Keith Orsi,, et al., Appellants,v.Susan Haralabatos,, et al., Respondents, et al., Defendants.BriefN.Y.February 13, 2013Suffolk County Clerk's Index No. 2556512006 To be argued by: JOSEPH P.AwAD Time requested: 30 minutes (!tnurt nf 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., Defendants. REPLY BRIEF OF APPELLANTS Dated: December 3, 2012 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 Fax: (516) 832-7877 FRANKLIN COURT PRESS, INC.-212-594-7902 (398-12) Reproduced on Recycled Paper Appellate Division No. 2010-096399 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................ .iv PRELIMINARY STATEMENT ............................................................................ 1 ARGUMENT ........................................................................................................... 3 POINT I. DEFENDANTS DID NOT RESPOND TO PLAINTIFFS' LEGAL ARGUMENTS REGARDING THE MISSED APPOINTMENTS SET FORTH IN THE APPELLANTS' BRIEF, OR TO THE MULTIPLE PARAGRAPHS IN PLAINTIFFS' EXPERT AFFIRMATION DEVOTED TO THE ISSUE OF CAUSATION ......................................... 3 A. DEFENDANTS' CLAIM THAT PLAINTIFFS' EXPERT'S OPINIONS ARE UNSATISFACTORY IS UNFOUNDED, AS PROVEN BY REFERENCE TO THE OPINIONS THEMSEL VES ............................................. .4 B. DEFENDANTS DID NOT ADDRESS PLAINTIFFS' POINTS ON THE LACK OF THE MISSED APPOINTMENTS' SIGNIFICANCE ....................................... 9 1. Defendants' arguments do not meet the standard for intervening cause ................................... 10 2. Defendants did not show a legal basis for stripping the infant plaintiff of his right to a jury trial ................................................................ 15 a. Defendants' legal authority on intervening causation does not warrant judgment as a matter of law ................................................................. 15 1 b. Defendants cannot show that GOL § 3-111 is not applicable .............................................. .16 c. Defendants' arguments regarding 3-111 rely on misplacement of the burden of proof ..................... 19 POINT II. DEFENDANTS' CONTENTION REGARDING THE MISSED APPOINTMENTS IS NOT PRESERVED, BECAUSE VAGUE REFERENCES TO PROXIMATE CAUSE DO NOT AFFORD PLAINTIFFS AN OPPORTUNITY TO RESPOND TO THEIR CLAIM ................................................................ 22 A. DEFENDANTS' REFERENCES TO THE MISSED VISITS IN THE RECORD ARE INCOMPLETE AND DO NOT PRESERVE THE ISSUE BEFORE THE TRIAL COURT ................................................................ 22 1. Defendants' summary judgment papers do not preserve the missed appointments ....................................... 23 2. Defendants' answer does not preserve the issue ............ 25 3. Defendants' reply does not preserve the issue ............... 26 B. THE APPELLATE DIVISION DID NOT HAVE "DISCRETION" TO ATTRIBUTE THE INFANT PLAINTIFF'S INJURY TO THE MISSED APPOINTMENTS .................................................................... 27 POINT III. THE RECORD OFFERS ABUNDANT SUPPORT FOR THE TRIABLE ISSUES OF FACT, IDENTIFIED BY TWO OTHER COURTS, AS TO DEFENDANTS' DEPARTURES FROM STANDARDS OF CARE .................................. 31 11 A. DEFENDANTS CANNOT SHOW ON THIS RECORD THAT THE TRIAL COURT'S IDENTIFICATION OF ISSUES AS TO DEPARTURES FROM STANDARDS OF CARE WAS IMPROPER ................................................... 32 CONCLUSION ...................................................................................................... 35 iii TABLE OF AUTHORITIES STATUTES CPLR 3013 ......................................................................................................... 25,26 GOL § 3-111 ............................................................................ 1, 9, 10, 16, 18, 19,20 NEW YORK CASES Court of Appeals Cases Cohn v Goldman, 76 NY 284 (1879) ................................................................ 22, 29 Datiz v Shoob, 71 NY2d 867 (1988) ................................................................. 15, 16 Dye v Lincoln First Bank, 38 NY2d 769 (1975) ............................................... 26, 29 Federal Ins. Co. v International Bus. Machs. Corp., 18 NY3d 642 (2012) ........... 28 Feinberg v Saks & Co., 56 NY2d 206 (1982) ......................................................... 29 Ferrante v American Lung Ass 'n, 90 NY2d 623 (1997) ................................... 19, 20 Friends of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065 (1979) .............. 20 Hirsch v State, 8 NY2d 125 (1960) ........................................................................ .19 In re Estate of Greats inger, 67 NY2d 177 (1986) .................................................. 30 LaTorre v Genesee Mgmt., 90 NY2d 576 (1997) ................................................... 21 Miller v Board ofEduc., 291 NY 25 (1943) ..................................................... .18-19 Nagelberg v Finegan, 268 NY 611 (1935) .............................................................. 24 Nestorowich v Ricotta, 97 NY2d 393 (2002) .................................................... 33, 34 IV New YorkInst. o/Tech. v State Div. of Human Rights, 40 NY2d 316 (1976) .......... 9 People v DeRosario, 81 NY2d 801 (1993) ................................................................ 9 Pike v Honsinger, 155 NY 201 (1898) .................................................................... 33 Ravo v Rogatnick, 70 NY2d 305 (1987) ................................................................. .16 Robillard v Robbins, 78 NY2d 1105 (1991) ...................................................... 22-23 Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957) ....................... 31 State v Avco Fin. Servs. o/NY, Inc., 50 NY2d 383 (1980) ..................................... 23 Thompson v County o/Erie, 61 NY2d 648 (1983) ................................................. 27 Two Guys/rom Harrison-NY v S.F.R. Realty Assoc., 63 NY2d 396 (1984) ... .27, 28 Vega v Restani Constr. Corp., 18 NY3d 499 (2012) ................................. .14, 24, 25 Vermette v Kenworth Truck Co., 68 NY2d 714 (1986) .......................................... 25 Weingarten v Bd o/Trustees o/NY City Teachers' Retirement Sys., 98 NY2d 575 (2002) ...................................................................................... 28 Zuckerman v New York, 49 NY2d 557 (1980) ................................................. .11,20 Appellate Division Cases Alexander v State, 36 AD2d 777 (3d Dept 1971) .................................................... 29 Beece v Guardian Life Ins. Co., 110 AD2d 865 (2d Dept 1985) ............................ 19 Binder v Supermarkets General Corp., 49 AD2d 562 (2d Dept 1975) .................. 29 Feinberg v Feit, 23 AD3d 517 (2d Dept 2005) ...................................................... .16 v Guzman v Mike's Pipe Yard, 35 AD3d 266 (1st Dept 2006) .................................. 26 Hunter v New York City Dept ofEduc., 95 AD3d 719 (1st Dept 2012) .......... .14, 25 Huston v Chenango County, 253 AD 56 (3d Dept 1937) ................................. 