Keith Orsi,, et al., Appellants,v.Susan Haralabatos,, et al., Respondents, et al., Defendants.BriefN.Y.February 13, 20130 To be Argued by: ERIC M. KRAUS, ESQ. Estimated Time for Argument: (30 Minutes) STATE OF NEW YORK Court of Appeals KEITH ORSI, an infant by his parents and natural guardians, LISA ORSI and MICHAEL ORSI, and LISA ORSI and MICHAEL ORSI, individually, Appellants, vs. SUSAN HARALABATOS, M.D., and 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. Suffolk County Index No.: 25565/2006. Appellate Division Docket Number: 2010-096399. BRIEF FOR RESPONDENTS SUSAN HARALABATOS, M.D., and STONY BROOK ORTHOPAEDIC ASSOCIATES PHILLIPS LYTLE LLP Attorneys for Respondents Susan Haralabatos, M.D., and Stony Brook Orthopaedic Associates 437 Madison Avenue, 34th Floor New York, New York 10022 Telephone: (212) 759-4888 Facsimile: (212) 308-9079 ERIC M. KRAUS, ESQ. CRAIG R. BUCKI, ESQ. Of Counsel Date of Completion: October 12, 2012. BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 - i - STATE OF NEW YORK : COURT OF APPEALS 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 S. HARALABATOS, M.D., and 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. ______________________________________________ DISCLOSURE STATEMENT Appellate Division, Second Department Docket No. 2010-096399 Suffolk County Index No. 25565/06 Upon information and belief, there are no parents or subsidiaries of Stony Brook Orthopaedic Associates, and Stony Brook Orthopaedic Associates is affiliated with the faculty practice plan of the State University of New York at Stony Brook. Counsel will file an updated list of any additional parents, subsidiaries, or affiliates of Stony Brook Orthopaedic Associates with the Court, should any such entities prove to exist. - ii - Dated: Buffalo, New York October 12, 2012 PHILLIPS LYTLE LLP By: /s/ CRAIG R. BUCKI Eric M. Kraus Craig R. Bucki Attorneys for Respondents 3400 HSBC Center Buffalo, New York 14203 Telephone No.: (716) 847-8400 437 Madison Avenue, 34th Floor New York, New York 10022 Telephone No.: (212) 759-4888 - iii - TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................................................................................V QUESTIONS PRESENTED, AND ANSWERS OF THE TRIAL COURT ............1 SUMMARY OF ARGUMENT .................................................................................4 STATEMENT OF FACTS ........................................................................................9 A. Keith Orsi’s Initial Treatment for His Fractured Left Elbow.....9 B. Keith Orsi’s Admission to Stony Brook Hospital for Treatment of Infection................................................................................11 C. Keith Orsi’s Follow-up Appointment with Dr. Haralabatos on April 15, 2004 ...........................................................................12 D. Keith Orsi’s Follow-up Appointment with Dr. Haralabatos on April 19, 2004 ...........................................................................13 E. Keith Orsi’s Three Missed Appointments with Dr. Haralabatos ...................................................................................................15 F. Discovery of Keith Orsi’s Osteomyelitis After His Three Missed Appointments with Dr. Haralabatos.............................16 G. This Action and the Motion of Dr. Haralabatos and Stony Brook Orthopaedic Associates for Summary Judgment...........18 ARGUMENT ...........................................................................................................24 POINT I. DR. HARALABATOS EXERCISED HER BEST JUDGMENT AND ENGAGED IN GOOD AND ACCEPTED MEDICAL PRACTICE IN TREATING KEITH ORSI ........................................26 A. The Orsis’ Expert Physician’s Opinions Depend upon Assumptions Contradicted by the Undisputed Facts of This Case. ..........................................................................................33 - iv - B. The Orsis’ Expert Physician Has Ignored Pertinent Facts in the Record to Formulate His Opinions. ..........................................34 C. The Orsis’ Expert Physician’s Affirmation Presents Conclusory and Speculative Opinions Unsubstantiated by Fact..................36 POINT II. THE PROXIMATE CAUSE ARGUMENT OF DR. HARALABATOS AND STONY BROOK ORTHOPAEDIC ASSOCIATES IS PROPERLY BEFORE THIS COURT..................38 A. Dr. Haralabatos and Stony Brook Orthopaedic Associates Presented Their Proximate Cause Argument to the Trial Court. ...................................................................................................39 B. The Appellate Division Properly Exercised Discretion to Review the Proximate Cause Argument. ..................................44 POINT III. DR. HARALABATOS’ CONDUCT DID NOT