. 241.) Although fever can be a sign or symptom of infection, there is no indication in the March 25 note whether Dr. Haralabatos inquired about Keith's temperature, or whether she issued instructions for Mrs. Orsi to monitor Keith's temperature at home. (R. 235, 777-779.) Four days later, on March 29, Mrs. Orsi noticed that Keith was again symptomatic. Consistent with previous instructions (see R. 663), she took him back to Dr. Radhakrishnan and reported him to have swollen glands, a cough and a temperature of 102.5. (R. 946.) Keith was diagnosed with fever and upper respiratory infection. (R. 946.) He was prescribed what appears to be a Cephalosporin antibiotic and an expectorant. (R. 946.) The duration of the prescription is not noted. No blood tests were ordered. (R.946.) Per the instructions from the March 25 visit with Dr. Haralabatos, Keith was to return for examination to Dr. Haralabatos on April 8. (R. 777.) There is no evidence that Dr. Haralabatos instructed the Orsis to go for follow-up blood testing at any time before the scheduled April 8 return. The April 8 appointment was rescheduled. (R. 249, 775.) There is no evidence that Dr. Haralabatos instructed the 9 Orsis to go for follow-up blood testing at any time before the next visit on April 15. On April 15, Dr. Haralabatos and PA Sikorski re-examined Keith. (R. 363, 772.) Dr. Haralabatos ordered X rays of the left elbow, but like the March 25 X rays, they were a limited study. (R. 823.) Upon examination, Dr. Haralabatos observed "pussy drainage" and granulation tissue around one of the pins. (R.772.) Mild erythema was present. (R. 772.) Infection was questioned in the April 15 note (R. 772), which P A Sikorski testified was due to erythema as well as the "pussy drainage." (R. 367.) Dr. Haralabatos testified that there was possible continued infection around the pin sites. (R. 251.) Dr. Haralabatos removed the pins from Keith's elbow during the April 15 visit. (R. 251.) She also ordered blood testing (including white blood cell count, ESR, and C-RP) and an X ray. (R. 823.) Dr. Haralabatos did not prescribe any prophylactic antibiotics at this visit. (R.252.) The blood draw was completed on April 16. (R.253.) No temperature was taken during the April 15 visit. (R. 772-773.) Mrs. Orsi reported no fever (R. 772), but there is no indication that any instructions were provided on April 15 or at any other time to take and record Keith's temperature at intervals each day (see e.g. R. 250). Dr. Haralabatos asked to see the Orsis again in a week. (R.252.) But 10 only four days later, on April 19 , Mrs. Orsi brought Keith back to be examined by Dr. Haralabatos and P A Sikorski. CR. 769-771.) Dr. Haralabatos did not take Keith's temperature (R. 769-771), but erythema was noted on exam. CR. 257.) The blood testing values from April 16 for the white blood cell count, ESR, and C-RP were lOA (slightly elevated), 15 (high normal) and .3 (normal), respectively. CR. 257.) Dr. Haralabatos testified that infection was possibly present, and an antibiotic Cefzil was prescribed for 10 days. (R. 257-259.) This prescription was based on the three-day- old blood test that was drawn on April 16. (R.261.) Dr. Haralabatos did not order repeat blood work and there is no evidence she provided oral instructions for follow- up blood testing. (R. 260.) Unlike the March 25 and April 15 visits, there are no written notes referring to a follow-up visit. (Cf. R. 772, 777.) Despite the lack of any references to follow-up visits, Dr. Haralabatos testified that Keith was to return on April 22. (R.264.) However, this visit on April 22, a scheduled visit on April 29, and another visit on May 3 did not take place (two "no shows" and a cancellation are listed on a computer printout). (R. 264-265, 855.) Mrs. Orsi stated this was due to car problems (R. 682-683), and Dr. Haralabatos' testimony substantiates that she communicated these problems to defendants. (R. 264.) The record does not indicate whether the Orsis were contacted to reschedule Keith's appointments. (R.264-266.) 11 The next time Dr. Haralabatos and P A Sikorski examined Keith was on May 4, when "swelling since yesterday" was noted with pain. (R. 273, 801.) X rays of the left elbow showed significant osteopenia of distal humerus consistent with osteomyelitis. (R. 905.) Keith was referred to SBUH and admitted for "biopsy/culture in OR and long-term antibiotics." (R. 273.) Blood testing on May 5 revealed white blood cell count of9.3, ESR of70, and C-RP of 4.4. (R.922-923.) Cultures of Keith's elbow joint fluid yielded "rare Staph aureus." (R. 928.) Dr. Haralabatos testified that "rare" meant that a "few organisms" were seen. (R. 282- 283.) On May 5, Keith underwent an irrigation, debridement and aspiration of the left elbow. (R. 907.) He was diagnosed with osteomyelitis, and began long-term intravenous therapy. (R.932.) Keith endured theplacementofa "PIC" line (R. 957), and later, a Broviac catheter for administration of medication. (R.909.) Months of intravenous therapy ensued. (R. 966-972.) Keith's subsequent treatment records show damage to the left elbow joint from the osteomyelitis. (R.957-958.) Bone damage to the left humerus from the osteomyelitis impinges the growth plate, meaning that permanent injury has occurred to the humerus and elbow joint. 12 The Motion Court's Order In opposition to the initial motion in the Supreme Court, Suffolk County, plaintiffs submitted the affirmation of an expert orthopedic surgeon (R. 1065-1085), which is replete with opinions as to how defendants' departures from standards of care caused, contributed to, or were a substantial factor in bringing about the infant plaintiffs injuries. In the Second Department, the opinions of conflicting experts are sufficient to warrant a denial of summary judgment, see e.g. Feinberg v Feit, 23 AD3d 517, 519 (2d Dept 2005); thus, the Supreme Court's denial of the motion for summary judgment on this basis was correct. For example, plaintiffs' expert stated that Dr. Haralabatos departed from standards of care in failing to culture pus, analyze the drainage as "pus" vs. "exudate," take Keith's temperature, prescribe antibiotics on April 15, order followup serial blood testing, and take X rays, along with failure to properly rule out osteomyelitis despite questioning signs of infection on April 15 and 19. (R. 1073- 1080.) These acts are required by standards of care in that they rule out infection. (ld.) In addition to identifying specific departures, plaintiffs' expert repeatedly illustrated the causal connection between these departures and the infant's injury: • At R. 1079, para. 57, plaintiffs' expert stated that Dr. Haralabatos' departure from standards of care "was a substantial factor in causing the degree and extent of the 13 osteomyelitis ... with the resulting permanent injury and sequelae." • At R. 1080, para. 60, plaintiffs' expert stated that Dr. Haralabatos' departures "were substantial factors in causing the degree and extent of the osteomyelitis ('chronic osteomyelitis') which occurred, with the resulting permanent injury and sequelae. Alternatively, these departures were substantial factors in depriving Keith of a substantial chance of avoiding the degree and extent of the osteomyelitis which occurred, with the resulting permanent injury and sequelae." • At R. 1081, para. 64, plaintiffs' expert stated that "a substantial factor in causing [Keith's] bone infection was skin infection around the pin site which was not properly treated." • At R. 1081, para. 65, the expert connected this skin infection to the osteomyelitis and states that "Dr. Haralabatos' departures mentioned above were substantial factors in causing the degree and extent of the osteomyelitis (,chronic osteomyelitis') which occurred. (Alternatively, these departures were substantial factors in depriving Keith of a substantial chance of avoiding the degree and extent of the osteomyelitis)." • At R. 1083, para. 73, the expert noted that "there is a substantial chance that the degree and extent of the osteomyelitis which occurred would have been avoided" but for departures from standards of care by Dr. Haralabatos. (The Second Department has repeatedly reaffirmed that legally sufficient causation is found in a "diminution of a substantial chance of avoiding" the injury. See e.g. Fellin v Sahgal, 35 AD3d 800 [2d Dept 2006], and cases cited therein). 14 In denying defendants' motion, the Supreme Court properly determined that these expert opinions created questions of fact on the issue of causation. The Appellate Division's Order On appeal, defendants offered the novel argument that the failure by the mother of the four-year-01d infant plaintiff to appear at three follow-up visits - visits which were scheduled for April 22, 29, and May 3, i.e. after the malpractice had already taken place on April15 and 19 - amounted to an "unforeseeable intervening act" that severed the causal connection between defendants' negligence and the infant's injuries. (See App. Br. 33-39 at attached Addendum.) Apart from the fact that it was beyond the scope ofthe Appellate Division's ability to consider (see Resp. Br. 36-39 at attached Addendum) and does not excuse malpractice that took place on April 15 and 19, before the missed visits (R. 1073-1080), this argument exactly contradicts both the letter and spirit of General Obligations Law § 3-111 (in an infant's action for personal injuries, "the contributory negligence of the infant's parent ... shall not be imputed to the infant"). This was the sole argument defendants raised to support their position that they did not cause the infant's injury. In opposition, plaintiffs cited evidence in the record showing triable questions of fact as to defendants' departures from standard practice before the 15 missed visits occurred (R. 1073-1080) and as to how these departures caused the infant's injury. (R. 1079-1083.) In response to defendants' new argument, plaintiffs next showed how defendants' submission of a new argument for the first time on appeal was improper and beyond the ability of the appellate court to consider. (See Resp. Br. 36-39 at attached Addendum.) Plaintiffs further showed how this argument ignores the provision of New York state law which governs such situations exactly, i.e. General Obligations Law § 3-111. (See Resp. Br. 41-45 at attached Addendum.) Finally, in addition to the points above, plaintiffs established that under settled case law, any negligence by the plaintiff parents would require evidence of the missed appointments to go to the jury at trial. (See Resp. Br. 45-51 at attached Addendum.) Despite the conflicting expert opinions, the Appellate Division, Second Department, ignored its own precedent and held that although plaintiffs raised triable issues of fact as to defendants' departures, "they failed to raise a triable issue of fact as to whether the alleged departures proximately caused the injured plaintiff's condition." Again, the only argument submitted that could support this holding was defendants' belated effort to impute acts and omissions by the plaintiff mother to the four-year-old infant plaintiff. The argument apparently relied upon by the Appellate Division - the 16 only argument that, in view of the conflicting expert affinnations, supports a holding that no triable issue exists as to causation - runs smack into an unambiguous statute that exactly applies to the facts of this case, i.e. General Obligations Law § 3-111. Beyond issuing decisions that fly in the face of state law, the Appellate Division implicitly granted its blessing to defendants' newly submitted argument, which was never raised to the motion court and thus never required opposition by plaintiffs. The Order issued by the Appellate Division offends well-established principles oflaw and policy and should be reversed. 17 SUMMARY OF ARGUMENT The Order on appeal is premised on a misapplication of inapposite law, and requires reversal for a multitude of reasons. On a record where each departure identified by plaintiffs' expert amounted to a failure to take the steps that would have led to timely intervention in the process of osteomyelitis on April 15 or April 19 , the Appellate Division agreed that plaintiffs submitted adequate expert evidence to raise issues of fact as to Dr. Haralabatos' departures from standards of care - yet it paradoxically held that plaintiffs' expert did not raise an issue of fact as to causation. The Appellate Division failed to appreciate the significance ofthe record when it concluded that "[ w ]hile the plaintiffs, in opposItIon, submitted an affirmation from an expert physician that raised triable issues of fact as to whether Dr. Haralabatos may have departed from good and accepted practice, they failed to raise a triable issue of fact as to whether the alleged departures proximately caused the injured plaintiff's condition." (R. CA5.) Analysis of the Order and the arguments submitted below provides no basis for this holding apart from defendants' contention that the missed visits were a superseding cause of Keith's injury. This premise is unsupported by the record and contravenes New York law and policy as exemplified by General Obligations Law § 3-111 (prohibiting the imputation of a parent's negligence to an infant plaintiff). 18 It is out of step with prior holdings of this Court, and well-established principles that require questions of causation to be submitted to a jury, and the legislative intent of General Obligations Law § 3-111, which is specifically aimed at preventing the result the Order on appeal suggests here. The Appellate Division did not expressly state that the Orsis' parental negligence was the interrupting factor in the chain of events between Dr. Haralabatos' negligence and Keith's injuries; it simply held in a conclusory manner that the plaintiffs failed to raise questions of fact as to causation. However, the determination that issues of fact exist as to defendants' departures precludes a determination that causation is absent based on adequate care. Rather, a review of the record indicates that the court could only have reached this determination by crediting defendants' argument, withheld from the motion court, that the dependency of four-year-old Keith on parents who were unable to bring him to his follow-up visits, scheduled after the malpractice had already taken place on April 15 and 19, was an "unforeseeable intervening act" that severed the causal connection between defendants' negligence and Keith's injuries. The Appellate Division's holding on causation was incorrect for three reasons. First, there is no evidentiary basis for its determination. Defendants' experts paid only passing attention to the issue of causation at all, and never addressed the 19 issue of the missed visits. Despite this, plaintiffs' expert explained that the missed visits did not excuse the negligence that had already taken place, and linked specific instances of that negligence to an increase in the infant plaintiff s injuries. Second, the Appellate Division misapplied the law on causation. Assuming, hypothetically, that any acts or omissions of Keith's parents were legally relevant, this at most creates a situation with multiple proximate causes. Even if this Court agrees with defendants' characterization of the parent's acts as an "unforeseeable intervening cause" of the infant's injuries, this is at most a question requiring determination by a jury. Finally, the laws of the State of New York expressly prohibit the imputation of a parent or custodian to an infant plaintiff. In determining that plaintiffs did not raise issues of fact as to causation, and in overlooking plaintiffs' expert opinion evidence describing each of the departures from standards of care as a substantial factor in Keith's injuries and/or explaining how each departure deprived him of a chance of avoiding infection, the Appellate Division's decision necessarily and improperly relied on parental actions as a basis for denying Keith's recovery. For any and all of these reasons, the Appellate Division's decision should be reversed, the motion court's decision reinstated, and defendants' motion for summary judgment denied. 