23, 25 Kirk v Hammock, 119 AD2d 851 (3d Dept 1986) ................................................... 29 Milashouskas v Mercy Hosp., 64 AD2d 978 (2d Dept 1978) ................................ .19 Northville Indus. Corp. v National Union Fire Ins. Co., 218 AD2d 19 (2d Dept 1995) ............................................................................................... 29 Pappalardo v NY Health & Racq. Club, 279 AD2d 134 (1st Dept 2000) .............. 20 Paul v Cooper, 45 AD3d 1485 (4th Dept 2007) .................................................... .13 Peguero v 601 Realty Corp., 58 AD3d 556 (1st Dept 2009) .................................. 22 People v Jones, 81 AD2d 22 (2d Dept 1981 ) .................................................... 22, 29 People v Slide, 76 AD3d 1106 (2d Dept 2010) ....................................................... 29 Pigno v Bunim, 43 AD2d 718 (2d Dept 1973), affd 35 NY2d 841 (1974) ..... 33, 34 Ritt v Lenox Hill Hosp., 182 AD2d 560 (1 st Dept 1992) ........................................ 26 Rivera v Kleinman, 67 AD3d 482 (1st Dept 2009), affd 16 NY3d 757 (2011) ... .17 Santiago v VIG Corp., 201 AD2d 337 (1st Dept 1994) ................................... .17, 18 Thompson v Town of Brookhaven, 34 AD3d 448 (2d Dept 2006) ............. .14, 17, 18 Tripp v Cook, 26 Wend. 143 .................................................................................... 30 Vaughan v St. Francis Hosp., 29 AD3d 1133 (3d Dept 2006) ........................ .14, 15 VI Werdein v Johnson, 221 AD2d 899 (4th Dept 1995) .............................................. 25 Zuck v Sierp, 169 AD2d 717 (2d Dept 1991 ) ......................................................... .19 FEDERAL CASES Bank of NY v First Millennium, Inc., 607 F3d 905 (2d Cir 2010) .......................... 28 Windsor v United States, 2012 US App LEXIS 21785 (2d Cir. Oct. 18,2012) ..... 28 MISCELLANEOUS 12-5501 NY Civ Prac: CPLR P 5501.11. .......................................................... 28, 29 Law Rev. Comm. Comments, 1935 Leg Doc 60[C]. .............................................. 21 Newman NY App Practice § 2.07 ........................................................................... 29 Prosser, Torts § 41 (4th ed. 1971) ....................................................................... 11, 18 Weinstein-Kom-Miller, NY Civ Prac, 3212.09 ..................................................... .25 Vll PRELIMINARY STATEMENT Glaringly absent from the Respondents' Brief submitted by Dr. Haralabatos and Stony Brook Orthopedic Associates is any acknowledgment or refutation of the fact that the central issue in this case - whether acts or omissions of a parent can be visited upon a non sui juris infant plaintiff to a personal injury action at the expense of the infant's recovery - has already been resolved by the New York State Legislature in the infant plaintiffs favor (see GOL § 3-111). While plaintiffs explained this issue at length in their opening brief, defendants' arguments utterly fail to appreciate its significance in light of the instant facts. Defendants cannot show conclusively that the acts or omissions here were so "extraordinary" and "unforeseeable" that they warrant judgment as a matter of law in lieu of submission to a jury; they likewise fail to rebut plaintiffs' showing that Keith Orsi's parents were anything other than involved with and concerned about their son's health and welfare. Where Keith's parents were worried enough to bring him to his pediatrician on March 19 after he developed symptoms of an infection, and attentive enough to reschedule each of the three missed appointments from April 22 to May 3, there is a question of fact as to whether the inability to bring Keith to his missed appointments was "extraordinary" enough to amount to an intervening cause. The Respondents' 1 Brief is inadequate to support defendants' claim that they were entitled to judgment as a matter of law on this issue. Plaintiffs respectfully submit three points in reply to the Respondents' Brief. First, the expert evidence plaintiffs presented to the trial court repeatedly showed how Dr. Haralabatos caused or contributed to Keith Orsi's bone infection. Defendants' arguments are factually and legally inadequate to show otherwise. Second, defendants' vague references to a lack of proximate cause do not preserve an issue of intervening cause for review. Third, the Record offers abundant support for the identification by two lower courts of triable issues of fact as to defendants' departures from standards of care. F or all of these reasons, the Appellate Division's order should be reversed and the order of the trial court reinstated. 2 ARGUMENT POINT I. DEFENDANTS DID NOT RESPOND TO PLAINTIFFS' LEGAL ARGUMENTS REGARDING THE MISSED APPOINTMENTS SET FORTH IN THE APPELLANTS' BRIEF, OR TO THE OPINIONS OF PLAINTIFFS' EXPERT ON THE ISSUE OF CAUSATION. In response to plaintiffs' showing at pages 13-14 of the Appellants' Brief that their expert orthopedic surgeon explicitly linked Dr. Haralabatos' departures with Keith Orsi's bone infection, defendants could not cite any portion of the record where their own "hired expert physicians" CRespo Br. 60) addressed the triable issues raised by plaintiff s expert. Defendants never submitted any expert evidence - only assumptions and speculation by their attorneys - to show that attending the missed appointments would have resulted in a different outcome. These arguments do not substitute for expert medical opinion. There is no basis for the Appellate Division's conclusion that these facts present no triable question of causation. Defendants do not contest that the Appellate Division's decision was necessarily premised on the three appointments that Keith and his parents were unable to attend on April 22, April 29, and May 3, 2004. Given the lack of any supporting expert opinion in the record, this unsubstantiated holding shows that the 3 Second Department blatantly substituted its own opinion (i.e. that parental acts caused the injury) for expert medical opinion, in derogation of the standard of review on a motion for summary judgment. The Respondents' Brief continues in this vein of disregard for established law on summary judgment by attempting to foist the burden of proving their claim onto plaintiffs. But try as they might, the record evinces triable issues of fact that should have prevented the Second Department from granting them judgment as a matter of law. Plaintiffs show below how a reference to the content of plaintiffs' expert's OpInIOnS gives the lie to defendants' claim that the opinions rely on misapprehensions or are otherwise unfounded. Plaintiffs further show that defendants fail to eliminate any questions of fact resulting from the missed appointments, and that there is no legal basis for their efforts to do so. Defendants have not shown grounds to uphold the Appellate Division's erroneous decision. A. DEFENDANTS' CLAIM THAT PLAINTIFFS' EXPERT'S OPINIONS ARE UNSATISFACTORY IS UNFOUNDED, AS PROVEN BY REFERENCE TO THE OPINIONS THEMSELVES. A review of plaintiffs' expert opinion evidence refutes defendants' insubstantial claims at Point I of their Brief