CONSTITUTE THE PROXIMATE CAUSE OF KEITH ORSI’S OSTEOMYELITIS .............................................................................................................46 A. Dr. Haralabatos’ Conduct on April 15 and 19, 2004, Did Not Constitute the Proximate Cause of Keith Orsi’s Alleged Injury, Because the Orsis Failed to Follow Up with Dr. Haralabatos for Over Two Weeks Thereafter, Contrary to Her Express Instructions................................................................................49 B. The Gap in Keith Orsi’s Treatment Between April 19 and May 5, 2004, Disqualifies Dr. Haralabatos’ Conduct on April 15 and April 19 from Constituting the Proximate Cause of His Alleged Injury. ........................................................................................57 POINT IV. GENERAL OBLIGATIONS LAW § 3-111 DOES NOT BAR THE PROXIMATE CAUSE ARGUMENT OF DR. HARALABATOS AND STONY BROOK ORTHOPAEDIC ASSOCIATES.....................................................................................65 CONCLUSION........................................................................................................75 - v - TABLE OF AUTHORITIES Page CASES Adams v. Anderson, 84 A.D.3d 1522 (3d Dep’t 2011).............................. 50, 52, 53 Akins v. County of Sonoma, 67 Cal. 2d 185, 430 P.2d 57 (1967) ..........................70 Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986) ........................................... 28, 37 Arkin v. Resnick, 68 A.D.3d 692 (2d Dep’t 2009)........................................... 34, 37 Banks by Banks v. United States, 969 F. Supp. 884 (S.D.N.Y. 1997)....................72 Beece v. Guardian Life Ins. Co. of Am., 110 A.D.2d 865 (2d Dep’t 1985) ...........73 Bingham v. N.Y. City Transit Auth., 99 N.Y.2d 355 (2003) ..................................44 Boyd v. Trent, 297 A.D.2d 301 (2d Dep’t 2002).....................................................72 Brown v. City of New York, 60 N.Y.2d 893 (1983) ...............................................45 Campbell v. Cent. N.Y. Reg’l Transp. Auth., 7 N.Y.3d 819 (2006).......................49 Cardona v. County of Albany, 188 Misc. 2d 440 (Sup. Ct. Albany County 2001) ..............................................................................................................73 Caroline v. Reicher, 269 Md. 125, 304 A.2d 831 (Md. 1973) ................................70 Caulkins v. Vicinzano, 71 A.D.3d 1224 (3d Dep’t 2010) .......................................37 Cekic v. Zapata, 69 A.D.3d 464 (1st Dep’t 2010) ...................................................59 Cervino v. Gladysz-Steliga, 36 A.D.3d 744 (2d Dep’t 2007) .................................59 Connell v. Hayden, 83 A.D.2d 30 (2d Dep’t 1981).................................................73 Corveddu v. Blumner, 10 A.D.2d 712 (2d Dep’t 1960) ..........................................73 Cox v. Cheaib, 231 A.D.2d 841 (4th Dep’t 1996)...................................................72 Datiz by Datiz v. Shoob, 71 N.Y.2d 867 (1988) .............................................. 61, 64 - vi - Davis v. Royal-Globe Ins. Cos., 223 So. 2d 912 (La. App. 4th Cir. 1969), rev’d on other grounds, 257 La. 523, 242 So. 2d 839 (1970) .......................70 DeMarco v. City of Albany, 17 A.D.2d 250 (3d Dep’t 1962).................................72 Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308 (1980) ........................................68 Dolan v. Halpern, 73 A.D.3d 1117 (2d Dep’t 2010) ...............................................28 Edmonds v. Quellman, 277 A.D.2d 579 (3d Dep’t 2002).......................................40 Farrell v. Lowy, 192 A.D.2d 691 (2d Dep’t 1993)..................................................49 Feinberg v. Feit, 23 A.D.3d 517 (2d Dep’t 2005) ............................................ 61, 64 Fish King Enters. v. Countrywide Ins. Co., 88 A.D.3d 639 (2d Dep’t 2011) .........45 Fox v. Watermill Enters., Inc., 19 A.D.3d 364 (2d Dep’t 2005) .............................42 Gibbons v. Hantman, 58 A.D.2d 108 (2d Dep’t 1977), aff’d, 43 N.Y.2d 941 (1978)...................................................................................................... 