20 ARGUMENT POINT I. THE APPELLATE DIVISION'S RULING WAS NOT BASED ON EVIDENCE IN THE RECORD, BECAUSE DEFENDANTS DID NOT SUBMIT EVIDENCE SHOWING THAT THE ACTS OF THE INFANT PLAINTIFF'S PARENTS WERE AN INTERVENING CAUSE OF THE INFANT'S INJURY. The Second Department's inconsistent Order resulted from its exclusive attention to defendants' novel argument regarding intervening cause, which (apart from resting on an event for which Keith, as a four-year-old infant, bears no responsibility) is not preserved in the motion papers. This argument was found at page 33 of their Appellant's brief (see attached Addendum). Defendants contended, without supporting statements by their experts or any other proof in the record, that the visits plaintiffs missed between April 22 and May 3 "constituted an unforeseeable intervening act that broke any causal nexus" between Dr. Haralabatos' negligent acts and Keith's infection. The speCUlative, incomplete, and unpreserved nature of this argument never succeeded in shifting the burden of opposition to the plaintiffs. The record is bereft of any discussion on this issue and cannot sustain the Order. 21 A. THE RECORD DOES NOT PROVIDE A BASIS FOR THE APPELLATE DIVISION'S DETERMINATION THAT NO QUESTIONS OF FACT EXIST ON THE ISSUE OF CAUSATION. 1. No expert testified that any acts or omissions by the plaintiff parents caused or contributed to the infant's injury. Defendants' experts acknowledge (at R. 131 and 140) that "It cannot be said with any degree of medical certainty when precisely Keith's osteomyelitis began." (The full extent of their opinions as to causation of Keith's injuries by Dr. Hara1abatos is found at R. 130-131 and R. 139-140.) This conclusion shows that neither defense expert is able to offer opinions as to what caused Keith's injuries (whether his inability to come to his appointments or anything else) because neither expert has an opinion on causation. Defendants' experts noted Keith's missed appointments (R. 127, 138) but they did not offer any opinions as to their significance. The point that these visits would have "intervened" in the causal chain is therefore "purely conclusory, as it is not based upon factual evidence in the record" (Morales v Coram Mat 'is Corp., 51 AD3d 86 [2nd Dept 2008]; Chiarini v County of Ulster, 9 AD3d 769, 770 [3d Dept 2004], citing Zuckerman v City of New York, 49 N.Y2d 557, 563 [1980]). "A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his 22 antecedent negligence is a substantial factor in bringing about" (Restatement (Second) of Torts, § 440, cited in Prosser, Torts, § 44 at 271 n 80 [4th ed 1971 D. "An intervening force is one which actively operates in producing harm to another after the actor's negligent act or omission has been committed" (Id. at § 441, cited in Prosser, Torts § 44 at 271 n 81). There is no evidence in this record that the missed appointments meet either standard for an event disrupting the causal chain between defendants' negligence and the infant's injuries. Neither defense expert ever explained that Keith's missed visits, which took place after the infection had seeded (R. 1079-1080), were the proximate cause of injury to the infant. (Cf Ventricelli v Kinney System Rent A Car, Inc., 45 NY2d 950, 951 [1978].) Neither defense expert ever stated or implied that returning with Keith prior to the May 4 visit would have resulted in earlier detection or prevention of his infection. There is no evidence in the record that Keith's result would have been any different ifhe had returned to Dr. Haralabatos on April 22, April 29, or May 3. There is no evidence in the record that shows the missed visits prevented Dr. Haralabatos' liability for the negligence that already occurred. There is no evidence in the record that shows the missed visits "actively operated" in producing harm to Keith. In fact, the only expert evidence in the record that addresses the issue of 23 the missed appointments head-on is plaintiffs' expert's statement at R. 1079 that "[w]hile Keith missed appointments on April 22nd, April 29th, and May 3rd, Dr. Haralabatos missed opportunities to properly treat the skin infection around the pin site and avoid the osteomyelitis which occurred due to such infection. Regardless of these missed appointments, Dr. Haralabatos could have, and should have, timely and properly treated the skin infection at the pin site spanning from the March 25th visit, to the April 15th visit, to the April 19th visit." Defendants failed to address this statement on reply. The Appellate Division's determination that questions of fact existed as to departures from standards of care on April 15 and April 19 should have at least led to a determination that questions of fact existed as to whether these amounted to "missed opportunities to properly treat the skin infection" that later led to osteomyelitis. 2. Even construing the facts in the light that most favors defendants does not change the outcome. It is well settled that a motion for summary judgment requires a court to view the evidence in the light most favorable to the party opposing the motion (Gronski v County of Monroe, 18 NY3d 374 [2011]; Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931 [2007]). However, even playing the devil's advocate and considering the evidence in the light most favorable to the movants, there is no basis 24 in the record to sustain the Appellate Division's Order. The only item that could be construed as an argument on the issue of the missing appointments was a statement in an unsupported attorney's affirmation that these appointments "deprived defendants of the opportunity to evaluate the infant plaintiff at that critical time and make[] it impossible to detennine when precisely before the diagnosis ... the osteomyelitis began or became apparent." (R. 25.) (Plaintiffs' expert rebutted this argument at R. 1079-1080.) A party's entitlement to summary judgment may be premised on the affirmation of an attorney only so long as it is based upon documentary evidence (Zuckerman v City o/New York, 49 NY2d 557 [1980]). Statements solely contained in an attorney's affirmation are not in "evidentiary form" (Shaffer v Kasperek, 79 AD2d 1 092 [4th Dept. 1981]), and thus cannot be considered on a summary judgment motion (In re Deigatto, 82 AD3d 1230 [2d Dept 2011]; Harris v City o/New York, 147 AD2d 186, 189 [1st Dept 1989] [a "bald conc1usory assertion" by counsel "can be given no evidentiary value"]). Although the deficiency of defendants' argument did not require a response (Somoza v St. Vincent's Hosp. and Med. Ctr., 192 AD2d 429 [1st Dept 1993]), plaintiffs' expert addressed causation and raised a triable issue on this point. (R. 1058-1061, 1079-1085.) In an attempt to plug the gaps in their original motion, defendants filed 25 a reply affirmation which alludes to non-specific law and facts CR. 1105), but none of these efforts can be construed as supporting their new issue on appeal. For example, there is no jurisprudential support for defendants' conc1usory assertion that where a defendant has shown no departures from standards of care, no discussion of causation is necessary. CR. 1105.) Defendants' reiteration of their flimsy argument in reply CR. 1102) does not form a basis to sustain the Appellate Division's Order. In sum, an unsupported attorney's affirmation does not suffice as proof on the element of causation, and there is no argument in the record that the three no- show appointments amounted to a "superseding" or "intervening" cause. 3. The Appellate Division's decision on the issue of causation must necessarily have been predicated on the basis that the missed visits were an "unforeseeable, intervening act." The Appellate Division did not explicitly state that Keith's parents' acts or omissions were an interrupting factor in the chain of events between Dr. Haralabatos' negligence and Keith's injuries; it simply held in a conc1usory fashion that the plaintiffs failed to raise questions of fact as to causation. But the Order on appeal confirms that "the plaintiffs . . . submitted an affirmation from an expert physician that raised triable issues of fact as to whether Dr. Haralabatos may have departed from good and accepted practice." CR. CAS.) Based on the nature of the 26 departures (i.e. a failure to take the steps that would have aided in the diagnosis or prevention of osteomyelitis), it was inconsistent and essentially impossible for the Appellate Division to have found a lack of causation on the basis that defendants complied with standards of care. Rather, a review of the record and the briefs on appeal shows that the court could only have reached this detennination by crediting defendants' one argument - that the inability ofthe four-year-old infant plaintiff, due to his dependence on his parents, to appear at three follow-up visits which were scheduled after the malpractice had already taken place on April 15 and 19, amounted to an ''unforeseeable intervening act" that severed the causal connection between defendants' negligence and the infant's injuries. That the decision was issued on this basis is substantiated by the authority cited in the Appellate Division's decision on this issue, specifically Wilkins v Khoury (72 AD3d 1067,1068 [2dDept20l0], citing Pierre v Lieber, 37 AD3d 572, 573 [2d Dept 2007]), and Fahey v A.O. Smith Corp. (77 AD3d 612, 616 [2d Dept 2010]). While these cases are instructive as to the Appellate Division's reasoning, they have nothing to do with the facts at bar. For example, it is telling that the Second Department cited Wilkins in support of its conclusion. Though Wilkins noted issues of fact as to departures, it held that "[ t ]he plaintiff s voluntary act of not going to the hospital for intravenous 27 antibiotic treatment when she was instructed to do so by an orthopedic surgeon, who saw the plaintiff after she was treated by the defendants, was independent of and far removed from the defendants' conduct and, thus, was a superseding act which broke the causal nexus" (72 AD3d at 1068). On superficially similar facts, Wilkins provides an insight into the Appellate Division's reasoning here, but these two cases involve critical distinctions. In Wilkins, the plaintiffs act was noted to be voluntary. Additionally, in Wilkins, the plaintiff was an adult, and the fact that she was seen by a subsequent physician after her treatment by defendants was treated as a dispositive factor. But in this case, the injured plaintiff is a child, not an adult. A four-year-old infant is considered non sui juris (Boyd v lown oj Riverhead, 297 AD2d 31 0 [4th Dept 2002]; Galvin v Cosico, 90 AD2d 656 [3d Dept 1982]). A case involving voluntary conduct by an adult is therefore inapposite. Furthermore, in Wilkins it was the plaintiffs failure to follow specific instructions of a subsequent treater that was determined to be a superseding cause. Here, however, there were no specific instructions (there is also an issue of fact as to whether Mrs. Orsi was even instructed to return on April 22 - the record does not reflect the need for a follow-up appointment as of April 19 [R. 769], as it does for the visit of April 15, R. 772). The last physician Keith treated with was the defendant Dr. Haralabatos herself, not someone subsequent, thereby 28 providing Dr. Hara1abatos with a further opportunity to intervene that was not present in Wilkins. Therefore Wilkins is informative, but not controlling. Pierre (supra), cited in Wilkins, is no more persuasive. It held that no issues of fact existed on causation where the plaintiff did not offer expert witness evidence at trial to prove that defendants caused his injuries, which stemmed from a failure to diagnose fetal distress, and where acts by other parties in an attempt to alleviate the distress were thus superseding acts that broke the causal nexus. Here, however, plaintiffs relied on the affirmation of an expert which described repeatedly the connections between Dr. Haralabatos' departures and Keith's injuries. Moreover, here there was no act which Keith can be held to answer for that broke the causal nexus between Dr. Hara1abatos' departures and Keith's injuries. Therefore Pierre is not controlling. Fahey (77 AD3d at 616) - the other case the Appellate Division cited in deciding that plaintiffs had not raised an issue of fact on causation - does not support the Appellate Division's determination any more than Wilkins. To the contrary, it offers support for plaintiffs' argument that the instant case should be tried before a jury. In Fahey, the defendant water heater manufacturer had successfully argued to the trial court that, after the defectively-designed pilot light on a water heater ignited gas vapors, the nexus between its negligence and injuries to the plaintiff firefighters 29 was broken by negligence on the part of the defendant property owner, who stored flammable substances near the heater and failed to install a fire suppression system. The Appellate Division reversed the award of summary judgment to the manufacturer, reiterating that "Defendants are liable for all normal and foreseeable consequences of their acts, and the plaintiffs need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable. An intervening act constitutes a superseding cause sufficient to relieve a defendant ofliability if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct. The causal link may also be severed when the intervening act was divorced from and not the foreseeable risk associated with the original negligence, or if the defendant's act merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated. Questions concerning what is foreseeable are usually for the trier of fact." (Id. [internal quotations and citations omitted].) Theoretically, this case could have been cited as readily to uphold the denial of Dr. Haralabatos' motion for summary judgment. Thus, like Wilkins, it does not mandate that the motion should have been granted. The cases cited in the Order reveal the Order's improper basis. They are not analogous to these facts. 30 B. THE SPECULATIVE, INCOMPLETE, AND UNPRESERVED NATURE OF DEFENDANTS' ASSERTED "UNFORESEEABLE, INTERVENING ACT" NEVER SHIFTED THE BURDEN OF OPPOSITION TO PLAINTIFFS. As shown above, defendants' argument regarding intervening cause is not supported by the expert opinion evidence necessary to sustain the Appellate Division's holding. (See Point I [a] [1], supra.) The speculative contention that "Dr. Haralabatos might have detected Keith Orsi' s osteomyelitis and ordered appropriate treatment on April 22, April 29, or May 3, 2004" (see App. Br. 39 at attached Addendum) (emphasis added), raised for the first time on appeal, forms the premise for their entire argument, and thus for the Appellate Division's decision. This speculative contention cannot be allowed to deny recovery to a four-year-old child. Defendants' argument that Dr. Haralabatos "might have" detected Keith's infection during one of the missed appointments assumes that on examination, Dr. Haralabatos would have seen some sign of infection that Keith's parents missed, and would have properly investigated. The record does not bear this out. Mrs. Orsi specifically testified that during the month of April, "everything was kind of quiet" with respect to Keith's symptoms. (R. 685.) When he was symptomatic, for example on March 29 when he exhibited swollen glands, a cough, and a temperature, Mrs. Orsi ensured he received treatment. (R. 946.) When Keith 31 was in Dr. Haralabatos' office on April 15 and 19, she failed to thoroughly investigate his condition, thereby allowing plaintiffs' expert to identify several departures from standards of care on these dates. (R. 1073-1080.) The Appellate Division agreed that questions of fact existed as to these departures. Given Dr. Haralabatos' negligence when Keith was present in her office, it is pure speculation to conclude that she would have undertaken some further investigation in an asymptomatic patient if he had returned on any of the missed dates. This speculation does not require Keith to suffer for the acts or omissions of his parents in defiance of the strong prescriptions in favor of General Obligations Law § 3-111. (See Point III [A], infra.) This speculation does not account for Dr. Haralabatos' responsibility to rule out infection, as reflected by the X rays she ordered on April 15th. (R. 245, 1079.) This speculation is not supported by the evidence of defendants' experts; they offered only vague, unreliable statements (see Parker v Mobil Oil Corp., 7 NY3d 434 [2006]) that the eventual development of osteomyelitis does not inevitably lead to the conclusion that Dr. Haralabatos was negligent (R. 130, 139). This speculation, on a motion for summary judgment where all the evidence must be viewed in the light most favorable to the party opposing the motion (Gronski, supra; Branham, supra), is inadequate to support defendants' 32 entitlement to judgment as a matter of law (see generally Salandy v Bryk, 55 AD3d 147, 158-159 [2nd Dept 2008]; Morales, supra). The burden never shifted to plaintiffs to oppose this issue (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v NY. Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and the Appellate Division's decision on this point should be reversed. POINT II. WHETHER ANY EVENT WHICH OCCURRED AFTER DEFENDANTS' SUB-STANDARD CARE WAS AN "UNFORESEEABLE, INTERVENING ACT" IS A QUESTION FOR THE JURY. As discussed above, the only discemable basis for the Appellate Division's decision (in light of its identification of questions of fact regarding departures from standards of care) was its acceptance of defendants' argument that Keith's missed visits were an "unforeseeable intervening act" that broke the causal link between the departures and injuries. New York jurisprudence, however, requires the question of whether plaintiffs' negligence caused or contributed to Keith's osteomyelitis to be considered by a jury, on several grounds. First and most dispositively, this case is virtually identical to one decided earlier by this Court. This requires the reversal of the Order as inconsistent with binding precedent. To parse the issue further, the law requires questions of substantial factors, successive acts, and 33 even intervening acts to be decided by a jury. The matter was required to be submitted to a jury for anyone of a number of reasons, and the Order must be reversed insofar as it inexplicably ignores all of them. A. THE ORDER IGNORES BINDING STATE PRECEDENT. Instead of the cases the Appellate Division incorrectly attempted to analogize (see Point I [A] [3] supra), it is clear that the significant facts now before the Court are consistent with Datiz v Shoob (71 NY2d 867 [1988], affg 125 AD2d 628 [2d Dept 1986]). To date, this case remains good law and the courts of the State of New York, including the Second Department, are bound to follow it (Bland v Manocherian, 66 NY2d 452,459 [1985]; Kalisch-Jarcho, Inc. v New York, 58 NY2d 377, 388 [1983]). The longstanding principle of stare decisis requires the Order's reversal. Datiz involved an infant plaintiffwho brought a case against successive treating physicians. The appeal came from a jury verdict for the plaintiff and apportionment of merely 10% liability to defendant-appellant Shoob. On appeal, the Second Department held that a jury could have found a "valid line of reasoning" to resolve that the defendant had not performed a critical procedure, and that the negligence of a subsequent treating physician did not interrupt the defendant's 34 "independent duty to conduct a proper pediatric examination" (125 AD2d at 630). In reviewing the Appellate Division's decision, this Court agreed that a jury could have concluded that the defendant "had been independently negligent" in treating the infant, that this negligence proximately caused the injuries, and that the initial tortfeasor defendant could not escape liability by citing subsequent negligence (71 NY2d at 868). The facts of this case compel a finding of triable questions on defendants' liability even more strongly than the facts in Datiz. Here, plaintiffs' expert affidavit (R. 1065-1085) made a prima facie showing of departure and proximate cause on a fact pattern similar to the precedent set by Datiz. Plaintiffs' expert affirmation (R. 1065-1085) shows that Dr. Haralabatos had an "independent duty" to rule out infection, and that she had multiple opportunities to do so. Dr. Haralabatos is in the same position as the defendant-appellant in Datiz - she did not discharge her duty and plaintiffs' expert evidence showed this negligence was the proximate cause of the injury. Furthermore, this Court sustained liability against the defendant in Datiz on a much different standard than that here. The Order now on appeal is from a motion for summary judgment, wherein all facts must be viewed in a light most favorable to plaintiffs (Gronski, supra; Branham, supra), as opposed to the judgment 35 appealed in Datiz, which simply required the court to rule out the possibility that there was "no valid line of reasoning ... which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence" (Datiz, 125 AD2d at 630, citing Cohen v Hallmark Cards, 45 NY2d 493 [1978]). Additionally, the subsequent tortfeasor in Datiz was another physician with his own independent duty to exercise due care and skill (see Pike v Honsinger, 155 NY 201,209 [1898]). If the failure of a physician to exercise the care required of the profession cannot intervene in and supersede the original negligence, then how can the act of a layperson? This question is especially salient where the layperson is a parent who is "held to no higher standard of care than the measure of their own physical, mental and financial abilities to provide for the well-being of their child" (Lastowski v Norge COin-O-Matic, 44 AD2d 127, 129 [2d Dept 1974]; see Point III [C] [1], infra), and thus cannot be faulted for a breach of a duty, unlike defendant Dr. Haralabatos. The record before this Court does not reflect an intervening negligent physician - it reflects a mother who brought her 'son to every appointment (with one exception for what was apparently a routine followup on April 8) from the date of his initial elbow fracture on March 13 through April 19. When he was symptomatic (as on March 19, R. 662-663) or required a specific test (as with blood work on April 16, R. 253), Mrs. Orsi ensured Keith was seen and treated. Only when the Orsis had car 36 trouble was Mrs. Orsi unable to bring Keith to consecutive appointments. The Appellate Division's draconian ruling holds parents and custodians of infants to an unacceptably high standard. It would screen out claims on behalf of infants that were brought by any parents but the most impeccably attentive and resource-rich. The risk that years of litigation would ultimately result in dismissal based on an alleged, fleeting omission to exercise the highest standard of parental care, or based on a temporary circumstance such as a broken-down vehicle, provides a strong disincentive for parents to attempt to recover for their injured children - assuming they could find representation willing to accrue the expenses necessary to prosecute such an uncertain claim. The Order represents a significant step in this direction and should be reversed. B. DEFENDANTS' NEGLIGENT ACTS WERE SUBSTANTIAL CAUSES OF THE INFANT PLAINTIFF'S INJURIES AND WERE THEREFORE A PROXIMATE CAUSE. The precedent this Court set in Datiz, supra, remains good law and nothing more is needed to compel the same result here. Thoroughness, however, requires a more detailed analysis of the sound and well-established principles on which Datiz rests. The law of causation in New York is well settled. "As a general rule, the 37 question of proximate cause is to be decided by the finder of fact, aided by appropriate instructions. . .. To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v Felix Contractor Corp., 51 NY2d 308,312 [1980]). The term "substantial," when used to charge a jury in a negligence case, "is used to denote the fact that negligence, in order to support a recovery, should have 'such an effect in producing the harm as to lead reasonable [persons] to regard it as a cause'" (Ortiz v Kinoshita & Co., 30 AD2d 334,336 [1st Dept 1968]; Bacon v Celeste, 30 AD2d 324 [1st Dept 1968]). "It is well established that '[where] there are several possible causes of an accident, for one or more of which a defendant is not responsible, a plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible'" (Pontello v County of Onondaga, 94 AD2d427, 430 [4th Dept 1983] [citing Stuart-Bullock v State, 38 AD2d 626,627 (3d Dept 1971), affd 33 NY2d 418]; see also Galvin, supra [upholding jury charges as to multiple proximate causes and charge that plaintiff, three years and 10 months of age at the time of the claimed malpractice, was incapable as a matter of law of contributory negligence, and that any negligence by infant's mother could not be ascribed to the infant]). 38 In opposition to the initial motion in the Supreme Court, Suffolk County, plaintiffs submitted the affirmation of an expert orthopedic surgeon (R. 1065-1085) which is replete with opinions as to how defendants' departures from standards of care caused, contributed to, or were a substantial factor in bringing about the infant plaintiff s injuries. In the Second Department, the opinions of conflicting experts are sufficient to warrant a denial of summary judgment (see e.g. Feinberg v Feit, 23 AD3d 517,519 [2nd Dept 2005]); thus, the Supreme Court's denial of the motion for summary judgment on this basis was correct and should have been upheld by the Appellate Division. For example, plaintiffs reiterate that in the following portions of the record, plaintiffs' expert repeatedly explained the causal connection between defendants' departures and the infant's injury: • At R. 1079, para. 57, plaintiffs' expert stated that Dr. Haralabatos' departure from standards of care "was a substantial factor in causing the degree and extent of the osteomyelitis ... with the resulting permanent injury and sequelae." • At R. 1080, para. 60, plaintiffs' expert stated that Dr. Haralabatos' departures "were substantial factors in causing the degree and extent of the osteomyelitis ('chronic osteomyelitis') which occurred, with the resulting permanent injury and sequelae. Alternatively, these departures were substantial factors in depriving Keith of a substantial chance of avoiding the degree and extent of the osteomyelitis which occurred, with the resulting permanent injury and sequelae." 39 • At R. 1081, para. 64, plaintiffs' expert stated that "a substantial factor in causing [Keith's] bone infection was skin infection around the pin site which was not properly treated." • At R. 1081, para. 65, the expert connected this skin infection to the osteomyelitis and states that "Dr. Haralabatos' departures mentioned above were substantial factors in causing the degree and extent of the osteomyelitis (,chronic osteomyelitis') which occurred. (Alternatively, these departures were substantial factors in depriving Keith of a substantial chance of avoiding the degree and extent of the osteomyelitis )." • At R. 1083, para. 73, the expert noted that "there is a substantial chance that the degree and extent of the osteomyelitis which occurred would have been avoided" but for departures from standards of care by Dr. Haralabatos. (The Second Department has repeatedly reaffirmed that legally sufficient causation is found in a "diminution of a substantial chance of avoiding" the injury. See e.g. Fellin v Sahgal, 35 AD3d 800 [2nd Dept 2006], and cases cited therein.) In reversing the Supreme Court's holding that these expert opinions created questions of fact on the issue of causation (or at a minimum that defendants' departures were substantial factors in causing Keith's infection), the Appellate Division ignored a plethora of case law that requires conflicting expert evidence to be submitted to a jury. (See Wragge v LizzaAsphalt Constr. Co., 17 NY2d 313,319 [1966], citing Swensson v New York, Albany Desp. Co., 309 NY 497,505 (1956) for the proposition that "Only a jury is constitutionally endowed with the right to pass on conflicting evidence, as well as the credibility of witnesses;" Dandrea v Hertz, 23 AD3d 332 [2d Dept 2005]; Colao v St. Vincent's Med. Ctf., 65 AD3d 660 [2d Dept 40 2009]; Shields v Baktidy, 11 AD3d 671, 672 [2d Dept 2004]; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 624 [2d Dept 2003]; Halkias v Otolaryngology-Facial Plastic Surgery Assocs., 1. c., 282 AD2d 650, 651 [2d Dept 200 1 ]; Feinberg, supra.) Plaintiffs have shown how the departures from standards of care by Dr. Haralabatos made possible the festering of his infection during the time when Keith's parents were unable to bring him to follow-up visits. Questions of subsequent causes, and the role played by each, are issues of fact that cannot be disposed of as a matter of law. Even in defendants' best-case scenario, questions of superseding cause are likewise factual questions. There is no basis here for the Appellate Division to have stripped the infant plaintiff of his right to a jury. C. WHETHER SUBSEQUENT ACTS OR OMISSIONS CONTRIBUTED TO OR PROXIMATELY CAUSED THE INJURY IS A QUESTION FOR JURY DETERMINATION. The law has been settled in New York for at least a century and a half: Where separate and independent acts of negligence combine to cause one injury, no single tortfeasor can hide from her or his own liability behind the negligence of the other (Colegrove v New York & N. H R. Co., 20 NY 492 [1859]; Argentina v Emery World Wide Delivery Corp., 93 NY2d 554, 560 n 2 [1999]; Foley v State, 294 NY 275 [1945]). "Where either of two independent acts of negligence may be found to 41 be concurring, that is, direct causes of an accident, the perpetrator of either or both may be found responsible for the whole harm incurred" (Sheehan v New York, 40 NY2d 496 [1976]), and "it is no defense for a person against whom negligence which caused damage is proved, to prove that another person assisted in contributing to the result" (Gardner v Friedrich, 25 AD 521 [4th Dept 1898], affd 163 NY 568 [1900] [affirming denial of motion for new trial by defendant contractor]). The facts before this Court are substantially identical to Datiz, supra, with one exception. As discussed above, the only difference between the instant facts and the facts in Datiz is that here, any alleged subsequent "cause" would have come at the hands of laypersons, not a physician. If Dr. Haralabatos can show in her brief why malpractice by a co-defendant physician does not bar liability by an initial tortfeasor but the inability of a parent to bring his or her child to the doctor should block the chain of causation, she is welcome to do so. But the law on successive causation in New York will provide a significant obstacle. For example, in an early case on this issue, Slater v Mersereau (64 NY 138 [1876]), this Court refused to relieve a defendant contractor ofliability for water damage that was jointly caused by the contractor and nonparty mason. It held instead that "the contractor and subcontractors were separately negligent, and although such negligence was not concurrent, yet the negligence of both these parties contributed 42 to produce the damages caused at one and the same time," thus sustaining the referee's finding ofliability against the defendant contractor (Id. at 147; Colegrove, supra; Sweet v Perkins, 196 NY 482 [1909]; see also Restatement [Second] of Torts § 439). Precedent in medical malpractice cases repeatedly recognizes joint responsibility among successive tortfeasors. This Court reiterated in 1952 that it is "well settled in this State that when there are several proximate or efficient causes contributing to death, the death may be attributed to any or all of those causes" (Dunham v Canisteo, 303 NY 498, 504 [1952]). "The question here is whether the defendants' acts or omissions to act substantially contributed to the decedent's death" (Id. at 505 [emphasis added]). For example, in a case involving negligent delay in diagnosis by successive physicians, the last physician's negligent failure to make the diagnosis does not relieve prior physicians of their negligence contributing to the delay in treatment (Datiz, supra). In a case involving brain damage at or near the time of birth, the pediatrician's negligent failure to correctly diagnose and treat a newborn's condition does not relieve the delivering obstetrician ofliability for failure to properly deliver the infant (Ravo v Rogatnick, 70 NY2d 305 [1987]; see also Suria v Shiffman, 67 NY2d 87 [1986]; Crane v Long Is. College Hosp., 43 NY2d 984 [1978]). Thus, hypothetically, if this case were about a subsequent treating physician 43 who failed to see and treat the infant plaintiff for a week, there is no question that this negligence would be considered a successive cause, not an intervening one. There is no reason why nonnegligent acts by a layperson and parent (see discussion infra at Point III [C]) should bar recovery to an infant plaintiff when negligence by a subsequent physician does not. This standard applies whether the subsequent acts transpire in concert or separately. "Where, although concert is lacking, the separate and independent