that this evidence is insufficient to raise triable issues of fact. First, defendants take issue with several points on the question of Dr. 4 Haralabatos' antibiotic prescription (Resp. Br. 30-31, 33-34, arguing that there is no evidence Keith had been off antibiotics for "a number of days" as of April 15). The problem with the defendants' reliance on the fact that Keith's pediatrician prescribed Cephalosporin on March 29 is that there is no indication in the record of what the duration of that prescription was (R. 1073). As plaintiffs' expert stated at R. 1080, "the longer an unresolved skin infection at the pin site was allowed to linger, the higher the chance that the infection could spread along the portal to the bone." By April 15 Keith could have been off antibiotics for as long as two weeks - nothing in the record states otherwise - supporting that prophylactic antibiotics were required to stave off infection as of April 15 (R. 1080). Furthermore, plaintiffs' expert does in fact take issue with the use of Cefzil on April 19 in the absence of any follow-up studies, stating at R. 1083 that the "physical examination and clinical picture should have been normal as of May 4th had the Cefzil effectively treated the skin infection." Absent serial blood testing it was not possible for Dr. Haralabatos to assess the Cefzil's effectiveness (R. 1077-1078; cf Resp. Br. 33-34), and the lack of any follow-up studies does not allow a conclusive determination that Cefzil was an appropriate treatment. This leads to the second problem with defendants' arguments, i.e. that they overlook the significance of plaintiffs' expert's opinions with respect to serial 5 blood testing. The statement at Resp. Br. 30-31 that blood testing ordered on April 15 "registered normal readings" for various indicators of infection ignores that this blood work was "only a snapshot" (R. 1077), even though Dr. Haralabatos herself testified to the importance of watching "trends" of these indicators (R. 237-238, 254) and plaintiffs' expert agreed with the need for this ongoing course of action (R. 1077). This statement also ignores that the WBC count and ESR level were in the "high range of normal," which given the clinical picture as of April 15, indicated an unresolved infection or one that was about to recur. (R. 1077.) Increasing levels of C-RP and ESR during serial testing would indicate worsening infection and require clinical follow-up, further testing, and treatment. (R. 1086- 1092.) Dr. Nachman testified that follow-up care after starting an antibiotic is "critical" so as to assess whether the antibiotic treatment is "working" or effective in treating an infection. (R. 499.) "If," as Dr. Haralabatos testified, "you're following an infection, you may watch [ESR, C-RP] until they trend to normal. You may use them to help determine if your antibiotics were appropriate and you had good reaction to them." (R.254.) Plaintiffs' expert identified Dr. Haralabatos' failure to order serial testing beginning with the April 19th visit as a departure from standards of care. (R. 1077, 1083.) Whether such testing, once ordered, could or would have been 6 obtained is a question of fact, and defendants' attempts to answer it in their Brief rely on pure speculation. On a related note, defendants ignore an additional claim by plaintiffs' expert regarding the failure to rule out infection, i.e. that in failing to take Keith's temperature on April 15 and 19 Dr. Haralabatos deprived herself of a simple and effective means of discerning the presence of fever, which is a sign of infection and one indicator that Keith required further treatment (R. 235, 499, 1076; R. 487 [Dr. Nachman testified that it is "much more appropriate to do a physical exam on a child than to rely on lab tests"]). The foregoing arguments beg the question ansmg from a fourth failing in defendants' submissions, specifically their claims (at Resp. Br. 30-31 and 35) that a wound culture would not have been useful in determining whether the drainage from Keith's elbow was exudate (merely "indicative of movement around the pins," R. 255) or pus, which would indicate an infection (R. 367, 370, 499, 1073-1074). Plaintiffs' expert addressed this argument, stating at R. 1078 that "[w]hile [a] wound culture would probably show contaminants in addition to the infecting pathogen, such culture would probably have contained and shown the infecting pathogen(s) as well as the contaminants - and therefore been of assistance" (emphasis added). This would have allowed Dr. Haralabatos to order 7 an appropriate treatment for the infection. An effective treatment, unlike the Cefzil, would have resulted in a different clinical picture later in Keith's treatment (R. 1082-1083). Finally and critically, defendants' arguments fail to account for the fact that even a "superficial" skin infection could and did progress to an infection of the bone. (R. 1081-1082.) Plaintiffs' expert explained that "[a]s mentioned above, an improperly treated skin infection around a pin site can lead to osteomyelitis. [R. 246; R. 520-521]. Pathogens can 'sit there without obvious osteomyelitis.' [R. 556]. A risk of infection is posed by the exposed Kirschner wires breaking the skin [R. 189], with the wires providing a portal (or tract) to the bone" (R. 1082). Plaintiffs' expert explained that, in the expert's opinion, that is what happened here (R. 1082). The expert explained that standards of care called for Dr. Haralabatos to take further measures on April 15 and April 19 to treat Keith's skin infection and prevent its progression, such as ordering X rays that were not "limited" (R. 823, 1073) or serial blood testing to assess the effectiveness of her chosen antibiotic (R. 1078, 1083). The expert explained that Dr. Haralabatos' election to depart from standards of care in treating Keith's skin infection was a substantial factor in causing his bone infection (R. 1081). In sum, the record is replete with opinion evidence by plaintiffs' 8 expert orthopedic surgeon that Dr. Haralabatos' departures from standards of care caused, contributed to, or were substantial factors in the eventual development of Keith Orsi's bone infection. These expert opinions created triable issues of fact, and defendants did not submit any expert evidence to challenge them in reply. There was no basis in the record for the Second Department's decision, which was premised on its own medical opinion rather than that of any expert, and which must accordingly be reversed. B. DEFENDANTS DID NOT ADDRESS PLAINTIFFS' POINTS ON THE LACK OF THE MISSED APPOINTMENTS' SIGNIFICANCE. Defendants' failure to preserve the issue of the missed appointments (as discussed below at Point II) is merely a threshold matter (People v DeRosario, 81 NY2d 801, 803 [1993]; New York Inst. of Tech. v State Div. of Human Rights, 40 NY2d 316, 321 [1976]; cf Resp. Br. 38). Therefore, plaintiffs devoted a significant portion of the Appellant's Brief to arguing the merits of the missed appointments. Defendants' dismissive attribution of the preservation argument to an imagined "implicit recognition" by plaintiffs that their care did not cause the infant plaintiff's injuries comes at the expense of responding to these arguments. Specifically, the Respondents' Brief shows an unfortunate failure by defendants to appreciate the significance of GOL § 3-111 as well as the necessity of allowing a 9 jury to consider the parties' arguments on the issue of causation. The full extent of defendants' argument on the missed appointments and the application of GOL § 3- 111 is addressed under the subpoints below. 