52, 53 Grant v. District of Columbia, 597 A.2d 366 (D.C. 1991) ......................................69 Gross v. Friedman, 73 N.Y.2d 721 (1988) ..............................................................27 Hirsh v. State, 8 N.Y.2d 125 (1960) ........................................................................73 Holodook v. Spencer, 36 N.Y.2d 35 (1974) ............................................................72 Horth v. Mansur, 243 A.D.2d 1041 (3d Dep’t 1997) ..............................................34 Jaffe v. N.Y. Hosp., 249 A.D.2d 194 (1st Dep’t 1998) ...........................................63 Johnson v. Yeshiva Univ., 42 N.Y.2d 818 (1977)...................................................28 Kelly v. Metro. Ins. & Annuity Co., 82 A.D.3d 16 (1st Dep’t 2011)......................72 Koehler v. Schwartz, 48 N.Y.2d 807 (1979) ...........................................................47 La Buda v. Brookhaven Mem’l Hosp. Med. Ctr., 62 N.Y.2d 1014 (1984).............24 LaTorre v. Genesee Mgmt., Inc., 90 N.Y.2d 576 (1997) ........................................72 Lau v. Wan, 93 A.D.3d 763 (2d Dep’t 2012) ..........................................................63 - vii - M.F. by Flowers v. Delaney, 37 A.D.3d 1103 (4th Dep’t 2007).............................72 Matter of Diamond Asphalt Corp. v. Sander, 92 N.Y.2d 244 (1998) .....................40 Matter of Schulz v. State, 81 N.Y.2d 336 (1993) ....................................................39 Matter of Woodin v. Lane, 119 A.D.2d 969 (3d Dep’t 1986).................................44 McMillan v. State, 72 N.Y.2d 871 (1988) ........................................................ 46, 66 Merrill by Merill v. Albany Medical Center Hospital, 71 N.Y.2d 990 (1988)...................................................................................................... 46, 66 Micciola v. Sacchi, 36 A.D.3d 869 (2d Dep’t 2007) ...............................................33 Milashouskas v. Mercy Hosp., 64 A.D.2d 978 (2d Dep’t 1978).............................74 Miller v. Sullivan, 214 A.D.2d 822 (3d Dep’t 1995) ................................. 51, 52, 53 Murray v. Hirsch, 58 A.D.3d 701 (2d Dep’t 2009) .................................................37 Nestorowich v. Ricotta, 97 N.Y.2d 393 (2002) ................................................ 25, 28 O’Shea v. Buffalo Med. Group, P.C., 64 A.D.3d 1140 (4th Dep’t 2009)...............48 Oestreich v. Present, 50 A.D.3d 522 (1st Dep’t 2008) ............................................33 Pappalardo v. N.Y. Health & Racquet Club, 279 A.D.2d 134 (1st Dep’t 2000) ....41 Paradies v. Benedictine Hospital, 77 A.D.2d 757 (3d Dep’t 1980) ........................59 Passero v. Puleo, 17 A.D.3d 953 (3d Dep’t 2005) ..................................................33 Paul v. Cooper, 45 A.D.3d 1485 (4th Dep’t 2007)..................................................45 Pedersen v. Balzan, 117 A.D.2d 933 (3d Dep’t 1986) ............................................73 People ex rel. Sweet v. Lyman, 157 N.Y. 368 (1898) .............................................27 People ex rel. Witherbee v. Bd. of Sup’rs of County of Essex, 70 N.Y. 228 (1877).............................................................................................................27 Picerno v. N.Y. City Transit Auth., 4 A.D.3d 349 (2d Dep’t 2004) .......................63 Pichardo v. Herrera-Acevedo, 77 A.D.3d 641 (2d Dep’t 2010)..............................48 - viii - Pike v. Honsinger, 155 N.Y. 201 (1898) .................................................................28 Pommells v. Perez , 4 N.Y.3d 566 (2008) ...............................................................58 Ravo v. Rogatnick, 70 N.Y.2d 305 (1987) ....................................................... 61, 64 Rebozo v. Wilen, 41 A.D.3d 457 (2d Dep’t 2007)..................................................37 Rich v. Diokno, 179 A.D.2d 987 (3d Dep’t 1992) ..................................................42 Rider v. Speaker, 180 Misc. 2d 999 (Sup. Ct. Sullivan County 1999)....................73 Rivera v. Kleinman, 67 A.D.3d 482 (1st Dep’t 2009), aff'd, 16 N.Y.3d 757 (2011)................................................................................................ 53, 68, 69 Romano v. Stanley, 90 N.Y.2d 444 (1997) .............................................................63 Rossi v. Arnot Ogden Med. Ctr., 268 A.D.2d 916 (3d Dep’t 2000) .......................33 Santiago by Santiago v. VIG Corp., 201 A.D.2d 337 (1st Dep’t 1994)........... 68, 69 Saugerties Bank v. Delaware & Hudson Co., 236 N.Y. 425 (1923) .......................47 Sheehan v. City of New York, 40 N.Y.2d 496 (1976) ............................................47 Sheikh v. Sinha, 272 A.D.2d 465 (2d Dep’t 2000)..................................... 51, 52, 53 Sokolow, Dunaud, Mercadier & Carreras LLP v. Lacher, 299 A.D.2d 64 (1st Dep’t 2002).............................................................................................41 Thompson v. County of Erie, 61 N.Y.2d 648 (1983) ..............................................24 Thompson v. Town of Brookhaven, 34 A.D.3d 448 (2d Dep’t 2006) ............. 