acts or negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone might not have caused it" (Hancock v Steber, 208 AD 455,458 [App Div 1924] [quoting 38 Cyc. 488]; see also Restatement [Second] of Torts § 488 [Comment (c)] ["The rule stated in this Section is also applicable where the parent is not negligent in the custody of the child but where the effect of some other negligent act of his combines with the negligence of the defendant to bring bodily harm upon the child"]). Here, plaintiffs submitted a cornucopia of expert testimony to show departures from standards of care by Dr. Haralabatos, which to a reasonable degree of medical certainty lead directly and proximately to Keith's bone infection. It is a truism that no infection can fester where no infection is present. Plaintiff's expert established the likelihood, with a reasonable degree of medical certainty, that the 44 infection had seeded by the April 19 visit to Dr. Haralabatos at the latest. (R. 1081- 1084.) Thus, any appointments which Keith was unable to attend would have, at most, allowed the growth of an infection that already existed following Dr. Haralabatos' failure to detect and prevent it, and that would not have existed if Dr. Haralabatos had adhered to standards of care. Furthermore, in failing to acknowledge the possibility of multiple causes, the Appellate Division's decision is not only incorrect but becomes inherently contradictory. The departures noted by plaintiffs' expert - i.e. failures to culture pus, analyze the drainage as "pus" vs. "exudate", take Keith's temperature, prescribe antibiotics on April 15, order followup serial blood testing, and take X rays, along with the failure to properly rule out osteomyelitis despite questioning signs of infection on April 15 and 19 (R. 1073-1080) - are required by standards of care because they rule out infection. (Jd.) Thus, it is inconsistent to hold that Dr. Haralabatos could have departed from standards of care in failing to rule out infection, but could not have caused or contributed to the presence of the infection. For its failure to consider both the significance of New York state law and the significance of its own logical extension, the Order requires reversal. Even if this Court chooses to credit defendants' new argument on the merits, it should not allow this argument to bar an infant plaintiffs recovery as a 45 matter oflaw. The law is clear on its face that the question of experts' credibility on the issue of causation should have gone to a jury. POINT III. THE ACTS OR OMISSIONS OF THE INFANT PLAINTIFF'S PARENTS DO NOT BAR HIS RECOVERY AGAINST DEFENDANTS. New York state jurisprudence has long recognized the special status of infants, particularly those who are non sui juris, and refuses to allow the acts of others to be visited upon them. This policy is recognized at every level of the court system and has been codified in New York since 1935. The statute's significance comes into sharp focus through a review of its history, and the case law illustrates that the policies underlying the statute have longstanding support in New York and nationwide. A. THE GENERAL OBLIGATIONS LAW DOES NOT ALLOW A BAR TO RECOVERY BASED ON PARENTAL ACTS OR OMISSIONS. 1. General Obligations Law § 3-111 is directed at preventing outcomes such as that dictated by the Order. General Obligations Law § 3-111 (as added by L 1963, ch 576, § 1), provides that "In an action brought by an infant to recover damages for personal 46 injury the contributory negligence of the infant's parent or other custodian shall not be imputed to the infant." This reflects the policy in New York. (Searles v Dardani, 75 Misc 2d 279 [Sup Ct, Albany County 1973); Wilson v Westmoreland Farms, 989 F Supp 451, 453 [ED NY 1998]; cf Restatement [Second] of Torts § 488). This law is simply a reclassification of the earlier Domestic Relations Law § 73 (as added by L 1935, ch 796, § 1), which was enacted following a recommendation by the Law Revision Commission of the State of New York, 1935 Leg Doc 60[C]. Specifically, the Commission sought to remedy the "patent defect" in the law resulting from a century of cases in New York (Law Rev. Comm. Comments, 1935 Leg Doc 60[C] at 3), which, based on dicta in Hartfield v Roper (21 Wend 615 [1839]), adhered to the principle that "if there be any legal responsibility" for damages to an infant, "it lies upon" their "keepers" (Id. at 622). As of the codification of Domestic Relations Law § 73, only four states including New York retained the rule penalizing infants for their parents' sins; on the other hand, thirty-one states had never allowed such a barto recovery. Law Rev. Comm. Comments, 1935 Leg Doc 60[C] at 9,28-32. The Commission concluded "Since the rule is harsh to the point of extreme unfairness, since it protects property at the expense of life, and since there is absolutely no rational justification for it in legal theory or social policy, the rule should be abolished. Every court that has given any careful consideration to its 47 theoretical basis and social effect has repudiated it, and the unquestioning adherence to an 1839 dictum, unsupported by reason, is a discredit to the New York courts.~' (Id. at 43.) The desire to avoid these effects led the Law Revision Commission to recommend the enactment of Domestic Relations Law § 73, now General Obligations Law § 3-111, yet these are the same effects that result from the Appellate Division's ruling now before this Court. 2. The Order of the Appellate Division is inconsistent with precedent. a. The Court of Appeals refuses to insert tort liability into the familial relationship and vice versa. This Court has addressed the application of General Obligations Law § 3-111 at length on two previous occasions, in cases involving the refusal by New York courts to recognize claims of negligent parental supervision. (LaTorre v Genesee Mgmt., 90 NY2d 576 [1997] and Holodookv Spencer, 36 NY2d 35 [1974]; accord DiSalvo v Armae, 41 NY2d 80 [1976]). These cases represent the State's refusal to interfere in familial relationships, particularly those between parent and child (see e.g. LaTorre, supra at 580-581, citing Holodook, 36 NY2d at 50), and these cases guard against the parental dilemma of pursuing a claim on behalf of a child or avoiding the threat of placing their own parental conduct under a judicial microscope. 48 (LaTorre, supra at 580). The Appellate Division's Order presents an attempt to interfere with the united interests ofthe family unit and runs directly counter to these policies. Both Holodook and LaTorre considered claims against a parent for negligent supervision - Holodook in the context of direct liability to an infant, and LaTorre in the context of a third-party claim for contribution. In Ho lodo ok, a majority of this Court articulated the concern that "the allowance of a counterclaim or third-party complaint against a parent for negligent supervision of [the parent's] child would, we believe, be contrary to the legislative policy expressed in section 3-111 of the General Obligations Law because, in effect, it would result in imputation of the parent's negligence to the child. That enactment, formerly part of the Domestic Relations Law, was a legislative nullification of early decisions which allowed a jury to consider a defense in bar of contributory negligence on the part of a plaintiff child by imputing to the child the negligence of the parent in failing to provide reasonable supervision." (36 NY2d at 48-49 [internal citations omitted].) Based on the holding in Holodook, in a situation where the act that would bar an infant's recovery "arises from a parental duty," it may not be imputed to an infant. In 1997, this Court reaffirmed the policies behind General Obligations Law § 3-111 in the case of LaTorre, supra. In refusing to allow defendants' proposed 49 claim against the parents for contribution to go forward, this Court revisited Holodook and noted the "significant and fundamental policy concerns" on which it rested. These concerns included wedges in the family relationship, potentially unlimited parental liability for an "endless variety of caretaking scenarios," and the "specter and fear of ultimate boomerang liability [that] might well present parents with the conflicted choice of seeking legal redress on their child's behalf or anticipatorily avoiding having to defend their own caretaking conduct and actions in courts" (LaTorre, supra at 580). The Court also noted with approval the consistency between Holodook and General Obligations Law § 3-111. It determined that Holodook rested on "the importance of limiting potential legalistic litigation intrusions into families, reasoning that '[t]he mutual obligations of the parent-child relation derive their strength and vitality from such forces as natural instinct, love and morality, and not from the essentially negative compulsions of the law's directives and sanctions' [Holodook, 36 NY2d at 50]" (LaTorre, supra at 580-581). The LaTorre Court also noted the slippery-slope nature of imposing parental liability, recognizing that "'it is not possible to state an exact rule as to the scope of "parental discretion,'" for 'it is clear that the parent-child relationship remains a special one and that not every act or omission by a parent will be regarded as actionable negligence, even if, as to some other persons, negligence might be 50 found to exist'" (Id. at 583 [citing Prosser & Keeton, Torts § 122 at 908 (5th ed 1984)]). "[A] principled harmonization of tort policy, precedents and relevant authorities" thus precluded the imposition of third-party liability against the parent in LaTorre. Despite these clearly-expressed concerns, the Appellate Division's holding here allows the same practical result that concerned this Court in Holodook. That is, despite "the policy of the law and the court's equitable duty to protect the infant's interests with respect to actions brought by and against him," and despite the principle that "the Court must in the exercise of its equitable duties ensure that [the infant's] interests are protected and that he obtain no less than the law allows" (Favier v Winick, 151 Misc 2d 910 [Sup Ct, Suffolk County 1992]), the Appellate Division here has barred Keith, as a matter oflaw, from the opportunity to be compensated for his injuries in a case where his treating physician departed from standards of care, and in a case where expert testimony links these departures to his injuries. The policies articulated by this Court and by the overall jurisprudence of the State of New York do not allow for such an unjust result. The Order on appeal must be reversed. 51 h. Lower New York courts refuse to allow parental negligence as affirmative claim or defense. All four New York appellate departments have consistently relied on the policies underlying General Obligations Law § 3-111 to bar the use of a parent's negligence against an infant plaintiff. (See M.p. v Delaney, 37 AD3d 11 03 [4th Dept 2007]; Pedersen v Balzan, 117 AD2d 933 [3d Dept 1986]; fan v Clayburn, 21 AD2d 144 [1st Dept 1964]; DeMarco v Albany, 17 AD2d 250 [3d Dept 1962]; Corveddu v Blumner, 10 AD2d 712 [2d Dept 1960]; Boyd, supra; Galvin, supra). For example, the First Department recently held that General Obligations Law § 3-111 bars evidence of negligent supervision from being introduced at trial (Kelly v Metro. Ins. and Annuity Co., 82 AD3d 16 [1 st Dept 2011 n. Federal courts have reached similar conclusions. (Wilson, supra at 453; Banks v United States, 969 F Supp 884 [SD NY 1997].) As shown above, the cases that this Court has previously considered on the issue of parental negligence have addressed it in the context of affirmative claims against a third party. However, General Obligations Law § 3-111 equally bars the use of alleged parental negligence as a defense, lest "what is soundly forbidden directly would paradoxically be recognized and available indirectly" (Lalorre, supra at 579). The case law shows that this bar is not limited to acts that give rise to a determination 52 that the parent in question was "negligent," since "negligence" implies the presence of a legal duty which is not found in the parent-child relationship (Lastowski, supra); rather, it bars the imputation of parental acts and omissions generally. The policy against calling an infant plaintiffto answer for the negligence of its parents underlies such decisions as MF. v Delaney, supra, in which the Fourth Department dismissed defendants' affirmative defenses of "culpable conduct," etc., on the part of the mother of the infant plaintiffs, who were two and three years old and thus "non sui juris as a matter of law." The court correctly concluded that these defenses sought "to impute the alleged negligence of plaintiffs' mother to plaintiffs for the purpose of reducing their recovery," and should be stricken. (MF. v Delaney supra at 1104-1105, citing General Obligations Law § 3-111; Holodookv Spencer, 36 NY2d at 48; Cox v Cheaib, 231 AD2d 841, 842 (4th Dept 1996); accord Galvin, supra). Furthermore, even before this Court's decision on Holodook, the Second Department rejected a claim for negligent supervision, recognizing that there can be no one standard against which a parent's care can be measured. Rather, as stated above, parents' care toward their children is "held to no higher standard of care than the measure of their own physical, mental and financial abilities to provide for the well-being of their child" (Lastowski, supra at 129). 53 This policy has likewise permeated the trial courts. (Cardona v County of Albany, 188 Misc 2d 440,448 [Sup Ct, Albany County 2001] ["To the extent that the affirmative defense relies upon their mother's alleged failure to mitigate, the Court finds that the defense is, in reality, an attempt to impute Margaret Cardona's contributory negligence (in the form of her failure to take adequate protective measures to shield her children from lead paint exposure) to the infant plaintiffs. This, as noted, would contravene General Obligations Law § 3-111 "]; accord Rider v Speaker, 180 Misc 2d 999, 1001-1002 [Sup Ct, Sullivan County 1999]). Here, the argument presented by Dr. Haralabatos and SBUH is tantamount to an affirmative defense. Such defenses are "matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as . . . culpable conduct claimed in diminution of damages." (CPLR 3018 [b]). An assertion of an outside act that would break the chain of causation between a defendant's negligence and plaintiff s injury would necessarily diminish the plaintiff s damages, thus "visiting the sins ofthe father upon the children" (Law Rev. Comm. Comments, 1935 Leg Doc 60[C] at 23 [citing Lannen v Albany Gas Light Co., 46 Barb 264 (1865), affd 44 NY 459 (1871)]; see also Favier, supra), and requiring preclusion by this and any other Court. For ifthe Appellate Division's decision is upheld, Keith - who at the time was 54 four years old and non sui juris as a matter oflaw (Boyd, supra; Galvin, supra) - will never recover for his injuries. (See Latta v Siefke, 60 AD2d 991 [4th Dept 1978]). c. Out of state courts are consistent with New York. The highest courts of numerous other states have issued holdings consistent with the modem view in New York on imputing parental negligence to an infant. For example, as early as 1914 Colorado had rejected the earlier New York view, noting instead that "Colorado has long refused to sustain the doctrine that the contributory or comparative negligence of the parents of a child of tender years shall be imputed to the child" (Denver City lramway Co. v Brown, 57 Colo 484, 143 P 364,368 [1914] [cited in Francis v Dahl, 107 P3d 1171 (Colo App 2005) (holding that trial court erred in giving mitigation instruction to jury where plaintiff was ten years old at time of auto accident)]). Maine, citing Denver City lramway Co., decried the doctrine of imputed parental negligence as "not only unsound, but absurd and inhuman" (La bier v Pelletier, 665 A2d 1013, 1016 [Me 1995]), preferring an approach which provides that "[ a] child who suffers physical harm is not barred from recovery by the negligence of his parent, either in the parent's custody of the child or otherwise." (ld. [citing Restatement (Second) of Torts § 488].) Additionally, over a century ago the Montana Supreme Court reiterated its holding from eighty years 55 previously that "[t]he negligence of the parent, guardian, or custodian is not imputable to the child, because it is in no way responsible for the danger, had no volition in establishing the relation of privity with the person whose negligence it is sought to impute to it, and should not be charged with the fault of such person in allowing it to be exposed to danger which it had not the capacity either to know or to avoid" (Flaherty v Butte Elec. R.R., 40 Mont 454, 107 P 416,418 [1910] [internal citations omitted]). The Supreme Court of Delaware has refused to impute "unquestionable evidence of negligence" by a parent to an infant plaintiff. (McKeon v Goldstein, 53 Del 24, 164 A2d 260 [1960]); accord Gulesserian v Madison Rwys. Co., 172 Wis 400, 179 NW 573 [1920].) One of the most widely cited cases on the issue of negligence in the parent-child context is Goller v White (20 Wis2d 402, 122 NW2d 193 [1963]), which abolished the earlier doctrine of parental immunity from intrafamilial torts subject to specific exceptions "(1) where the alleged negligent act involves an exercise of parental authority over the child; and (2) where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care" (Holodook v Spencer, 43 AD2d 129, 133 [3d Dept 1973], affd 36 NY2d 35 [1974] [citing Goller, supra]). Under the rule expressed in Goller and expanded in this Court's upholding of 56 Holodook (36 NY2d 35), the fact that alleged negligence by Mrs. Orsi would have occurred in the context of "the provision of ... medical and dental services" would serve to prevent Keith from having any cause of action against her - thus further precluding him from any avenue of relief for his injury. (Latta, supra.) The Order's holding does not allow for an interpretation that IS consistent with New York law, and it should be reversed. B. THE ORDER IGNORES EITHER THE EXISTENCE OR THE SIGNIFICANCE OF § 3-111. As referenced above, plaintiffs submitted the opinions of an expert orthopedic surgeon to establish that Dr. Haralabatos' departures were the direct and proximate cause of Keith's injuries. As referenced above, these opinions - rendered with a reasonable degree of medical certainty - presented a credibility issue which the Appellate Division was bound to submit to a jury (Deutsch v Chaglassian, 71 AD3d 718 [2d Dept 2010]; Feinberg, supra; Halkias, supra at 651). In view of this expert opinion evidence, held by precedent to create a fact question, the only way the Appellate Division could have found insufficient causation would be via determination that the missed appointments were the sole proximate cause of the InJunes. 