1. Defendants' arguments do not meet the standard for intervening cause. The facts of this case require consideration by a jury, as borne out by plaintiffs' showing in the Appellants' Brief that 1) plaintiffs submitted the expert conclusions of an orthopedic surgeon that substantiate a causal link between Dr. Haralabatos' actions and Keith Orsi's injuries; 2) Dr. Haralabatos' negligence was a substantial factor in causing Keith Orsi' s injuries; and 3) the foreseeability of Keith's infection following Dr. Haralabatos' negligence must likewise be decided by a finder of fact, defendants' speculative and unsubstantiated defenses notwithstanding. Defendants did not respond to the lengthy recitation of plaintiffs' expert's opinion on the question of causation (App. Br. 39-40), except to cite their own experts' generalized assertions that everything Dr. Haralabatos did complied with standards of orthopedic care, and that there was no basis to conclude Keith had developed osteomyelitis prior to May 4th. (Resp. Br. 41.) This opinion is rendered without support. 10 Defendants did not respond to plaintiffs' explanation (App. Br. 37-41) of how Dr. Haralabatos' negligence "substantially" caused Keith's injuries, i.e. it was an act without which his injuries would not have occurred (see e.g. Prosser, Torts § 41 at 239 [4th ed 1971]). As established at pages 22-23 of the Appellants' Brief, their experts did not offer any opinions as to the significance of the missed appointments, or explain that the missed visits were the proximate cause of injury to the infant, or state 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 if he had returned to Dr. Haralabatos on April 22, April 29, or May 3, or that the missed visits precluded Dr. Haralabatos' liability for the negligence that already occurred, or that the missed visits "actively operated" in producing harm to Keith. For defendants to successfully move for summary judgment on a showing that the infant plaintiff s injuries resulted from the "intervening cause" of the missed appointments, the burden was on them to show that these missed appointments made a difference in the infant plaintiffs outcome (Zuckerman v New York, 49 NY2d 557 [1980]). Ultimately, defendants failed to carry this burden. Although defendants at least attempted to argue that Keith's parents' inability to bring him to his appointments was extraordinary and not foreseeable, 11 thereby satisfying the elements of an intervening cause, their attempt falls short. This is because defendants' construction of the Orsis as careless parents ignores the facts that Mrs. Orsi contacted Dr. Haralabatos' office of her own accord when Keith developed a fever shortly after his initial operation, and followed the instructions to take him to his pediatrician. (R. 662-663, 721-722.) Defendants ignore the fact that Mrs. Orsi continued to monitor Keith and brought him back to SBUH of her own accord on the following day when his symptoms had not abated, and did not leave his side for the duration of this admission. (R. 664, 668.) Defendants ignore the fact that the Orsis rescheduled each one of the three appointments that they had unavoidably missed. At no time did Keith's parents ever refuse to provide him treatment for any of his symptoms, and at no time did they ever disregard a specific instruction for his care. Defendants ignore all the facts which work against the image of the Orsis as irresponsible caregivers which they urge on this Court. Instead, they use speculation and gaps in the record to create an impression of the Orsis as neglectful parents and unsympathetic plaintiffs. For instance, defendants claim that instead of missing the appointments, plaintiffs "could have arranged for alternative transportation - such as by bus, by taxi, or by renting another car - but the record reflects no such effort. The Orsis could have promptly rescheduled their April 22 12 and 29 appointments upon realizing they had car trouble, instead of failing to show without any advance notice to Dr. Haralabatos or her staff." Of course, in lieu of submitting hypothetical perfect fixes to this Court, defendants "could have" attempted to inquire at the plaintiff parents' depositions whether the Orsis ever attempted to "arrange for alternative transportation;" instead, they never sought to find out whether such transportation was available or why, if it was, the Orsis did not obtain it. Since defendants support their own arguments with speculation, plaintiffs further note that Dr. Haralabatos "could have" ensured that someone from her office contact the Orsis and inform them that it was extremely urgent that Keith attend his next appointment because he was at risk of a severe infection; if Dr. Haralabatos, a Board-certified orthopedist, could not foresee the possibility of such an outcome, this Court should not hold laypersons such as the Orsis to a higher standard. Defendants additionally failed to respond to plaintiffs' showing that any claim related to the missed appointments (assuming such claim is preserved in the record) requires submission to a jury. They overlooked plaintiffs' discussion of the cases cited in the Order on appeal (R. CA5) which further supports (along with their own authority cited at Resp. Br. 45, Paul v Cooper, 45 AD3d 1485 [4th Dept 2007]), that "[ q]uestions concerning what is foreseeable are usually for the trier of 13 fact" (App. Br. 30). Instead, defendants' proposed basis for stripping the infant plaintiff of his right to a jury trial is the speculative claim that "Dr. Haralabatos might have detected Keith Orsi' s osteomyelitis and ordered appropriate treatment" if the Orsis had been able to acquire transportation to her office on April 22, April 29, or May 3 (Resp. Br. 56) (emphasis added). Such speculation does not warrant the "drastic" remedy of judgment as a matter of law. On this motion for summary judgment, where all the facts must be construed in the light most favorable to plaintiffs (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]; Hunter v New York City Dept of Educ., 95 AD3d 719 [1st Dept 2012]), defendants have failed to show that the facts of this case allow for "only one conclusion" (Thompson v Town of Brookhaven, 34 AD3d 448 [2d Dept 2006]), i.e. that the missed appointments were unforeseeable and extraordinary. Defendants have not shown that the missed appointments barred Keith's recovery as a matter of law. Rather, this is a factual issue which necessitates determination by a jury. 14 2. Defendants did not show a legal basis for stripping the infant plaintiff of his right to a jury trial. a. Defendants' legal authority on intervening causation does not warrant judgment as a matter of law. Plaintiffs