68, 69 Topel v. Long Island Jewish Med. Ctr., 55 N.Y.2d 682 (1981) ..............................28 Van v. Clayburn, 21 A.D.2d 144 (1st Dep’t 1964)..................................................73 Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 405 (1st Dep’t 2009)......................................................................................45 Vaughan v. St. Francis Hosp., 29 A.D.3d 1133 (3d Dep’t 2006).................... 65, 67 Ventricelli v. Kinney Sys. Rent A Car, Inc., 45 N.Y.2d 950 (1978).......................49 - ix - Wicksman v. Nassau County Health Care Corp., 27 A.D.3d 644 (2d Dep’t 2006)48 Williams v. State, 18 N.Y.3d 981 (2012) ................................................................58 Wilson v. Westmoreland Farm, Inc., 989 F. Supp. 451 (E.D.N.Y. 1998) ..............71 Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851 (1985).....................................28 Wright v. Meyers & Spencer, LLP, 46 A.D.3d 805 (2d Dep’t 2007) .....................27 Zuck v. Sierp, 169 A.D.2d 717 (2d Dep’t 1991) .....................................................73 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980)................................. 24, 25 STATUTES General Obligations Law § 3-111.................................................................... passim OTHER AUTHORITIES Connors, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B (2010).............................................................................................................73 Restatement (Second) of Torts § 433 ......................................................................58 Restatement (Second) of Torts § 434 ......................................................................47 QUESTIONS PRESENTED, AND ANSWERS OF THE TRIAL COURT 1. Q. On a summary judgment motion in a medical malpractice action, is the plaintiff’s expert’s affirmation sufficient to rebut the defendant physician’s prima facie showing that he engaged in good and accepted medical practice, even though the plaintiff’s expert’s affirmation: (i) offers opinions that depend upon assumptions that contradict the undisputed facts in the record, (ii) ignores other pertinent facts in the record, (iii) makes conclusions that are speculative and unsubstantiated by supporting facts, and (iv) fails to explain the alleged causes of the plaintiff’s injuries? A. The Trial Court and the Appellate Division erroneously answered, “Yes.” This Court should answer, “No.” 2. Q. Did Defendants-Respondents Susan Haralabatos and Stony Brook Orthopaedic Associates preserve their argument that their conduct did not constitute the proximate cause of Plaintiff Keith Orsi’s alleged injuries, by: (i) raising this argument in their answer to the complaint, (ii) by making this argument to the Trial Court in support of their motion for summary judgment, and (iii) by offering expert opinions that provided a factual basis for this argument? A. Neither the Trial Court nor the Appellate Division answered this question. This Court should answer, “Yes.” - 2 - 3. Q. Even if Defendants-Respondents Susan Haralabatos and Stony Brook Orthopaedic Associates had not preserved before the Trial Court their argument that their conduct did not constitute the proximate cause of Plaintiff Keith Orsi’s alleged injuries, did the Appellate Division exercise appropriate discretion to consider this argument? A. The Appellate Division did not answer this question. This Court should answer, “Yes.” 4. Q. Does the conduct of a physician providing post-operative treatment for a patient’s fracture constitute the proximate cause of the patient’s development of a bone infection at the site of the healing fracture, even though the patient failed to appear for several consecutive post-operative follow-up appointments with the physician during the period of time in which the infection arose, and thereby deprived the physician of the opportunity to examine the patient and potentially treat him for an infection throughout this critical period? A. The Trial Court erroneously answered that a factual issue existed as to whether this could be true, but the Appellate Division correctly answered, “No.” This Court also should answer, “No.” - 3 - 5. Q. Does New York’s rule prohibiting the imputation of a parent’s negligence to a child excuse an infant plaintiff’s inability to demonstrate a triable issue of fact in a medical malpractice action as to whether the defendant’s conduct proximately caused his or her alleged injuries, on account of his or her parent’s actions or omissions that broke any causal nexus that may have linked the defendant’s conduct and those injuries? A. Neither the Trial Court nor the Appellate Division answered this question. This Court should answer, “No.” [The remainder of this page is intentionally left blank.] - 4 - SUMMARY OF ARGUMENT On July 20, 2010, the Hon. Patrick A. Sweeney, J.S.C. (the “Trial