57 The argument that "the Orsis' failure to show for three scheduled follow- up appointments with Dr. Haralabatos between April 19 and May 4,2004, constituted an unforeseeable intervening act that broke any causal nexus" between the doctor's departures and Keith's injuries is not consistent with the General Obligations Law. What the General Obligations Law does require has been described above, and other cases do not dictate the conclusion that the Appellate Division reached here. Contrary to the Appellate Division's reading of this case, "[i]t has been held that a child four years of age or younger is non sui juris" (Cardona, supra at 448, citing Galvin, supra). This holding has deep roots in New York law (Metcalfe v Rochester Ry. Co., 12 AD 147 [App Div 1896]). Or, as one eighteenth-century legal scholar noted, "The common principle is, that an infant in all things which sound in his benefit shall have favor and preferment in law as well as another man, but shall not be prejudiced by anything in his disadvantage." 9 Yin Abr 374 (cited by Evansville v Senhenn, 151 Ind 42, 51, 47 NE 634 [1897]). As such, the law presumes that a four-year-old plaintiff does not have control over his actions or those of his custodians. The law does not place the burden on this four-year-old infant to request to be taken to the doctor, and the law does not penalize him when he does not take charge of his own health. Despite this long-standing principle, and despite the fact that the Appellate Division identified triable issues of fact as to departures, the 58 Order ignores the effect of the defendant's negligence and requires the infant plaintiff, four years old at the time of his injury, to answer for his parents' omissions. Under New York state law, the Appellate Division's ruling is fatally flawed. The handful of New York decisions that would seem to support the Order on appeal are in fact distinguishable. These cases acknowledge General Obligations Law § 3-111 but assert that it cannot be used to "expand the duty" a defendant owes to a plaintiff. This is not a relevant consideration here, because the Appellate Division already identified questions of fact as to whether Dr. Haralabatos breached her duty to Keith. For example, in Vaughan v St. Francis (29 AD3d 1133 [3d Dept 2006]), the Third Department refused to preclude evidence ofthe mother's alleged negligence (failure to bring the child to a pediatrician following a diagnosis of "a viral syndrome") from being submitted to the jury. The court wrote that the General Obligations Law prevents the imputation of parental negligence to a child, but this "does not, however, expand the scope of a defendant's duty to a child;" thus the jury would be allowed to consider the evidence. (Id.; see also Bullis v Schuyler Heights, Inc., 276 AD 630 [3d Dept 1950], ajfd302 NY 722 [1951]). In issuing an analogous holding, this Court recently affirmed an award of summary judgment in a case where plaintiffs' expert failed to raise an issue of fact as to departures from good and 59 accepted practice, and in view of which the expert did not demonstrate a causal connection between the care and the injury (Rivera v Kleinman, 16 NY3d 757 [2011]). Other cases have acknowledged that General Obligations Law § 3-111 does not circumvent the need to show a breach of duty that is a proximate cause of injuries. (Leasure v 1221-1225 Realty LLC, 25 Misc 3d 1226[A], 2009 NY Slip Op 52303U [Sup Ct, Kings County 2009]; Anderson v State, 48 Misc 2d 1061 [NY Ct CI1966]). Plaintiffs do not dispute that § 3 -111 does not expand a defendant's duty. (Prosser, Torts § 42 at 244,250, § 45 at 289 [4th ed 1971]). But these cases do not require the Appellate Division's Order to be sustained, because critically, the Appellate Division already ruled that questions of fact exist as to whether Dr. Haralabatos breached a duty to Keith. A doctor owes a duty of care to his or her patient (McNulty v Shimm, 100 NY2d 227 [2003]). From there, "[t]he law relating to malpractice is simple and well settled .... A physician and surgeon, by taking charge of a case, impliedly represents that [the physician] possesses, and the law places upon [the physician] the duty of possessing, that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where [ the physician] practices .... Upon consenting to treat a patient, it becomes [the physician's] duty to use reasonable care and diligence in the exercise of [the physician's] skill and the application of [the 60 physician's] learning to accomplish the purpose for which [the physician] was employed .... The law holds [the physician] liable for an injury to [the physician's] patient resulting from want of the requisite knowledge and skill, or the omission to exercise reasonable care" (Pike, supra, at 209). Where the Order states that plaintiffs' expert physician affirmation "raised triable issues of fact as to whether Dr. Haralabatos may have departed from good and accepted practice," this is tantamount to finding a breach of the duty to exercise "that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where [the doctor] practices" (ld.), or the "duty to exercise due care" (Nestorowich v Ricotta, 97 NY2d 393 [2002]). Based on the foregoing, what New York apparently requires to overcome the strong policy against imputing negligence to a child on a question of intervening cause is a showing of an affirmative act by a parent or custodian, or a showing that the defendant was compliant with standards of care. As the alleged intervening cause here was an omission, not an act, and as the Appellate Division issued a finding that triable issues of fact exist as to departures by Dr. Haralabatos, these cases do not support the Appellate Division's holding. 61 C. THE RECORD DOES NOT SUPPORT A FINDING THAT THE ACTS OR OMISSIONS OF THE INFANT PLAINTIFF'S PARENTS AMOUNTED TO NEGLIGENCE. In order to pre-empt any such claims in opposition, plaintiffs note that the record does not contain any evidence that either of Keith' s parents were negligent. Furthermore, any claim that they were negligent would require facts which do not exist in this record. A claim of negligence will not lie "unless (1) the defendant owed the plaintiff a cognizable duty of care, (2) the defendant failed to discharge that duty and (3) the plaintiff suffered damage as a proximate result of such failure" (Donohue v Copiague Union Free School Dist., 64 AD2d 29,32 [2d Dept 1978], affd 47 NY2d 440 [1979]). As to any potential claim of parental negligence here, the first two elements are lacking, and the third is unsupported by the record. 1. No duty existed between the infant plaintiff and his parents; as a matter of law, the parents cannot have been negligent. Whether a duty exists is a question to be answered by the courts (Darby v Compagnie Nat'IAir France, 96 NY2d 343,347 [2001]; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222 [2001]). As noted above (see page 36, supra), courts in New York have been unwilling to establish a parental "duty" - that is, a single standard against which a parent's care can be measured. Rather, parents' care toward their 62 children is "held to no higher standard of care than the measure of their own physical, mental and financial abilities to provide for the well-being of their child" (Lastowski, supra at 129). The rationale for this refusal is the acknowledgment that "[t]o provide a legal remedy for failure to perform what has always been considered a moral obligation and to subject a parent to penalty for almost undefinable and certainly indefinite obligations of a many-faceted nature would result in an unending multiplicity of litigation and pit child against parent and, in many instances, particularly where the child was not living with both parents, parent against parent" (Ryan v Fahey, 43 AD2d 429, 434 [4th Dept 1974], affd sub nom. Holodook v Spencer, 36 NY2d 35 [1974]), thus giving rise to "a definite sharp distinction between the moral and legal obligations" (Id.). Clearly, where no duty exists, none can be breached. As a matter of law, there is no parental negligence in the record. 2. The acts of the infant plaintiffs' parents were reasonable and do not show that they were negligent. Negligence "is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances" (PH 2:10, citing Caldwell v Island Park, 304 NY 268 [1952]; Sadowski v Long Island R. Co., 292 NY 448 [1944]; Bello v NYC Transit Auth., 12 AD3d 58 [2d Dept 2004]; Gray v Gouz, Inc., 204 AD2d 390 [2d Dept 1994]). 63 Here, the record shows that Mrs. Orsi contacted Dr. Haralabatos when she was prevented by car trouble (R. 680,683) from taking Keith for his visit on at least one occasion. (R.683.) It also shows that Mrs. Orsi had to reschedule at least one appointment. (R.680.) Dr. Haralabatos had at least one chance, possibly two, to speak with Mrs. Orsi (or at least to return her call) and tell her that it was urgent Keith be brought to see her. However, Dr. Haralabatos was not "worried" enough about Keith to do anything more than send a generic follow-up letter. (R.265.) She "asked" to see the Orsis again, and "encouraged" them to return, but she could not testify that she conveyed to them the urgency of the need for follow-up care. (R. 268.) Based on the Orsis' transportation problems as well as the lack of information regarding Keith's health that Dr. Haralabatos provided, plaintiffs submit that their actions were entirely reasonable under the circumstances. As a matter of law, there is no parental negligence in the record. 3. "Negligence" requires a showing of causation, which is absent here. As illustrated at length above (see Point I [A], supra), there has been no showing in the record that Keith's missed appointments were the proximate cause of injury to the infant. Nor is there any showing that Keith's attending those visits 64 would have resulted in earlier detection or treatment of his infection, or that the result would have been any different if Keith had returned to Dr. Haralabatos on April 22, April 29, or May 3. There is no evidence in the record that shows the missed visits prevented Dr. Haralabatos' liability for the negligence that already occurred. There is no evidence in the record that shows the missed visits "actively operated" in producing harm to Keith. Causation is the same as the other elements of negligence - where it does not exist, no negligence can be found. As a matter of law, there is no parental negligence in the record. D. ANY PARENTAL ACTS OR OMISSIONS WERE AT MOST A SUBSEQUENT ACT WHICH WOULD HAVE CONTRIBUTED TO THE INJURY ONLY IN CONCERT WITH DEFENDANTS' NEGLIGENCE. "The defendant's conduct is not a cause of the event, if the event would have occurred without it" (Prosser, Torts § 41 at 239 [4th ed 1971]). The corollary of this statement is that, if the event would not have occurred without the defendant's conduct, the conduct must be considered a cause of the event. Here, absent Dr. Haralabatos' negligence, Keith's inability to attend his appointments would not have been sufficient to cause his osteomyelitis. (See e.g. R. 1065-1085.) Defendants' 65 departures from standards of care were thus the sine qua non of Keith , s injuries, and, as shown above (see supra at Point II) amount to a successive cause regarding which questions of fact must be decided by a jury (Datiz, supra). Even if this Court views Keith's inability to attend his appointments as "a" proximate cause of his own injury, the Appellate Division's determination on causation was improper, "since it implied," in defiance of both the record and logic, "that there could be only one proximate cause for [plaintiff s] injuries .... To recover damages, plaintiffs needed only to prove that defendants' negligent act or omission was a substantial factor in bringing about their injuries" (Capicchioni v Morrissey, 205 AD2d 959 [3d Dept 1994]; Pedersen, supra; see also Point II [c], supra). The Appellate Division's award of summary judgment to defendants should be reversed. The matter should be submitted to a jury to determine whether the triable departures from standards of care identified by the Second Department were "a substantial factor" in allowing Keith's infection to be present and to worsen. E. EVEN ASSUMING THE PARENTAL ACTS OR OMISSIONS AMOUNTED TO AN INTERVENING CAUSE, THIS DOES NO MORE THAN RAISE AN ISSUE FOR JURY DETERMINATION. Apart from the fact that the Orsis' missed appointments can at most amount to a subsequent cause of Keith's injuries, the Appellate Division's implicit 66 characterization of the Orsis' missed appointments as an "'intervening cause" is incorrect for two reasons. First, the problem of intervening cause is "not one of causation but of policy concerning the point beyond which responsibility should not be imposed" (Martinez v Lazaroj}, 48 NY2d 819 [1979, Meyer, J., dissenting]) - but this policy must yield to the paramount concerns underlying General Obligations Law § 3-111. Additionally, without reaching any of the foregoing arguments, plaintiffs showed questions of fact on this issue which should have resulted in the Appellate Division upholding the motion court's decision. 