distinguished the matter of Vaughan v St. Francis Hosp. (29 AD3d 1133 [3d Dept 2006]) at pages 59-60 of the Appellant's Brief - a point that is lost in the Respondents' papers. Again, the dispositive question in Vaughan - the "fundamental element" of the existence of a duty - is not implicated on these facts, because the Second Department already identified issues of fact regarding Dr. Haralabatos' duty to Keith Orsi and whether it was breached. On the other hand, defendants have failed to show that the central case upon which plaintiffs rely does not require a reversal of the Order on appeal. Datiz v Shoob (71 NY2d 867 [1988], in which this Court held that there was "evidence in the record from which the jury could have concluded that the defendant. . .had been independently negligent in diagnosing the infant plaintiff s condition, and that this mis-diagnosis constituted a proximate cause of plaintiff s injuries" despite the later negligence of a subsequent treating physician), was amply discussed and analogized at pages 34-36 and 42-43 of the Appellants' Brief. In attempting to distinguish this case, however, defendants mistakenly focus exclusively on the fact that the plaintiff in Datiz "produced credible opinions, based on objective medical 15 evidence, that a defendant's conduct had contributed to the plaintiff s adverse outcome" (Resp. Br. 60). This distinction fails in defendants' omission of any discussion of what the extent of those credible opinions is. It does not avail them to argue that "[u]nlike the expert testimony credited in Datiz, Ravo, and Feinberg, the affidavit of the Orsis' expert physician does not substantiate how any of Dr. Haralabatos' [acts] caused or worsened Keith Orsi's osteomyelitis" (Resp. Br. 64), because they do not discuss the expert testimony in these cases. Defendants do not claim to have reviewed the briefs submitted in Datiz, or in any of these three cases, and they certainly make no reference to the records on appeal in these matters. It IS impossible for them to factually distinguish cases without any factual discussion. The following point from the Appellants' Brief bears repeating: "There is no reason why non-negligent acts by a layperson and parent should bar recovery to an infant plaintiff when negligence by a subsequent physician does not." This Court's precedent requires that this case be submitted to ajury. b. Defendants cannot show that GOL § 3-111 is not applicable. Defendants argue with respect to GOL § 3-111 that plaintiffs cannot show, as a matter of law (Resp. Br. 67), that the acts of the plaintiff parents did not interrupt the causal link between departures from standards of care by Dr. 16 Haralabatos - the same departures that were identified by two lower courts - and the infant's injuries. 1 Despite the lack of any factual predicate, they doggedly support their claim by relying on cases which do not control the facts before the Court (Rivera v Kleinman, 67 AD3d 482 [1st Dept 2009], aff'd 16 NY3d 757 [2011]; Thompson v Town of Brookhaven, 34 AD3d 448 [2d Dept 2006]; Santiago v VIG Corp., 201 AD2d 337 [1st Dept 1994]), and in fact where this argument does not appear to have been brought to the court's attention, or at least did not factor into the courts' decisions. The lone Court of Appeals case which defendants cite on this point, Rivera v Kleinman (16 NY3d 757 [2011], aff'g 67 AD3d 482 [1st Dept 2009]), noticeably lacks any discussion of departures from standards of care. That is, there was nothing in Rivera to indicate that the parental inaction superseded negligent acts by the defendants. In the case at hand, however, the Appellate Division identified issues of fact regarding departures from standards of care by Dr. Haralabatos ("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," R. CAS). Thus, Rivera does not control the facts now before the Court. This argument conflates the plaintiff s burden of proof necessary to prevail at trial with the burden necessary to defeat a motion for summary judgment. (See Point I[B][l][c] infra.) 17 The remaining two cases defendants cite in support of this issue, Thompson v Town of Brookhaven (34 AD3d 448 [2d Dept 2006]) and Santiago v VIG Corp. (201 AD2d 337 [1st Dept 1994]), are Appellate Division cases which are not binding on this Court. Furthermore, in Thompson there is no indication that the court ever considered GOL § 3-111, or what its effect would have been absent the two other unforeseeable, superseding circumstances (see also Santiago, supra) that were unrelated to the acts of the infant's parent. Here, unlike Thompson, the established facts - specifically the opinions of plaintiffs' expert orthopedic surgeon, rendered with a reasonable degree of medical certainty - do not "permit only one conclusion to be drawn." Defendants have not shown how a series of missed appointments (an instance of the "occasional negligence which is one of the ordinary incidents of human life" [Prosser, Torts § 44 at 274 (4th ed 1971)]) was ''unforeseeable'' as a matter of law, and this argument fails.2 (Cf App. Br. 30, 69, 73-74.) This Court's precedent establishes that "[w]here the defendant has by his conduct set in motion forces which would not have resulted in harm to another but for the failure of a third person to act or perform some duty which the law The foreign decisions defendants cite in footnote 5 of their Brief were each issued after a dispute following a trial of the matter in question. They therefore deal with different burdens of proof than that on a motion for summary judgment. (See Point I[B][I][c] infra.) 18 imposes upon him the failure on the part of such third person to perform the act does not break the causal relation between the defendant's conduct and the plaintiffs damage." Miller v Board of Educ. (291 NY 25, 29 [1943] [internal citations omitted]). This precedent controls and requires the question of causation to be decided by a jury. c. Defendants' arguments regarding § 3-111 rely on misplacement of the burden of proof. Defendants fail in attempting to negate the authority plaintiffs cite in support of GOL § 3-111. For example, their handy dismissal of the cases listed at page 72 is premised on the false distinction that the claim of the missed appointments severing the causal chain operates separately and apart from an affirmative defense. The "astounding" statement that "the plaintiff in a medical malpractice action bears the 'burden of establishing by competent evidence the causal relationship between the malpractice and' the plaintiffs adverse outcome" (Resp. Br. 73; see also Resp. Br. 48) may be an accurate characterization of the plaintiffs ultimate burden at trial (Ferrante v American Lung Ass'n, 90 NY2d 623, 630 [1997]), but at this juncture it "contravenes a hornbook [civil procedure] principle learned by every first-year law student" (Resp. Br. 46);3 that is, on a Each of these cases defendants cite on this point is limited to the burden either at trial - Hirsch v State (8 NY2d 125 [1960]), Reece v Guardian Life Ins. Co. (110 AD2d 865 [2d Dept 19 motion for summary judgment, the burden lies with the defendants as movants to establish