Court”), issued a Decision and Order (the “Order”) denying the motion of Defendants Susan S. Haralabatos, M.D., and Stony Brook Orthopaedic Associates for summary judgment on the cause of action for medical malpractice in the Complaint. (R. 6-16). On November 22, 2011, the Appellate Division, Second Department, reversed and awarded summary judgment to Dr. Haralabatos and Stony Brook Orthopaedic Associates, because Plaintiffs Keith, Michael, and Lisa Orsi had “failed to raise a triable issue of fact as to whether the alleged departures [of Dr. Haralabatos from good and accepted medical practice] proximately caused” the injuries that Keith Orsi had sustained. (R. CA5). The ruling of the Appellate Division was correct. Dr. Haralabatos and Stony Brook Orthopaedic Associates submit this Brief in opposition to the Orsis’ appeal therefrom, and in support of their summary judgment motion. On March 13, 2004, four-year old Keith Orsi suffered a severe displaced fracture to his left elbow when he fell off a trampoline. (R. 29, 884, 887- 88). Dr. Haralabatos performed surgery the next day at Stony Brook University Medical Center (“Stony Brook Hospital”) to repair the break. (R. 30, 876-77). This surgery consisted of a treatment known as “open reduction and internal - 5 - fixation,” by which Dr. Haralabatos set Keith Orsi’s broken left elbow and implanted Kirschner wires and pins to hold the bone in place. (R. 30, 874). Because the Kirschner wires and the pins were percutaneous – viz., they extended two centimeters out of Keith Orsi’s skin, near his left elbow – their implantation risked the development of an infection around the site of the pins or in Keith’s fractured bone. (R. 25, 39, 123). To alleviate this risk, Dr. Haralabatos ordered administration of intravenous Clindamycin, an antibiotic, to Keith Orsi immediately prior to and immediately after his surgery on March 14, 2004. (R. 31, 177, 866, 868, 875). The following day, Keith Orsi was released from Stony Brook Hospital, on instructions to follow up with Dr. Haralabatos within ten days thereafter, and to return to the emergency room if he were to experience pain, fever, or nausea. (R. 32, 837, 882-83). On March 20, 2004, Keith Orsi was re-admitted to Stony Brook Hospital for treatment of a skin infection that had developed around the pins extending from his left elbow. (R. 32, 891, 897). Pursuant to the recommendation of Dr. Sharon Nachman, an infectious disease specialist, Dr. Haralabatos ordered administration of intravenous Nafcillin, another antibiotic, to Keith Orsi. (R. 32, 475-76, 479, 898-99). Upon his discharge from Stony Brook Hospital on March 22, 2004, Dr. Haralabatos prescribed Augmentin, an oral antibiotic, to treat Keith - 6 - Orsi’s pre-existing skin infection, and to prevent any new infections from developing. (R. 33, 893). This antibiotic therapy proved successful. Blood tests performed on April 16, 2004, registered normal readings for Keith Orsi with respect to five objective indicators of infection: white blood cell count, erythrocyte sedimentation rate (“ESR”), C-reactive Protein (“CRP”) level, % neutrophils, and hemoglobin level. (R. 35, 826). Upon re-examining Keith Orsi on April 19, 2004, Dr. Haralabatos observed no swelling, drainage around the site of the pins, or any other signs of an infectious process. (R. 35, 769). In an abundance of caution, Dr. Haralabatos prescribed another prophylactic antibiotic, topical Cefzil, to Keith Orsi to treat any residual skin infection. She also instructed Keith’s mother, Lisa Orsi, to have Keith return to her office for follow-up appointments twice weekly until further notice, with the first of those scheduled for April 22, 2004. (R. 35, 260-61, 394, 810). Mrs. Orsi failed to comply with this instruction, however. She and Keith failed to appear for the April 22 appointment. (R. 36, 855). Mrs. Orsi rescheduled the visit for April 29, 2004, but again, they failed to appear. (Id.). Mrs. Orsi then arranged another appointment with Dr. Haralabatos for May 3, 2004, but later cancelled it. (Id.). Thus, Mrs. Orsi and her son missed three - 7 - scheduled follow-up appointments, and deprived Dr. Haralabatos the opportunity to monitor Keith Orsi’s condition from April 22 through May 3, 2004. When Mrs. Orsi and her son finally returned to Dr. Haralabatos’ office on May 4, 2004, Dr. Haralabatos observed swelling and pus-like drainage – telltale signs of infection – around the site of the pins near Keith Orsi’s left elbow. (R. 36, 801, 830, 916) A biopsy taken on May 5, 2004, at Stony Brook Hospital revealed that Keith Orsi had developed osteomyelitis, a bone infection. (R. 10). The Orsis seek to hold Dr. Haralabatos liable for this outcome, even though it developed during the period of over two weeks