1. General Obligations Law § 3-111 's policy considerations supersede those underlying the doctrine of intervening cause, and the "intervening cause" at issue here does not reach the threshold for submission to a jury. The well-documented policies that underlie General Obligations Law § 3-111 have been reviewed at length above. As to allowing an intervening cause to cut off a defendant's liability, "[ e ]ssentially the problem is not one of causation but of policy concerning the point beyond which responsibility should not be imposed" (Martinez, supra [Meyer, J., dissenting], citing inter alia Ventricelli, supra). Thus, "[ u ]nless plaintiff s conduct or plaintiff s contact with a third person was so extraordinary and unforeseeable as to constitute an intervening cause, an intervening 67 cause charge should not be submitted to the jury" (IA PH 2:72 at 392 [2010]). The ascription of liability to a defendant, even in the presence of an intervening cause, responds to the policy conundrum of why defendants should be relieved of liability for something they have caused, even if other causes may have increased the degree of harm (Prosser, Torts § 44 at 271-272 [4th ed 1971]). This consideration is particularly salient where (as here) the intervening cause may not be visited upon the infant plaintiff. Notably, the term "intervening cause" presupposes that this new causative event occurs in the context of (i.e. "intervenes in") a situation created by the defendant (Id.). The Appellate Division acknowledged that questions of fact exist regarding departures from standards of care by these defendants; it cannot be said as a matter oflaw that they are innocent of blame. To hold that these same defendants are legally cut off from causing Keith's infection, as a matter of policy, would impose a "policy" pursuant to which a four-year-old plaintiffis barred from compensation for his injuries. Here the policy oflimiting the "ripples on the pond" ofliability has been preempted by the General Obligations Law. Even if a fact question would exist in a case involving an adult plaintiff, here the jury would be forbidden from hearing this evidence. As discussed above (see Point III [AJ supra), this restriction is derived 68 from the supreme concern for the integrity of the family unit, and as discussed above (see id.), the Appellate Division's Order depicts a troubling willingness to violate this integrity. 2. Even if the alleged parental negligence amounted to an intervening cause, it must be considered by a jury. Assuming this characterization of the missed appointments as an "unforeseeable intervening act" is accurate, the Appellate Division's decision was still incorrect as it failed to send this issue to a jury. "Where the acts of a third person intervene between the defendant's conduct and the plaintiffs injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus. Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve." (Derdiarian, supra at 315 [internal citations omitted].) Remarkably, this same proposition - that "[ q]uestions concerning what is foreseeable are usually for the trier of fact" - was critical in an earlier Second Department case, Fahey (supra), that the 69 Second Department referenced in the Order on appeal (see Point I [A] [3] supra). This Court has acknowledged that the "reasonably foreseeable consequences" of a tortious act, for which a wrongdoer is responsible, include the negligent conduct of others (Derby v Prewitt, 12 NY2d 100,106 [1962]). If Keith's inability to appear for his appointments on April 22, April 29, and May 5 was "negligent," it is in the class of events that the law considers foreseeable, and the missed appointments cannot amount to an intervening cause as they lack the element of unforeseeability. That Dr. Haralabatos should have been aware that an appointment could be missed is evident as of April 8, when Mrs. Orsi had to reschedule an earlier appointment (again, during a month when Mrs. Orsi described Keith as asymptomatic, R. 685). In light of previous cases involving far more tenuous connections between a defendant's act and an "intervening" cause (see infra at pages 74-75; see also Prosser, Torts § 44 at n. 86 [4th ed 1971]), plaintiffs submit that a jury could reasonably determine that Dr. Haralabatos should have foreseen Keith's inability to attend his appointments as an instance of "occasional negligence which is one of the ordinary incidents of human life" (Prosser, Torts § 44 at 27 4 [4th ed 1971]). Even if this Court holds that Keith's inability to attend his visits was 70 unforeseeable as a matter oflaw, a jury is still entitled to detennine whether the harm he suffered - i.e. bone infection - was the result that Dr. Haralabatos should have protected against. This Court has acknowledged "that plaintiffs need not demonstrate the foreseeability of the precise manner in which the accident occurred or the precise type of harm produced in order to establish theJoreseeability component of their tort claims" (Di Ponzio v Riordan, 89 NY2d 578, 583-584 [1997]; Sanchez v State, 99 NY2d 247, 252 [2002]). Instead, "the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived. In words familiar to every first-year law student, 'the risk reasonably to be perceived defines the duty to be obeyed.' Although the precise manner in which the harm occurred need not be foreseeable, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent" (Sanchez, supra, citing Palsgraf v Long Is. R.R. Co., 248 NY 339,344 [1928]). The law as set forth by this Court in these cases is consistent with that which has long been articulated in federal courts including the Supreme Court, as well as courts in other federal circuits (Tfashington & G. R. Co. v Hickey, 166 US 521 [1897]; Hentschel v Baby Bathinette Corp., 215 F2d 102,106-111 [2d Cir. 1954]; accord Johnson v Kosmos Portland Cement Co., 64 F2d 193, 196 [6th Cir. 1933]; 1 exas & FR. Co. v Carlin, III F 777, 781 [5th Cir. 1901]; Anglo-American Oil Co. 71 v United States, 99 F Supp 767 [DNY 1951]). This rule goes back in the State of New York to at least 1904 (see Leeds v New lark leI. Co., 178 NY 118 [1904] and cases cited therein). Here, the "risk ofhann reasonably to be perceived" by Dr. Haralabatos was the risk of infection at the site of the pins in Keith's elbow. Dr. Haralabatos herself acknowledged the need to avoid this outcome, stating that "Any puncture of the skin whatsoever carries with it the risk of infection" (R. 189), and agreeing that skin infection around the site of the wire placement can lead to bone infection. (R. 246.) As of April 15, Dr. Haralabatos was concerned about "continued infection" around the pin sites. (R. 251.) Upon examination on April 19 , ongoing erythema was observed. Dr. Haralabatos testified that infection was possibly present. (R. 257-258.) Dr. Haralabatos appreciated and foresaw the possibility of osteomyelitis. Plaintiffs' expert repeatedly noted the risk of infection as well, stating specifically at R. 1074, para. 37, that "[o]ne of the main purposes of therapy following the fracture surgery was to prevent or avoid osteomyelitis (infection of the bone)." At R. 1075, para. 42, the expert states that "The failure to properly treat a skin infection can lead to osteomyelitis, especially when the skin infection is around a pin or wire breaking the skin, where the wire is also sticking into the bone and providing a portal for infection. Dr. Haralabatos and Dr. Nachman testified that such 72 a skin infection can lead to osteomyelitis. (Haralabatos deposition at p. '96')." Other statements that osteomyelitis was a known risk of skin infection and the use of Kirschner wires are included over and over again at R. 1065-1085. The expert affirmation further establishes, particularly at paras. 60-79 (R. 1080-1085), that this is exactly the risk that was realized due to Dr. Haralabatos' negligence. The injury Keith suffered - osteomyelitis resulting from the negligent treatment of a skin infection - was foreseeable and was the type of harm Dr. Haralabatos was required to exercise due care to prevent (Sanchez, supra). Dr. Haralabatos cannot argue that Keith's inability to return for followup visits was the sole proximate cause of his injury (see McKeon v Goldstein, 53 Del 24 [1960] [refusing to consider "unquestionable evidence" of negligence by mother in suit brought by infant for infant's own benefitD. There is no evidence that his missed visits "directly inflicted" his infection (cl Leeds, supra) - what "directly inflicted" the injury and allowed the presence of the infection at all was the defendants' inadequate care. Again, questions of foreseeability "traditionally . . . are the kind of matters suitable for jury determination" (Parvi v Kingston, 41 NY2d 553,560 [1977] [reversing dismissal of complaint at close of plaintiff's evidence D. Justice Meyer, dissenting in Martinez (supra), rejected the majority's holdingthatthe infant's injury 73 was not foreseeable based on precedent including Gardner v Fleckenstein (3 NY2d 812 [homeowner liable who had left paraffin wax heating on a stove where plaintiff was walking on the lawn when a workman on the premises, seeing flames in the kitchen, seized the flaming wax pot and threw it into the yard, burning plaintiffJ); Miller v Board of Educ. (291 NY 25 [board of education liable for failure to repair a fire escape door, though plaintiff would not have been injured had the teacher not failed to supervise plaintiff's play]); and Parvi v Kingston (supra [city liable for police officer's negligence, even though plaintiff would not have been injured had a car not arrived on the highway at the same time and place as he]). In each of these cases, liability was sustained with arguably with a more tenable connection between the injury and alleged negligence than here. The instant facts, at a bare minimum, do not entitle defendants to judgment as a matter of law and must be considered by a jury. Thus, granting defendants' motion for judgment as a matter of law was improper. 74 POINT IV. LEST THE INFANT PLAINTIFF'S ABILITY TO CONTINUE PROSECUTING HIS CLAIMS OF MALPRACTICE BE PREJUDICED, PLAINTIFFS LISA ORSI AND MICHAEL ORSI ARE WILLING TO WITHDRAW THEIR DERIVATIVE CLAIMS. Plaintiffs Lisa and Michael Orsi do not concede that their inability to take Keith to his doctor's appointments in April and May 2004 amounted to negligence, and New York law does not compel this conclusion either (Lastowski, 44 AD2d at 129 [parents are "held to no higher standard of care than the measure of their own physical, mental and financial abilities to provide for the well-being of their child"]). Nonetheless, mindful of the fact that if these missed appointments were construed as an intervening cause with respect to these sui juris plaintiffs only (see Metcalfe, supra at 152), there is a chance they could necessitate consideration by a jury, plaintiffs Lisa and Michael Orsi are willing to withdraw their individual claims for loss of Keith's services so as not to prejudice Keith's claims at trial. 75 CONCLUSION The Appellate Division's Order cannot co-exist with current New York jurisprudence. Its premise was never adjudicated by the motion court and was unsupported by the record. Given the identification of issues of fact regarding defendants' departures from standards of care, and the opinions set forth in the record by plaintiffs' expert on the issue of causation, the outcome reflected in the Order can only be based on the Appellate Division's implicit imputation of acts and omissions of the plaintiff parents to the infant plaintiff. A holding by this state's highest court that a parent's foreseeable inability to bring a child for followup care breaks, as a matter of law, the chain of causation between acknowledged departures from standards of care and infection in a four-year-old plaintiff would drastically alter well-established tenets of tort law. In order to avoid such an upheaval, plaintiffs respectfully submit that this Court should reverse the Order on appeal from the Appellate Division and deny defendants' motion 76 for summary judgment. Dated: Garden City, NY July 12,2012 77 Respectfully submitted, ana E. eitz, s Silberstein, Awad iklos, P.C. Attorneys for Plaintiffs-Appellants 600 Old Country Rd., Suite 412 Garden City, NY 11530 (516) 832-7777 dheitz@ask4sam.net ADDENDUM STATE OF NEW YORK To be Argued by: CRAIG R. BUCKI, ESQ. Time Requested for Argument: (15 Minutes) ~uprtme illnurt Appellate Division Docket Number: 2010-096399. ApPELLATE DIVISION--SECOND JUDICIAL DEPARTMENT KEITH ORSI, an infant by his parents and natural guardians, LISA ORSI and MICHAEL ORSI, and LISA ORSI and MICHAEL ORSI, individually, Plaintiffs-Respondents, vs. SUSAN HARALABA TOS, M.D., and STONY BROOK ORTHOPAEDIC ASSOCIATES, Defendants-Appellants, and RICHARD SCRIVEN, M.D., ZHANNA SIKORSKI, RPA-C, SHARON NACHMAN, M.D., DIVNA DJOKIC, M.D., LUCY PONTRELLI, M.D., and CHRISTOPHER CARLEO, M.D., Defendants, Suffolk County Index No.: 25565/2006. BRIEF FOR DEFENDANTS~APPELLANTS SUSAN HARALABA TOS, M.D., and STONY BROOK ORTHOPAEDIC ASSOCIATES ERIC M. KRAUS, ESQ. CRAIG R. BUCKI, ESQ. Of Counsel PHILLIPS LYTLE LLP Attorneys for Defendants-Appellants Susan Haralabatos, MD., and Stony Brook Orthopaedic Associates 437 Madison Avenue, 34th Floor New York, New York 10022 Telephone: (212) 759-4888 BATAVIA LEGAL PRINTING, INC.- Telephone (866) 768-2100 The expert affirmations of Dr. Phillips and Dr. Rubin establish that Dr. Haralabatos exercised her best judgment and engaged in good and accepted medical practice in her care for Keith Orsi in 2004. The Orsis' unnamed expert physician's answering affirmation fails to create any factual issues suggesting otherwise, because: (i) it relies upon assumptions contradicted by facts in the record; (ii) it overlooks other pertinent facts; and (iii) it offers conclusory and speculative opinions lacking any supporting rationale. For these reasons, this Court should award Dr. Haralabatos summary judgment. POINT II DR. HARALABATOS IS ENTITLED TO SUMMARY.JUDGMENT, BECAUSE HER CONDUCT DID NOT CONSTITUTE THE PROXIMATE CAUSE OF KEITH ORSrS OSTEOMYELITIS Even if Dr. Haralabatos did not engage in good and accepted medical practice in her treatment of Keith Orsi, this Court should nonetheless grant her summary judgment, because that treatment did not proximately cause Keith Orsi' s osteomyelitis or his resulting injury. To the contrary, the Orsis' failure to show for three scheduled follow-up appointments with Dr. Haralabatos between April 19 and May 4, 2004, constituted an unforeseeable intervening act that broke any causal nexus that may have linked Dr. Haralabatos' conduct with Keith Orsi's development of osteomyelitis. 33 "The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was Q proximate cause ofiniury or damage." Wicksman v. Nassau County Health Care Corp., 27 A.D.3d 644, 644 (2d Dep't 2006) (emphasis added). As the Court noted in Rodriguez v. Pro Cable Services Co. Limited Partnership, 266 A.D.2d 894, 895 (4th Dep't 1999), however: The causal nexus between a defendant's conduct and the injury will be broken when there are intervening circumstances that are extraordinary under the circumstances, unforeseeable in the normal course of events, different in kind from the foreseeable risks associated with the original negligence, or independent or far removed from the defendant's conduct. (Citing Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308,315-16 (1980)). As such, the Court of Appeals has routinely awarded summary judgment to defendants in negligence cases in which an "independent intervening occurrence" that did not "flow from" the defendants' conduct (Campbell v. Cent. N.Y. Reg'l Transp. Auth., 7 N.Y.3d 819,820 (2006)) and that was "not reasonably foreseeable" (Ventricelli v. Kinney Sys. Rent A Car, Inc., 45 N.Y.2d 950, 952 (1978)) brought about the plaintiffs injuries. See,~, Egan v. A.J. Const. Corp., 94 N.Y.2d 839 (1999); Martinez v. Lazaroff, 48 N.Y.2d 819 (1979). Farrell v. Lowy, 192 A.D.2d 691 (2d Dep't 1993), is analogous. The plaintiff, a runner in a charity race through the Village of Westbury in Nassau 34 County, had suffered injuries when she was struck by a motorist who had driven his car over traffic cones blocking the race route, "contrary to the instructions given to him by the Village Superintendent of Public Works." Id. at 691. The plaintiff "sought to establish that the Village and the County were negligent in providing for traffic control during the race," but this Court disagreed: It is well established that while a defendant remains liable for all normal and foreseeable consequences of his acts, an intervening act will constitute a superseding cause and will serve to relieve the defendant of liability when the act is of such an extraordinary nature or so attenuates the defendant's conduct from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant. ... [1]t is clear that under the circumstances of this case the supervening act of the defendant [ motorist] broke any chain of causation .... Id. (emphasis added). As such, any conduct of the employees of the Village or the County could not have constituted the proximate cause of the plaintiff's injuries, and the Court awarded those municipal defendants summary judgment. In medical malpractice cases, the patient's failure to follow the defendant physician'S instructions likewise constitutes an independent intervening occurrence that, as a matter of law, severs any causal link between the physician'S conduct and the patient's injuries, and necessitates summary judgment in favor of the physician. Several cases are on point. 