their entitlement to judgment as a matter of law, after which it falls to plaintiffs to show triable issues of fact. Ferrante, supra ("The defendant has confused plaintiffs ultimate burden with the showing needed to withstand a summary judgment motion. Generally, a plaintiff is not required to prove his claim to defeat summary judgment" [internal citations omitted]; accord Pappalardo v NY Health & Racq. Club, 279 AD2d 134 [1st Dept 2000]). The missed appointments operate as an affirmative defense here. That is, the burden is presently on defendants to prove their entitlement to judgment as a matter of law on a motion for summary judgment, whether by use of the same facts supporting an affirmative defense or otherwise. These facts are not available to defendants by virtue of GOL § 3-111, and furthermore do not account for the existence of triable issues based on the facts now before the Court. Moreover, even if the cases defendants purport to distinguish at pages 72-73 (cf App. Br. 52) operate only to bar affirmative defenses, they still apply 1985]), and Milashouskas v Mercy Hosp. (64 AD2d 978 [2d Dept 1978]) - or else on a plaintiffs motion to serve an amended complaint, Zuck v Sierp (169 AD2d 717 [2d Dept 1991]). Again, defendants misconstrue the well-established law of which party bears the burden of proof on summary judgment versus at a different stage in the proceedings (Ferrante, supra; Zuckerman, supra; Friends of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065 [ 1979]). 20 against several of the defenses asserted by defendants here. Most pointedly, defendants plead as their fifth affirmative defense that "any injuries and/or damages ... sustained by the infant-plaintiff ... are attributable in whole or in part to the culpable conduct of the plaintiffs, LISA ORSI and MICHAEL ORSI" (R. 62). The first (R. 61) and eleventh affirmative defenses (R. 64) implicate similar facts. These defenses go to the heart of the arguments in the Respondents' Brief. They implicate the same concerns this Court sought to guard against in LaTorre v Genesee Mgmt. (90 NY2d 576 [1997] ), specifically that the Legislature intended General Obligations Law § 3-111 to block the use of alleged parental negligence as a defense, lest "what is soundly forbidden directly would paradoxically be recognized and available indirectly" ( LaTorre, supra at 579; see also App. Br. 52, 54). The law prevents defendants from "visiting the sins of the father upon the children" (Law Rev. Comm. Comments, 1935 Leg Doc 60[C] at 23), and does not allow defendants to make these claims. 21 POINT II. DEFENDANTS' CONTENTION REGARDING THE MISSED APPOINTMENTS IS NOT PRESERVED, BECAUSE VAGUE REFERENCES TO PROXIMATE CAUSE DO NOT AFFORD PLAINTIFFS AN OPPORTUNITY TO RESPOND TO THEIR CLAIM. A. DEFENDANTS' REFERENCES TO THE MISSED VISITS IN THE RECORD ARE INCOMPLETE AND DO NOT PRESERVE THE ISSUE BEFORE THE TRIAL COURT. Defendants do not contest that the Appellate Division's decision was necessarily premised on the three appointments that Keith and his mother were unable to attend on April 22, April 29, and May 3, 2004. However, they are unable to substantiate the Appellate Division's reliance (R. CA5) on inapposite authority, which plaintiffs distinguished at pages 27 et seq. of the Appellants' Brief. Defendants are also unable to show where in the record the issue of the missed visits (as opposed to vague references to proximate cause generally) was "fully articulated" and thus preserved for appellate review. For an argument to be preserved, it must have been fully articulated before the court of original jurisdiction (Peguero v 601 Realty Corp., 58 AD3d 556, 559 [1st Dept 2009]), i.e. "at such a time as to fairly apprise the court and the opposing party of the nature and scope of the matter contested, and to allow the necessary evidentiary treatment and trial-level advocacy to be pursued" (People v Jones, 81 AD2d 22,41-42 [2d 22 Dept 1981]; accord Cohn v Goldman, 76 NY 284,287 [1879]; see also Robillard v Robbins, 78 NY2d 1105 [1991]; State v Avco Fin. Servs. of NY, Inc., 50 NY2d 383 [1980]). In addition to factual issues, a party may not argue a new theory on appeal that was not presented to the court of original jurisdiction (Huston v Chenango County, 253 AD 56, 60 [3d Dept 1937]). Although defendants go to great lengths to show that proximate cause generally was preserved in the record, they are strangely silent on the question of the missed appointments. Despite their claims that the record reflects these appointments, not one of the three portions of the record defendants cite shows that this issue was "fully articulated" before the court of original jurisdiction such that it could be properly considered by the Appellate Division. 1. Defendants' summary judgment papers do not preserve the missed appointments. As stated elsewhere, even acknowledging the brief notation of the missed visits in the opinions of defendants' own "hired expert physicians," these experts did not offer any opinion on their significance. In fact, defendants have not shown in their Respondents' Brief where these experts addressed the issue of causation at all, instead quoting only portions that relate to the purported adequacy of Dr. Haralabatos' care. The only reference that can be gleaned at all from these 23 OpInIOnS comes pages after the experts note the missed appointments, but the experts do not render any opinion as to their significance. Even the vaguest, most speculative of defendants' claims - that Dr. Haralabatos might have detected Keith Orsi's osteomyelitis and ordered appropriate treatment (Resp. Br. 56), without stating what she might have seen that would arouse suspicions of osteomyelitis or what the "appropriate treatment" might have been - is not supported by their experts. Defendants further point to vague assertions in a memorandum of law (Resp. Br. 40), which is not only outside the record (Nagelberg v Finegan, 268 NY 611 [1935]), but as quoted in their Brief entirely fails to mention the issue of the missed appointments. Additionally, there is nothing in the introductory "precis" or elsewhere in the attorney's affirmation (cf App. Br. 25 with Resp. Br. 40) that raises the issue of whether the missed visits were an intervening or superseding cause in the progression of Keith's illness; rather, the only claim is that the missed visits "make[] it impossible to determine when precisely before ... May 5, 2004, the osteomyelitis began or became apparent." In other words, defendants' papers rely on speculation to support a grant of judgment to defendants as a matter of law. Neither speculation nor conclusory statements in summaries of arguments can sustain an award of summary judgment, where the facts must be 24 viewed in favor of the non-moving party (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]; Hunter v New York City Dept of Educ., 95 AD3d 719 [1st Dept 2012]). Defendants' unsupported and speculative attorney's affirmation does not suffice to take this case from a jury (Vermette v Kenworth Truck Co. 68 NY2d 714 [1986]; Werdein v Johnson, 221 AD2d 899 [4th Dept 1995]; Weinstein-Korn- Miller, NY Civ Prac, 3212.09 pg 32-189). 