when Dr. Haralabatos was precluded from examining Keith Orsi because he and his mother skipped three follow-up appointments during a critical time when Dr. Haralabatos had instructed them to visit twice weekly. This position must fail as a matter of law, for two reasons. First, Dr. Haralabatos exercised reasonable care throughout her treatment of Keith Orsi. The record before the Court includes the expert affirmations of Donna P. Phillips, M.D., dated August 31, 2009; and Lorry Rubin, M.D., dated September 1, 2009. Dr. Phillips and Dr. Rubin provided ample reasons why Dr. Haralabatos’ treatment of Keith Orsi constituted good and accepted medical practice. (R. 121-140). In response, Respondents Keith Orsi, Lisa Orsi, and Michael Orsi provided an unnamed physician’s affirmation entirely - 8 - insufficient to rebut the evidence of Dr. Haralabatos’ appropriate care. (R. 1065- 85). In stark contrast to Dr. Phillips’ and Dr. Rubin’s reasoned opinions, the physician’s affirmation is rife with conclusory statements and unsubstantiated speculation that fail to explain how Dr. Haralabatos’ treatment of Keith Orsi deviated from any appropriate standard of care. Second, no actions of Dr. Haralabatos constituted the proximate cause of Keith Orsi’s osteomyelitis. Contrary to the Orsis’ assertion, Dr. Haralabatos and Stony Brook Orthopaedic Associates preserved this argument by raising it in their answer and in their papers supporting their summary judgment motion. Even so, the Appellate Division exercised appropriate discretion to credit the argument, and to award Dr. Haralabatos and Stony Brook Orthopaedic Associates on that basis. Dr. Phillips and Dr. Rubin expressly opined that Keith had not developed osteomyelitis as of April 19, 2004. The Orsis’ expert physician did not rebut this opinion, and even admitted that Keith’s osteomyelitis did not arise until after his blood was tested in mid-April 2004. (R. 1081). On April 19, 2004, Dr. Haralabatos examined Keith Orsi; noted no swelling or drainage; prescribed him prophylactic antibiotics; and instructed Keith Orsi’s mother to arrange for twice- weekly follow-up appointments, the first of which would take place on April 22. (R. 35, 260-61, 394, 769, 810). Keith Orsi and his mother missed not only the April 22 appointment, but also follow-up appointments scheduled for April 29 and - 9 - May 3, 2004. (R. 36, 855). Because Keith Orsi developed osteomyelitis during this more than two-week treatment gap, yielded by the Orsis’ decision to miss three follow-up appointments against Dr. Haralabatos’ express instruction, Dr. Haralabatos’ conduct on April 15 and April 19, 2004, does not constitute the proximate cause of Keith Orsi’s adverse outcome. Although General Obligations Law (“GOL”) § 3-111 does prohibit the imputation of negligence on the part of a parent to his or her child, it does not excuse the absence of proximate causation between Dr. Haralabatos’ treatment and Keith Orsi’s osteomyelitis. This Court should affirm the Appellate Division’s award of summary judgment to Dr. Haralabatos and Stony Brook Orthopaedic Associates and the dismissal of the Complaint in its entirety against them. STATEMENT OF FACTS A. Keith Orsi’s Initial Treatment for His Fractured Left Elbow On March 13, 2004, Keith Orsi broke his left elbow when he fell off a trampoline. (R. 29, 884, 887-88). Keith’s parents, Michael and Lisa Orsi, took him to Brookhaven Hospital, from which Keith was transferred to Stony Brook Hospital for examination by orthopedic specialists. (R. 30, 888). Upon Keith Orsi’s arrival at Stony Brook Hospital, an orthopedic resident examined Keith Orsi and diagnosed the fracture. (R. 30, 864-65, 872). Later that day, Dr. Susan - 10 - Haralabatos evaluated Keith Orsi, and decided to repair the break via a surgical procedure known as open reduction and internal fixation. (R. 30, 874, 876-77). On March 14, 2004, Dr. Haralabatos performed the surgery, without any complications. (R. 31, 877). The surgery entailed setting Keith Orsi’s broken bone, and implanting two sterile Kirschner wires and several pins into his left arm to hold the bone in place. (R. 30-31, 180-84, 876-77). The wires extended two centimeters outside the skin near Keith Orsi’s left elbow, so that their eventual removal would not necessitate a second surgery. (R. 31, 124). After the completion of the open reduction and internal fixation, Dr. Haralabatos closed the incision that she had made, covered the Kirschner wires with a sterile dressing, and placed Keith Orsi’s left arm in a cast. (R. 31, 184-85, 877). Because the Kirschner wires and pins were foreign objects breaking the skin on Keith Orsi’s left arm, they presented a risk of infection. Therefore, Dr. Haralabatos took action to minimize this