35 In Rivera v. Kleinman ("Rivera"), 67 A.D.3d 482 (18t Dep't 2009), affd, _ N.Y.3d _,2011 WL 497894 (Feb. 15,2011), parents alleged that their child had suffered a "protuberance that eventually punctured the skin," and consequent injury and pain, as the result of the defendant physicians' surgical installation of orthopedic hardware. The child's parents had not sought removal of the hardware for over three years after its installation, however, even though the defendants had advised the child's mother "that the hardware should be removed between 18 and 24 months after surgery." Id. at 483. As such, the Court awarded the physicians summary judgment, because the "inaction" of the child's parents "became the superseding cause of the injury." rd. In Sheikh v. Sinha ("Sheikh"), 272 A.D.2d 465 (2d Dep't 2000), the plaintiff claimed that he had sustained injury as a result of taking hydrochlorothiazide prescribed by the defendant physician. The plaintiff admitted during his deposition, however, that he had collapsed after ingesting "three times the prescribed dosage." Id. Because the plaintiff had not taken the medicine in accordance with his physician's instructions, "the plaintiff failed to raise a triable issue of fact as to whether the [physician's] actions were a proximate cause of his injuries." Id. at 465-66. Miller v. Sullivan ("Miller"), 214 A.D.2d 822 (3d Dep't 1995), concerned Leonard Miller, a dentist, who had begun to experience symptoms of a 36 heart attack during the morning of July 11, 1986. He telephoned the defendant, a physician, to report these symptoms. In response, the defendant advised Dr. Miller "to come over and see him right away." Id. at 823. Rather than follow this advice, Dr. Miller waited several hours before he visited the defendant's office, and went into cardiac arrest moments after his arrival. The Court determined that it was not "reasonably foreseeable that [Dr. Miller] would ignore the [defendant's] advice and wait several hours before seeking medical treatment .... " Id. Because Dr. Miller had not abided by the defendant's instruction - viz., to visit his office "right away" - the Court awarded the defendant summary judgment on the medical malpractice claim of Dr. Miller's estate. Gibbons v. Hantman ("Gibbons"), 58 A.D.2d 108 (2d Dep't 1977), aff'd, 43 N.Y.2d 941 (1978), concerned a plaintiff who had suffered complications from a cholecystectomy. The plaintiff reported these complications to a general practitioner, Dr. Morris Appelman, who "instructed her to return to Dr. Hantman, the surgeon who performed the operation, for the treatment of her ailment." Id. at 109. The plaintiff "chose to ignore his advice," however, "and did not seek any further medical attention for several months." Id. As such, this Court determined that "no malpractice on [Dr. Appelman's] part ... could be a proximate cause of any damage to the plaintiff." Id. at 110. 37 Just as the plaintiffs in Rivera, Sheikh, Miller, and Gibbons failed to adhere to their physicians' instructions, so did the Orsis fail to abide by Dr. Haralabatos' instruction to follow up with her soon after Keith Orsi' s visit to her office on Monday, April 19, 2004. That day, Dr. Haralabatos examined Keith Orsi, and saw no signs or symptoms of osteomyelitis. Nonetheless, Dr. Haralabatos sought to continue to monitor Keith Orsi' s condition closely. As such, Dr. Haralabatos asked Lisa Orsi, Keith's mother, to schedule another appointment for Keith for Thursday, April 22, or Friday, April 23. (R. 35, 394). Mrs. Orsi indeed set an appointment for April 22, but she and her son did not show. (R. 36, 855). Mrs. Orsi scheduled another appointment for April 29, 2004, but once again, she and her son failed to visit Dr. Haralabatos. (Id.). Mrs. Orsi then set yet another appointment for May 3,2004, but she later cancelled. (rd.). Mrs. Orsi finally brought her son back to Dr. Haralabatos' office on May 4, 2004 - viz., 15 days after their most recent visit on April 19. When Dr. Haralabatos examined Keith Orsi that day, she noted signs of a serious infection, and promptly directed that Keith be admitted to Stony Brook Hospital for treatment. (R. 36, 272, 801, 830, 916). A biopsy performed the following day confirmed that Keith Orsi had developed osteomyelitis. (R. 10). 38 Dr. Haralabatos might have detected Keith Orsi' s osteomyelitis and ordered appropriate treatment on April 22, April 29, or May 3, 2004, if the Orsis had honored any of the follow-up appointments that they had skipped on those days. Dr. Haralabatos had asked to see Keith Orsi only three or four days after his April 19th visit, because she wanted to monitor his condition carefully. Due to their failure to keep any of the missed appointments, however, the Orsis deprived Dr. Haralabatos of the opportunity to keep close watch over Keith Orsi's evolving condition between April 19 and May 4 - the very time period during which even the Orsis' unidentified expert physician admits that Keith Orsi's osteomyelitis developed. The Orsis' inattention to following up with Dr. Haralabatos should not subject Dr. Haralabatos to liability for Keith Orsi's osteomyelitis or any resulting InJUry. Even if a jury were to find that Dr. Haralabatos had failed to engage in good and accepted medical practice in her treatment of Keith Orsi (which she did not), the Orsis' failure to honor three scheduled follow-up appointments with Dr. Haralabatos between April 19 and May 4, 2004, constitutes an intervening cause of Keith Orsi's osteomyelitis. As a matter of law, the care rendered by Dr. Haralabatos, therefore, did not represent the proximate cause of that adverse outcome, and she is entitled to summary judgment. 39 To be argued by: DANA E. HEITZ Time requested: 15 minutes ~upreme QI:ourt $>tate of .iletu ~ork ApPELLATE DIVISION- SECOND DEPARTMENT KEITH ORSI, an infant by his parents and natural guardians, LISA ORSI and MICHAELORSI, and LISAORSI and MICHAELORSI, individually, Plaintiffs-Respondents, against SUSAN HARALABATOS, M.D., STONY BROOK ORTHOPAEDIC ASSOCIATES, Defendants-Appellants, RICHARD SCRIVEN, M.D., ZHANNASIKORSKI, RPA-C, SHARON NACHMAN, M.D., DIVNA DJOKIC, M.D., LUCY PONTRELLI, M.D., and CHRISTOPHER CARLEO, M.D., JOSEPH C. MUZIO Of Counsel Defendants. BRIEF OF PLAINTIFFS-RESPONDENTS SILBERSTEIN, AWAD & MIKLOS, P.e. Attorneys for Plaintiffs-Respondents 600 Old Country Road Garden City, New York 11530 (516) 832-7777 Suffolk County Clerk's Index No. 25565/2006 FRA'IKLN COCRT PRESS. hc.-212-594-7902 (175-11) Reproduced 011 Recycled Paper 2010-09399 growth abnormality as far as length of the arm since the epiphyseal plates were involved. He will also have pennanent stiffness of the arm and will need further surgeries including total elbow replacement[ ... ]." (R.958.) Based on the evidence referenced above, the trial court properly found that plaintiff-respondents raised issues of fact on the question of causation. These arguments went unanswered in defendants' reply. Defendant-appellants' summary judgment motion was properly denied, which should be upheld. B. THE NEW ARGUMENTS DEFENDANT-APPELLANTS ATTEMPT TO RAISE ON APPEAL ARE IMPROPER AND SHOULD NOT BE CONSIDERED. Point II of defendant-appellants' brief, that "the Orsis' failure to show for three scheduled follow-up appointments. . .constituted an unforeseeable intervening act" should not be considered by this Court. While plaintiff- respondents' expert preemptively addressed the missed appointments, the question of whether they amounted to a "superseding, intervening cause" is unsupported by expert opinion and is raised for the first time on appeal. This is simply a poorly- veiled attempt to distract this Court from the negligence that occurred when Keith was present in the office. More importantly, as this argument was never presented to the trial court it may not be considered now. 34 The nearest defendant-appellants came to argumg a "superseding, intervening cause" was in the reply in further support of their motion, in which they noted that the missed visits "deprived Dr. Haralabatos of an opportunity to re- evaluate Keith's condition." Plaintiffs had no chance to respond to this new argument. The original motion contains only a passing reference to the missed appointments in defendant-appellants' "precis" of the argument, and only in the context of their experts' difficulty in determining when the osteomyelitis began prior to the May 5 diagnosis. Nothing in the original motion papers or in the reply claims that the missed visits constitute a "superseding, intervening cause," nor does any expert reference this novel theory. Accordingly, the argument that the missed appointments amounted to a "superseding, intervening cause" of the infant- plaintiff's injuries is not before the Court and should not be considered. 1. Defendant-appellants' failure to show prima facie entitlement to summary jUdgment on the question of causation obviated plaintiff-respondents' need to address it in opposition. As stated in plaintiff-respondents' opposition to the motion, no response to the issue of proximate cause was necessary. (R. 1061-1062.) Dr. Haralabatos failed to address the issue in her motion and thereby lifted the burden from plaintiff-respondents to raise a triable question of causation in opposition. Somoza v. St. Vincent's Hosp. and Med. etc, 192 A.D.2d 429, 596 N.Y.S.2d 789 (1 st Dept. 1993). Nevertheless, as shown above, plaintiff-respondents submitted 35 ample evidence to create a triable issue on this question. Defendant-appellants replied by restating a conclusory provision they raised in the "precis" of their argument and nowhere else~ including in their experts~ affirmations~ and by referencing documents that are outside the record. Now, on appeal, defendant- appellants seek to raise an entirely new theory. All these efforts are improper and require this portion of the brief to be stricken. 2. The court is limited to the contents of the record and the arguments before the court below, which are insufficient to warrant reversaL l. Defendants may not raise an argument for the first time on appeal. It scarcely bears repeating that a litigant may not raise an argument for the first time on appeal. Morales v. County of Nassau, 94 N.Y.2d 218,724 N.E.2d 756 (1999); Mourounas v. Shahin~ 291 A.D.2d 537, 737 N.Y.S.2d 647 (2nd Dept. 2002). "An appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance." Fresh Pond Rd. Assoc. v. Estate of Schacht, 120 A.D.2d 561, 561, 502 N.Y.S.2d 55 (2nd Dept. 1986) (lv. dismissed in part and denied in part, 68 N.Y.2d 802, 506 N.Y.S.2d 865, 498 N.E.2d 429). Disregarding this well-established proposition, however, defendant- appellants elected to rely heavily (beginning on page 33 of their Appellants' Brief) 36 on a new and unproven argument, i.e. that the missed appointments amounted to an "unforeseeable intervening act that broke any causal nexus that may have linked Dr. Haralabatos' conduct with Keith Orsi's development of osteomyelitis." A thorough combing of the record yields no reference to this theory in defendant- appellants' motion or reply, thereby failing to preserve this argument for appellate review and depriving plaintiff-respondents of the opportunity to marshal evidence in opposition. Cowsert v. Macy's East, Inc., 79 A.D. 3d 1319, 912 N.Y.S.2d 765 (3 rd Dept. 2010); see also Allstate Ins. Co. v. Dawkins, 52 A.D.3d 826, 861 N.Y.S.2d 391 (2nd Dept. 2008). This argument is therefore not entitled to consideration. ll. The argument submitted to the trial court was deficient and does not give rise to the new argument on appeal. The references to the missed appointments throughout defendant- appellants' motion papers and supporting expert affirmations are found on the following pages: R. 25, 36, 127, 138, 145, 1102, 1105. Even a generous reading of these papers does not provide a basis for the arguments submitted in Point II. of defendant-appellants' brief. That is, the record contains no argument that the mother's negligence amounted to a superseding intervening cause. The sole argument defendant-appellants' motion advanced with regard to the missing appointments was a statement in an unsupported attorney's 37 affirmation that these appointments "deprived defendants of the opportunity to evaluate the infant plaintiff at that critical time and maker] it impossible to determine when precisely before the diagnosis ... the osteomyelitis began or became apparent." (R. 25.) (Plaintiff-respondents' expert rebutted this argument, as shown above and at R. 1079-1080.) However, while defendant-appellants' experts noted the missed appointments (R. 127, 138), they did not offer any opinions as to their significance. This point is therefore "purely conclusory, as it is not based upon factual evidence in the record." Morales v. Coram Mafls Corp., 51 A.D3d 86, 853 N.Y.S.2d 611 (2nd Dept. 2008); Salandy v. Bryk, 55 A.D. 3d 147, 158-159, 864 N.Y.S.2d 46, 54 (2nd Dept. 2008). A paliy's entitlement to summary judgment may be premised on the affirmation of an attorney only so long as it is based upon documentary evidence. Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718 (1980); Prudential Securities Inc. v. Rovello, 262 A.D.2d 172 (1st Dept 1999). Statements solely contained in an attorney's affirmation are not in "evidentiary form," Shaffer v. Kasperek, 79 A.D.2d 1092, 435 N.Y.S.2d 835 (4th Dept. 1981); and thus cannot be considered on a summary judgment motion. In re Delgatto, 82 A.D. 3d 1230, 919 N.Y.S.2d 391 (2nd Dept. 2011); Harris v. City of New York, 147 A.D.2d at 189, 542 N.Y.S.2d 550 (1 SI Dept. 1989) (a "bald conclusory assertion" by counsel "can be given no evidentiary value"). Although the deficiency of defendant-appellants' 38 argument did not warrant a response, Somoza, 192 A.D.2d 429, plaintiff- respondents' expert addressed causation and raised a triable issue. (R. 1058-1061, 1079-1085.) Defendant-appellants' resurrection of this futile argument in reply (R. 1102), however, does not form a basis for their current argument on appeaL In an attempt to plug the gaps in their original motion, defendant- appellants' reply alludes to non-specific law and facts (R. 1105), but none of these efforts can be construed as supporting their new issue on appeal. For example, there is no jurisprudential support for defendant-appellants' conclusory asseliion that where a defendant has shown no departures from standards of care, no discussion of causation IS necessary. (R. 1105.) Defendant-appellants also reference a "memorandum of law" which is not included in the record, and is thus beyond this Court's ability to consider. Nagelberg v. Finegan, 268 N.Y. 611, 198 N.E. 429 (1935); Hayes v. Haj, 246 A.D. 568,282 N.Y.S. 705 (4th Dept. 1935). (Of course, should defendant-appellants move to amend the record and their motion be granted, plaintiff-respondents would reserve the right to file a supplemental respondents' brief or a sur-reply.) There is no argument m the record that the three no-show appointments amounted to a "superseding, intervening cause." 