2. Defendants' answer does not preserve the issue. Defendants also argue at page 39 that this claim was preserved in the pleadings. However, as the record reflects, defendants' answer is non-specific and inadequate to put the parties and the trial court on notice of defendants' claims. Their boilerplate denial of plaintiffs' allegation that acts or omissions by defendants caused the infant plaintiffs injuries reads in its entirety as follows: "TWELFTH: Deny each and every allegation contained in paragraphs "20," "24," "28," "33," "34," "35" and "36" of Plaintiffs' Verified Complaint" (R. 50-51). Although defendants argue that a general lack of proximate cause may have been asserted early on in the pleadings, this does not show that defendants argued the theory that the plaintiffs' own actions constituted an intervening, superseding cause at that point, and an appeal is too late to raise this theory for the 25 first time (Huston, supra; cf CPLR 3013 ("Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved ... "). On a motion described as "the procedural equivalent of a trial" (Dye v Lincoln First Bank, 38 NY2d 769 [1975]), blanket statements such as "Dr. Haralabatos was not negligent at all" (R. 39) and "Dr. Haralabatos' care and treatment: .. was reasonable and consistent with good and accepted orthopedic practice" (R. 40) do not preserve this issue. 3. Defendants' reply does not preserve the issue. Defendants' claim that the reply illustrates the role of the missed appointments as an intervening, superseding cause of the injuries (Resp. Br. 42) ignores the well-known proposition that new arguments may not be raised in reply (Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1st Dept 1992]; Guzman v Mike's Pipe Yard, 35 AD3d 266 [1st Dept 2006]). Addressing defendants' arguments on the merits, the Respondents' Brief shows that their reply on the issue of causation was limited to the issue of further blood testing (defendants "responded that such testing would have been impossible," inviting guesswork and speculation), not causation of the injury 26 generally. Further, the lengthy excerpt from the trial court's decision which defendants include in their Brief contains nothing more than a recitation of defendants' assertions as to plaintiffs' alleged deficiencies in opposing summary judgment. There is nothing in this excerpt that constitutes a finding by the trial court that defendants raised the issue of the missed appointments. There is simply no evidence in the Record that the issue of whether the missed appointments constituted a superseding, intervening cause was "fully articulated" such that it fell within the purview of appellate review. Defendants did not preserve this matter, and because this was the hinge on which the Second Department's decision turned (see App. Br. 26-30), the decision must be reversed. B. THE APPELLATE DIVISION DID NOT HAVE "DISCRETION" TO ATTRIBUTE THE INFANT PLAINTIFF'S INJURY TO THE MISSED APPOINTMENTS. Defendants claim that the standard of review for summary judgment is "abuse of discretion" (Resp. Br. 24). They appear to be the first to interpret Thompson v County of Erie (61 NY2d 648, 649 [1983]) in this manner, as "shepardizing" the case shows that no other authority has ever relied on it to support this proposition. Furthermore, two other Court of Appeals cases have been cited in opposing parties' briefs in support of the claim that the proper standard of 27 review is de novo (Two Guys from Harrison-NY v S.F.R. Realty Assoc., 63 NY2d 396 [1984]; Weingarten v Bd of Trustees of NY City Teachers' Retirement Sys., 98 NY2d 575 [2002], cited in Federal Ins. Co. v International Bus. Machs. Corp., 18 NY3d 642 [2012]), and federal cases are instructive in confirming this (Windsor v United States, 2012 US App LEXIS 21785 [2d Cir Oct. 18, 2012], citing Bank of NY v First Millennium, Inc., 607 F3d 905 [2d Cir 2010]). Whichever standard this Court applies, defendants were confined to the "evidentiary proof in admissible form" (Resp. Br. 24) that they submitted to the trial court, which could not establish the absence of triable issues of fact on the question of the missed appointments as the proof failed to raise this issue at all. Anticipating obstacles to success on this issue, defendants argue (at Resp. Br. 44- 45) that the "interest of justice" allowed the Second Department to consider their unpreserved points regarding the Orsis' missed visits. However, there is no indication in the order appealed from (R. CA4-5) that the Appellate Division relied on this doctrine in issuing its decision; furthermore, this doctrine is unavailable. Practice commentaries that discuss the "interest of justice" demonstrate that this exercise of jurisdiction over unpreserved issues is limited to circumstances involving a new trial and objections that were not preserved at the trial stage of the litigation (12-5501 NY Civ Prac: CPLR P 5501.11 ["the 28 Appellate Division may reverse a judgment and grant a new trial 'in the interests of justice' on the basis of error during the trial that is deemed fundamental even though no proper objection to the error was made"]). It does not apply to proceedings on paper, denominated "the procedural equivalent of a trial" (Dye, supra), where the parties had time and resources to consider all possible claims and defenses. (See e.g. Cohn, supra; Kirk v Hammock, 119 AD2d 851, 854 [3d Dept 1986].) Thus the "interest of justice" applies to a party who has been subjected to a "fundamental trial error" (Alexander v State, 36 AD2d 777, 778 [3d Dept 1971]), such as inconsistent verdicts (Feinberg v Saks & Co., 56 NY2d 206, 211 [1982]), an erroneous charge (Binder v Supermarkets General Corp., 49 AD2d 562 [2d Dept 1975]), or error on the admissibility of evidence (People v Slide, 76 AD3d 1106 [2d Dept 2010]; Newman, NY App Practice § 2.07, at 2-97), not where defense counsel failed to present an issue to the trial court, thus depriving the opposing party of the opportunity to marshal evidence in opposition (Northville Indus. Corp. v National Union Fire Ins. Co., 218 AD2d 19, 34 [2d Dept 1995]; People v Jones, 81 AD2d 22,41-42 [2d Dept 1981]). Even assuming the Appellate Division had discretion to consider defendants' novel argument, such discretion is limited by the facts of a given case 29 (In re Estate of Greatsinger, 67 NY2d 177, 181 [1986]), and a court may not exercise discretion contrary to law. "Judicial discretion is a phrase of great latitude; but it never means the arbitrary will of the judge. It is always (as Chief Justice Marshall defined it) 'A legal discretion to be exercised in discerning the course prescribed by law; when that is discerned, it is the duty of courts to follow it. It is to be exercised, not to give effect to the will of the judge, but to that of the law'" (Tripp v Cook, 26 Wend. 143, 152, cited by Estate of Greats inger, supra). Based on the showings in the Appellants' Brief (that New York state law bars consideration of the missed appointments as a superseding, intervening cause [App. Br. 67-69] and that questions of multiple causes, intervening cause, foreseeability, and reasonableness must be put to a jury as a matter of law [App. Br. 69-74]), it was not within the Second Department's "discretion" to credit defendants' arguments on the issue of the missed appointments. Defendants' claim that the Appellate Division had "discretion" to consider this claim "in the interest of justice" is wrong through and through. 