39 3. Plaintiff-respondents' expert evidence pre-empts the argument that the missed appointments negated the effect of Dr. Haralabatos' substandard care. Plaintiff-respondents' expert noted at R. 1079-1080 that [w]hile Keith missed appointments on April 22nc\ April 29t \ and May 3rd, Dr. Haralabatos missed opportunities to properly treat the skin infection around the pin site and avoid the osteomyelitis which occurred due to such infection. Regardless of these missed appointments, Dr. Haralabatos could have, and should have, timely and properly treated the skin infection at the pin site spanning from the March 25 th visit, to the April 15th visit, to the April 19th visit. Dr. Haralabatos' failure to do so was a substantial factor in causing the degree and extent of the osteomyelitis (chronic osteomyelitis) which occurred, with the resulting permanent injury and sequelae. (Alternatively, this failure deprived Keith of a substantial chance of avoiding the degree and extent of the osteomyelitis which occurred, with the resulting permanent injury and sequelae). The expert continued: For example, Dr. Haralabatos could have timely administered the Cefzil on April 15th , instead of waiting 4 additional days to start the antibiotic on April 19th• As of April 15th , no antibiotic had been administered for approximately 15 days, and waiting additional days to start antibiotic therapy was improper. The longer an unresolved skin infection at a pin site was allowed to linger, the higher the chance that the infection could spread along the portal to the bone. This is especially true if, as Dr. Nachman claimed, there was non- compliance in taking the Augmentin prescribed between March 22nd and March 31 st. [R.554-555.] [ ... ] Further, Dr. Haralabatos could have monitored whether the Cefzil was "working" or effective in treating the infection by ordering on April 19th that 40 repeat blood testing take place on April 19th and April 26th . Even if the missed appointments deprived Dr. Haralabatos of subsequent opportunities to intervene in the progression of Keith's osteomyelitis, Dr. Haralabatos' departures from standards of care as described above occurred on dates when she did examine Keith. Thus, the missed appointments do not excuse her failure to intervene in his disease on April 15th and April 19th • C. ANY BREAK IN THE CHAIN OF CAUSATION RESULTING FROM THE MISSED APPOINTMENTS IS DUE TO THE CONDUCT OF KEITH'S PARENTS AND CANNOT BE IMPUTED TO THE INFANT-PLAINTIFF. For purposes of this point and Point II(D) below, plaintiff-respondents assume arguendo that defendant-appellants somehow managed to raise the question of a "superseding" cause to the court below; however, these points are not a concession that the argument was raised. The claim that "the Orsis' failure to show for three scheduled follow- up appointments ... constituted an unforeseeable intervening act" (App. Br. 33) and thus broke any causal link between Dr. Haralabatos' negligence and Keith's injuries cannot be entertained under New York State law. The direct language of GOL §3-111 leaves no room for ambiguity: "In an action brought by an infant to recover damages for personal injury the contributory negligence of the infant's 41 parent or other custodian shall be imputed the' ,., Defendant-appellants cannot on missed visits to break chain causation, and they have no Jurisprudential support to show otherwise. GOL §3-111 represents a codification of the common Kelly v. Metro. Ins. and Annuity Co., 82 A.D.3d 16, 918 N.Y.S 50 (l5t Dept. 2011), and prevents an infant plaintiff from suffering the legal consequences of 's negligence, where the infant was without power to avoid See . Pedersen v. ~~, 117 A.D.2d 933,499 N.Y.S rd 239 (3 Dept. 1986); Van v. Clayburn, 21 A.D.2d 144,249 .Y.S.2d 310 (lSI Dept. 1964); ~~~~~~~, 10 A.D2d 71 199 N.Y.S.2d 72 (2nd Dept. 1960); PH doctrine in state is well-established and dates back nearly a century a half. McGarry v. Loomis, 18 Sickels 104, 1875 10857 (1875). In a medical malpractice case, a child necessarily dependent upon his parents as regards steps to be taken to bring about a recovery from an injury, that a H'-""-~'-"vC of proper surgical treatment by the parent cannot be imputed to the and no of infant plaintiffs damages may be reduced upon conduct of the parents." ~~;""":";:"""':"":~=l 151 Misc.2d 910,583 N.Y .2d 907 (Suffolk Co. 1992) (citing GOL §3-111). Apparently only instance where this doctrine yields to considerations of a "superseding cause" is the parent disregards specific instructions. See,~" Vaughan v. Saint Francis Hosp.~ 29 A.D.3d 1133, 8] 5 N.Y.S.2d307 (3 rd Dept. 2006) (GOL §3-111 not applicable where defendant hospital complied with standards of care by discharging infant surgical patient "with specific instructions to the parent to follow up the next day"). However, that is not the situation presented in this case. The record here shows that the Orsis never ignored any "specific instructions" to return on a particular date. While on April 15 th the Orsis were "specifically instructed" to return for follow-up in one week, i.e. the April 19th visit (R. 772), no further instruction was issued when they did return that day. (R. 769.) Dr. Haralabatos' self-serving testimony to the contrary (R. 262-263) is not substantiated by the record. Further, it is not clear what if any follow-up communications took place between Dr. Haralabatos' office and the Orsis in efforts to bring Keith back in for an examination. (R. 265.) Thus, the "specific instruction" exception to the law's unwillingness to impute negligence to a minor is inapplicable here. Defendant-appellants' cases are silent on the question of imputing a parent's negligence to an infant, and are otherwise distinguishable. Most notably, three of the four cases do not concern an infant. They also generally involve fuliher considerations beyond the mere question of plaintiffs' contributory negligence. For example, this Court's decision in Sheikh v. Sinha, 272 A.D.2d 465, 707 N.Y.S.2d 241 (2nd Dept. 2000) hinged on the fact that, where the defendant showed that plaintiff had ingested three times the dosage of a 43 prescribed medication, plaintiff's expert failed to even address the issue. Here, however, plaintiff-respondents have adduced ample evidence on the question of causation, as shown above. In Gibbons v. Hantman, 58 A.D.2d 108, 395 N.Y.S.2d 482 (2nd Dept. 1977), this Court's decision rested on the lack of departures by the defendant general practitioner, who had treated the plaintiff once for complications arising from a surgery performed by another physician, in addition to a lack of causation. Even Miller v. Sullivan, 214 A.D.2d 822, 625 N.Y.S.2d 102 (3 rd Dept. 1995), which stated that it was not "reasonably foreseeable" that plaintiff's decedent would ignore his physician's advice to come see him for symptoms of a heart attack, is inapposite, as it also dealt with specific instructions to come in "right away," did not center on negligence when the plaintiff was present in the office and available for examination (as with the visits here on April 15th and 19th), and did not address the issue of imputing an adult's negligence to a child. Only one of defendant-appellants' four cases, in fact, deals with an infant at all. While defendant-appellants correctly state that the First Department, in Rivera v. Kleinman, 67 A.D.3d 482, 889 N.Y.S.2d 551 (2009), held plaintiffs' "inaction" to be the "superseding cause of the injury," they fail to note two points. First, though the Court of Appeals affirmed the First Department's decision (16 N.y'3d 757, 919 N.Y.S.2d 480 [2011]), it never reached the question of 44 "superseding" cause, stating only that plaintiffs' expert had raised no issues of fact as to departures and "did not demonstrate any causal connection" between any alleged departures and any claimed injuries. That is, though presented with the opportunity, the Court of Appeals declined to hold that the plaintiffs' inaction in the infant's case amounted to a "superseding cause." Second, it appears from the facts as set forth by the Appellate Division that the plaintiffs in the case ignored a specifically prescribed procedure. Again, no such specific instructions are present in this case, and thus the instant facts are not governed by Rivera, nor by any of the cases defendant -appellants put forth. D. IMPUTING THE PARENTS' NEGLIGENCE TO THE INFANT WOULD AT MOST GIVE RISE TO A QUESTION OF FACT FOR THE JURY. Even if we assume arguendo that Keith should be penalized for any negligence by his mother, it does not follow that this "negligence" would be the sole proximate cause of his injury such that Dr. Haralabatos would escape liability. Under New York State law, causation is established where "the defendant's negligence was a substantial cause of the events which produced the injury." Derdiarian v. Felix, 51 N.Y.2d 308,315,414 N.E.2d 666 (1980) (emphasis added); Galioto v. Lakeside Hosp., 123 A.D.2d 421, 422, 506 N.Y.S.2d 725, 726 (2nd Dept.1986); see also N.Y. PJI 2:71 (each independent and negligent act "is 45 regarded as a cause of [an] injury provided that it was a substantial factor in bringing about that injury"). Furthermore, the record evinces questions of fact on the question of the foreseeability of Mrs. Orsi's failure to bring Keith back for follow-up visits, thus requiring that the lower court's order be upheld. 1. Dr. Haralabatos deprived Keith of a substantial chance of avoiding his injury or a worsened outcome. To establish causation, "the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury." Derdiarian v. Felix, 51 N.Y2d 308, 315, 414 N.E.2d 666 (1980); N.Y PJI 2:71. The plaintiff need show no more than "that [a] delay was the cause of a diminution of a substantial chance of avoiding the devastating result that the injured plaintiff suffered." Fellin v. Sahgal, 35 A.D.3d 800, 826 N.Y.S.2d 731 (2nd Dept. 2006); see also Alicea v. Ligouri, 54 A.D.3d 784, 864 N.Y.S.2d 462 (2nd Dept. 2008); Flaherty v. Fromberg, 46 A.D.3d 743, 849 N.YS.2d 278 (2nd Dept. 2007); Jump v. Facelle, 275 A.D.2d 345, 712 N.Y.S.2d 162 (2nd Dept. 2000). The Court of Appeals' holding in Derdiarian nullifies Dr. Haralabatos' argument that Mrs. Orsi's failure to bring Keith to his follow-up appointments must be considered an "intervening" cause which, as a matter of law, would prevent Dr. Haralabatos' care from "represent[ing] the proximate cause" of Keith's injuries. (App. Bf. 39 [emphasis added].) 46 As long acknowledged in New York, more than one proximate cause of an injury is legally possible. N.Y. PH 2:70, 2:71; see also Ring v. City of Cohoes, 32 Sickels 83, 77 N.Y. 83, 1879 WL 12207 (1879). Dr. Haralabatos does not dispute this, or cite any case law to the contrary. She has not shown that as a matter of law her departures did not cause or contribute to Keith's injuries or that they were not a substantial factor in causing injmies. She does not consider that a tortfeasor physician cannot escape liability by showing subsequent negligence. Datiz v. Shoob, 71 N.Y.2d 867, 522 N.E.2d 1047,527 N.Y.S.2d 749 (1988) (citing Ravo v. Rogatnick, 70 N.Y.2d 305, 310, 514 N.E.2d 11 04 (1987). While defendant-appellants note that a "causal nexus between a defendant's conduct and the injury will be broken when there are" intervening, extraordinary and unforeseeable circumstances, they fail to heed the Court of Appeals' holding in another medical malpractice case that "whether an act is foreseeable and the course of events nonnal are questions which are generally subject to varying inferences presenting issues of fact to be resolved by the fact finder." Lynch v. Bav Ridge Obst. & Gyn. Assocs., 72 N.Y.2d 632 (1988). The evidence presents triable issues of fact regarding departures from the standard of care and causation that must be decided by a jury. Raskas, 213 A.D.2d 718 (2nd Dept. 1995). New York courts and the Second Department in particular offer repeated support for the proposition that the plaintiffs expeli need 47 not "quantify the extent to which the defendant's act or omission decreased the plaintiff's chance of a better outcome or increased [the] injury, as long as evidence is present from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased [the] injury." Alicea v. Ligouri, 54 A.D.3d 784,864 N.Y.S.2d 462 (2nd Dept. 2008); Flaherty v. Fromberg, 46 A.DJd 743, 849 N.Y.S.2d 278 (2nd Dept. 2007); Jump v. Facelle, 275 A.D.2d 345, 346 (2nd Dept. 2000). According to plaintiff-respondents' expert physician, the substandard care provided by Dr. Haralabatos constituted a "substantial factor" within the meaning of Derdiarian in causing Keith to contract osteomyelitis and allowed this disease to worsen, and in diminishing his chance of avoiding such an injury, Alicea v. Ligouri, 54 AD3d 784, 864 N.Y.S.2d 462 (2nd Dept. 2008); Flaherty v. Fromberg, 46 AD3d 743, 849 N.Y.S.2d 278 (2nd Dept. 2007). (R. 1080.) Furthermore, plaintiff-respondents' expert soundly established that the alleged negligence at issue did not take place on the dates when Keith was not present in Dr. Haralabatos' office, but rather on April 15th and 19th , when he was present. (R. 1073-1080.) For the reasons stated above, questions of fact exist as to whether and how Dr. Haralabatos' negligence on these dates caused or worsened Keith's injuries, and Dr. Haralabatos' motion was properly denied. 48 2. "Intervening cause" involves factual considerations that must be decided by a jury. Even if Mrs. Orsi's conduct contributed to Keith's injuries, this does not relieve Dr. Haralabatos of liability as a matter of law. As Dr. Haralabatos recognizes, an intervening cause will break the causal nexus between the defendant's conduct and the injury only in the presence of extraordinary, unforeseeable, independent circumstances. (App. Br. 34.) However, "whether an act is foreseeable and the course of events normal are questions which are generally subject to varying inferences presenting issues for the fact finder to resolve (Lynch v. Bay Ridge Obstetrical and Gynecological Associates, P.C., 72 N.Y.2d 632, 636, 532 N.E.2d 1239, 1241, 536 N.Y.S.2d 11, 13 (1988) (citing Derdiarian v. Felix Contr. Corp., 434 N.Y.S.2d 166,414 N.E.2d 666 (1980»). This Department has specifically held that "[ s Jince 'the determination of legal causation turns upon questions of foreseeability and "what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve."'" Mazzio v. Highland Homeowners Ass'n and Condos, 63 A.D.3d 1015, 1016,883 N.Y.S.2d 59, 61 (2nd Dept. 2009) (internal citations omitted). The facts in the record create questions of fact as to the extent to which Mrs. Orsi's failure to bring Keith to his follow-up appointments was "foreseeable" or "extraordinary," and show that despite Dr. Haralabatos' 49 expressions of concern on Keith's behalf no attempt was made to ensure that he was treated. For example, Dr. Haralabatos testified at R. 270 that she was "worried" about Keith. This anxiety on his behalf may have been exacerbated by the possibility that his antibiotic prescriptions were not completed. (R. 394-395, 553-556.) Despite these concerns and despite the missed visits, however, Dr. Haralabatos was not "worried" enough to do anything more than send a generic follow-up letter. (R. 265.) She "asked" to see the Orsis again, and "encouraged" them to return, but she could not testify that she conveyed to them the urgency of the need for follow-up care. (R. 268.) Thus, based on the concern Dr. Haralabatos expressed over Keith and her tacit acknowledgment that the Orsis may need particular encouragement to bring Keith back, there is a question of fact as to whether it was foreseeable to Dr. Haralabatos that an infection might ensue. In this case, "[i]t is up to the jury to decide if, in fact, the cause suggested by the [defendant] is equally, or more, plausible." Butler v. Seitelman, 90 N.Y.2d 987, 688 N.E.2d 494 (1997) (internal citations omitted). 3. Any alleged comparative negligence by Keith's parents does no more than create a jury question. Finally, even assuming for purposes of this point only that Mrs. Orsi's failure to bring Keith to his follow-up appointments can be held against the four- year-old infant plaintiff, then at best this creates an issue of fact as to comparative 50 negligence which must be decided by a JUry. The Second Department has consistently held that "comparative negligence is a jury question in all but the clearest cases." Rios v. Johnson V.B.C., 17 A.D.3d 654, 795 N.YS.2d 62 (2nd Dept. 2005); see also DiCicco v. Cattani, 59 A.D.3d 660, 874 N.Y.S.2d 518 (2nd Dept. 2009); CancIa v. Audobon Gardens Realty Corp., 304 A.D.2d 702, 703, 759 N.Y.S.2d 729, 730 (2nd Dept. 2003); Roach v. Szatko, 244 A.D.2d 470, 664 N.Y.S.2d 101 (2nd Dept. 1997). As illustrated above, the facts here are not "clear" enough to warrant holding, as a matter of law, that Keith's injuries were due solely to Mrs. Orsi's failure to bring him to his follow-up visits. Thus, per the jurisprudence of this Court the question of comparative negligence must go to a In sum, the above precedent provides ample opportunity for a jury to determine that Dr. Haralabatos' failures to order serial blood testing, take Keith's temperature, order subsequent x-rays, and the other departures from standards of care described elsewhere were a "substantial cause" of Keith's injuries, and/or that the departures caused a "diminution of a substantial chance of avoiding" the injury. Additionally, whether Mrs. Orsi's failure to bring Keith to his follow-up visits caused or contributed to his injury is a fact question that plaintiffs are entitled to have decided by a jury. The evidence thus presents triable issues of fact regarding departures from the standard of care and causation that must be decided by a jury. 51