30 POINT III. THE RECORD OFFERS ABUNDANT SUPPORT FOR THE TRIABLE ISSUES OF FACT, IDENTIFIED BY TWO OTHER COURTS, AS TO DEFENDANTS' DEPARTURES FROM STANDARDS OF CARE. Defendants' authority in support of their efforts to re-argue the questions of Dr. Haralabatos' departures from standards of care is unpersuasive. Notably, the decisions defendants use for support (see Resp. Br. fn. 2) have apparently not been cited for this proposition in the century-plus since they were issued, and furthermore they should not be allowed to control here. Plaintiffs note that both courts which have already considered the facts of this case have identified triable issues on the question of Dr. Haralabatos' departures from standards of care (R. 12-15, CA5), and - particularly when the remedy sought by defendants is a "drastic" one (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]) - judicial consistency, comity, and economy favor this Court's refusal to revisit a decided issue from which defendants took no cross-appeal. The merits of this argument further show its weakness. While the Appellate Division's cursory opinion (R. CA4-5) does not offer insight into the specific acts or omissions by Dr. Haralabatos that it considers to have constituted such departures, the trial court noted that plaintiffs' expert identified several departures from standards of care. Several of these are encompassed in the 31 discussion at Point I(A) above, and a complete list includes the following: • Failure to culture the pus from Keith's wound on April 15 (R. 12, 1073-1074) • Failure to take Keith's temperature on April 15 (R. 12, 1074) • Failure to prescribe prophylactic antibiotics on April 15 (R. 12, 1074- 1075) • Failure to order further blood testing on April 19 (R. 12, 1076-1080) • Failure to take Keith's temperature on April 19 (R. 12, 1072, 1076) • Failure to order further x-rays on April 19 (R. 12, 1079) • Failure to order weekly, serial tests of Keith's C-RP and ESR levels on April 19, i.e., tests that would be repeated on April 26 (R. 12-13, 1077) • Failure to treat the infected pin site during the time span from the March 25 visit to the April 15 visit to the April 19 visit (R. 13, 1079) Additionally, plaintiffs' expert identified further departures that were not explicitly acknowledged in the lower court's order, for example: • Failure to properly rule out osteomyelitis despite questioning signs of infection on April 15 and April 19 (R. 1079) • Deciding that "pussy drainage" was "exudate" and not "pus" in the absence of a wound culture when forming a treatment plan for the infant (R. 1073-1074) Based on these departures, questions of fact exist which preclude an award of summary judgment to defendants. A. DEFENDANTS CANNOT SHOW ON THIS RECORD THAT THE TRIAL COURT'S IDENTIFICATION OF ISSUES AS TO DEPARTURES FROM STANDARDS OF CARE WAS IMPROPER. Defendants' primary argument on this point is that in that exercising her "best judgment" in treating Keith Orsi, Dr. Haralabatos complied with 32 standards of care. However, "liability can ensue if [a physician's] judgment is not based upon intelligence and thus there is a failure to exercise any professional judgment" (Pigno v Bunim, 43 AD2d 718 [2d Dept 1973], affd 35 NY2d 841 [1974]), and the Record here provides a basis for a jury to find that Dr. Haralabatos did not exercise "any professional judgment" whatsoever. For example, Dr. Haralabatos failed to act in compliance with her own body of knowledge as set forth in her deposition. Dr. Haralabatos agreed that elevated ESR and C-RP are symptoms of an infection. (R. 235.) She agreed that serial testing of ESR and C-RP is warranted when following an infection. (R. 254.) She stated that serial testing of C-RP and ESR would be performed in the presence of an infection, to "watch [the levels] until they trend to normal." (R. 254.) As of April 19, symptoms of infection including erythema led Dr. Haralabatos to order antibiotics (R. 258). Thus, according to Dr. Haralabatos herself, further serial testing of C-RP and ESR were required. Dr. Haralabatos had considered serial testing previously (R. 237-238), but she failed to order serial testing at any time in April 2004. (R. 253-254.) This constituted a failure to use her own "best judgment," and provides a basis to find that her judgment fell short of accepted standards of care. (Nestorowich v Ricotta, 97 NY2d 393 [2002]; Pike v Honsinger, 155 NY 201 [1898]). 33 Further evidence shows that Dr. Haralabatos failed to exercise any professional judgment with respect to Keith Orsi's care (Pigno, supra). For example, Dr. Haralabatos noted the presence of "pussy drainage" on April 15 (R. 772), and observed that it may have been "exudate, rather than a true infection" (R. 250-251), but she was unable to determine which it was. Although she knew that the results of blood work do not conclusively rule out osteomyelitis, blood work was the only means of ruling out infection that Dr. Haralabatos ordered. (R. 251.) While she professed concern about osteomyelitis and "the pin sites in general" (R. 251), she did not culture the wound or prescribe any antibiotics on April 15. (R. 251-252.) She did not order any cultures on April 19. (R.769-771.) In failing to order cultures, Dr. Haralabatos deprived herself of the knowledge necessary to make an informed decision using her "best judgment" (R. 1077-1078), thus falling short of generally accepted standards (Nestorowich, supra). The Record provides a sound basis for both lower courts' identification of triable issues as to departures from standards of care. Contrary to defendants' submissions, this element of malpractice does not require upholding the Appellate Division's decision any more than the evidence on the question of causation does. 34 CONCLUSION The policy debate underlying the parties' submissions to this honorable Court has been resolved in New York since 1935, when the Legislature refused to continue the unjust outcomes that resulted from visiting the acts of a parent upon an infant plaintiff. Every lower court that has reviewed the facts of this case has identified triable issues as to departures from standards of care, and no expert evidence exists to show that Keith Orsi's missed appointments contributed to his injury. With these facts in mind, a determination that defendants are entitled to summary judgment flies in the face of New York law. For the reasons contained in the Appellants' Brief and herein, plaintiffs respectfully request that this Court reverse the order of the Appellate Division and reinstate the order of the trial court. Dated: Garden City, NY December 3,2012 35 Respectfully submitted, Dana E. Heitz, Esq. Silberstein, Awad & Miklos, P.C. Attorneys for Plaintiffs-Appellants 600 Old Country Rd., Suite 412 Garden City, NY 11530 (516) 832-7777 dheitz@ask4sam.net