risk before, during, and after Keith Orsi’s surgery. Dr. Haralabatos ordered intravenous administration of 450 milligrams of Clindamycin, an antibiotic, to Keith Orsi prior to his surgery; and another 150 milligrams of Clindamycin subsequent to Keith’s surgery. (R. 31, 177, 866, 868, 875). On March 15, 2004, Keith Orsi was released from Stony Brook Hospital. (R. 32, 837, 882-83). Dr. Haralabatos arranged with Michael and Lisa - 11 - Orsi for Keith Orsi to follow up with Dr. Haralabatos within ten days thereafter. (Id.). Dr. Haralabatos also advised Mr. and Mrs. Orsi to return with their son to the emergency room at Stony Brook Hospital if he were to experience any pain, fever, or nausea. (Id.). B. Keith Orsi’s Admission to Stony Brook Hospital for Treatment of Infection On March 19, 2004, five days after his surgery, Keith Orsi developed a sore throat and a fever. (R. 32, 945). In response to this development, Keith Orsi and his mother visited Dr. Sarala Radhakrishnan, Keith Orsi’s pediatrician, who prescribed Keith an antibiotic. (Id.). On March 20, 2004, Keith Orsi continued to run a high fever. For this reason, Lisa Orsi took her son to Stony Brook Hospital, where he was admitted. (R. 32, 891, 901) Upon admission, Keith Orsi’s temperature measured 102.2 degrees Fahrenheit. (R. 32, 891). Blood testing demonstrated that Keith Orsi had elevated levels of white blood cell count, ESR, and CRP level, all of which were non-specific indicators of infection. (R. 236-37, 486). Later that day, Dr. Haralabatos examined Keith Orsi, and observed erythema (i.e., redness) around the site of the pins that protruded from Keith’s left arm, as well as drainage of thick, white, pus-like fluid therefrom. (R. 32, 891, 894). Based upon these lab data, Dr. Haralabatos’ observations, and Keith Orsi’s high fever, Dr. Haralabatos determined that Keith had developed a - 12 - superficial infection around the pins, even though x-rays of Keith’s left arm had demonstrated no osteomyelitis – viz., a bone infection – or loss of bone density. (R. 32, 223, 897). Upon consulting with Dr. Sharon Nachman, a pediatric infectious disease specialist, Dr. Haralabatos ordered that Keith Orsi receive intravenous Nafcillin, an antibiotic. (R. 32, 475-76, 479, 898-99). Over the next two days, Keith Orsi’s condition improved as a result of Dr. Haralabatos’ treatment. His fever and the erythema around the site of the pins had resolved, and the drainage of fluid from his left elbow had decreased. (R. 33, 834, 891). As such, Keith Orsi was discharged from Stony Brook Hospital on March 22, 2004. (R. 33, 893). Upon discharge, Dr. Haralabatos prescribed Keith Orsi Augmentin, an oral antibiotic, and advised Michael and Lisa Orsi to return Keith to her office for his first post-operative appointment on March 25, 2004. (R. 32, 835, 893). During that visit, Dr. Haralabatos prescribed a prophylactic antibiotic to treat any skin infection. (R. 33, 777). Dr. Haralabatos also arranged for another follow-up office appointment for Keith Orsi in April 2004. (R. 34, 775). C. Keith Orsi’s Follow-up Appointment with Dr. Haralabatos on April 15, 2004 Keith Orsi next visited Dr. Haralabatos on April 15, 2004. (R. 34, 772). That day, Dr. Haralabatos removed the Kirschner wires that had held the bone in Keith Orsi’s left arm in place. (R. 34, 251, 772). Upon examining Keith - 13 - Orsi, Dr. Haralabatos once again noted erythema and pus-like drainage from the site of the pins in his left elbow. (R. 34, 772). Dr. Haralabatos believed that these circumstances had arisen from excessive motion of Keith Orsi’s left arm in the cast and around the pins. (R. 34, 260). Notwithstanding this assessment, Dr. Haralabatos sought to rule out osteomyelitis – viz., a bone infection. She ordered an x-ray of Keith Orsi’s left arm, and blood work to test for white blood cell count, ESR, CRP level, % neutrophils, and hemoglobin level – all of which can demonstrate infection. (R. 34, 126, 252-53, 823). All of these diagnostic indicators were negative. Taken on April 15, 2004, the x-ray revealed no evidence of osteomyelitis, and the blood work registered normal readings for all five potential indicators of infection. (R. 35-36, 127, 135, 823, 826). This is consistent with the admission of the Orsis’ own medical expert that Keith Orsi had not developed osteomyelitis as of April 15, 2004. (R. 1081, 1098). D. Keith Orsi’s Follow-up Appointment with Dr. Haralabatos on April 19, 2004 Keith Orsi visited Dr. Haralabatos again at her office on April 19, 2004. (R. 35, 769). Dr. Haralabatos noted erythema on Keith Orsi’s left arm, but none of the swelling or drainage that she had observed on prior visits. (Id.). By the Orsis’ admission, moreover, Keith Orsi’s ESR and CRP readings available to - 14 - Dr. Haralabatos on April 19 were normal, and his white blood cell count was only “slightly elevated.” Appellants’ Brief to the Court of Appeals, dated July 12, 2012, at p. 11 (“Apps. Br. p. ___”). Neither the condition of Keith’s left arm, nor the x- ray, nor the blood test results, therefore, demonstrated any evidence of osteomyelitis or any other infectious process as of April 19 – even though the Orsis’ attorneys claim, without supporting record evidence, that Keith’s infection had somehow “seeded” before the April 19 appointment. Apps. Br. p. 23. Dr. Haralabatos nonetheless exercised caution. She prescribed Cefzil, a topical antibiotic, to Keith Orsi to resolve any residual skin infection. (R. 35, 260-61, 810). Dr. Haralabatos also sought to continue to monitor Keith Orsi’s condition closely. She directed Lisa Orsi to bring her son to Dr. Haralabatos’ office for another follow-up appointment later in the week on Thursday or Friday – viz., on April 22 or 23, 2004. (R. 35, 394). Zhanna Sikorski, Dr. Haralabatos’ physician assistant, specifically communicated this instruction to Keith Orsi’s parents on April 19, 2004: I remember that I brought the prescription for the antibiotics to the room, and it was [Lisa Orsi] and [Michael Orsi] and Keith. I gave a prescription for the antibiotics, and I strongly encouraged the parents to give the antibiotics, to give Keith antibiotics, to follow the doctor’s recommendations and come the time Dr. Haralabatos wanted to see them. - 15 - (R. 394) (emphasis added). Dr. Haralabatos likewise “express[ed] the urgency” to Lisa Orsi that she bring Keith to future follow-up appointments, because Dr. Haralabatos “want[ed] to see [Keith Orsi] twice per week” after April 19, 2004. (R. 268). Nothing in the record disputes this. E. Keith Orsi’s Three Missed Appointments with Dr. Haralabatos Had the Orsis continued to follow up with Dr. Haralabatos after April 19, 2004, Dr. Haralabatos could have keenly observed Keith Orsi’s condition and made prompt changes to his treatment, if necessary. Instead, the Orsis ignored two follow-up appointments with Dr. Haralabatos, and cancelled a third. Lisa Orsi and Keith failed to show for appointments scheduled for April 22 and April 29, 2004, with Dr. Haralabatos. (R. 36, 264, 855). They cancelled another appointment that was set for May 3, 2004. (Id.). A printout (R. 855) of Dr. Haralabatos’ contacts with Keith Orsi from March through May 2004 reflects these circumstances: According to the patient appointment sheet . . ., an appointment had been made for [April] 22nd. “NOS” means no show. An appointment was then made for [April] 29th. Again was a no show. An appointment was made for May 3rd, which was canceled [sic]. (R. 264). Whereas a “cancelled” appointment meant that “someone [had] called [Dr. Haralabatos’] office affirmably and said ‘I can’t make it,’” a “no show” meant - 16 - that the patient had simply failed to honor the appointment, without any request in advance to reschedule. (R. 265). Lisa Orsi and her son finally visited Dr. Haralabatos’ office again on May 4, 2004, for the first time since April 19, 2004 – viz., 15 days prior. (R. 36, 272). From the Orsis’ missed appointment on April 22 through May 4, Dr. Haralabatos had been precluded from examining Keith Orsi, observing his condition, or modifying his treatment regimen accordingly. The Orsis assert that they missed appointments with Dr. Haralabatos on April 22, April 29, and May 3, 2004, “due to car problems.” Apps. Br. p. 11. Regardless of their reason, nothing in the record demonstrates that the Orsis called Dr. Haralabatos to cancel the April 22 and 29 appointments, or that alternative means of transportation (such as taxis or public buses) were unavailable to the Orsis to travel to Dr. Haralabatos’ office at any time between April 19 and May 4, 2004. F. Discovery of Keith Orsi’s Osteomyelitis After His Three Missed Appointments with Dr. Haralabatos As of May 4, 2004, Lisa Orsi did not suspect any problem with her son’s condition. (R. 36, 685). Upon examining Keith Orsi on May 4, 2004, however, Dr. Haralabatos noted swelling around and persistent purulent drainage from the site of the pins in his left arm. (R. 36, 801, 830, 916). These symptoms indicated that an infection had developed since Dr. Haralabatos’ most recent examination on April 19. As such, Dr. Haralabatos ordered another x-ray of Keith - 17 - Orsi’s left arm. (R. 36, 272). This x-ray also revealed a possible bone infection. (Id.). Given these circumstances, Dr. Haralabatos directed Lisa Orsi to take Keith Orsi to the emergency room at Stony Brook Hospital for admission and for an infectious disease workup. (R. 36, 913). On May 5, 2004, Dr. Haralabatos performed a biopsy of bone from Keith Orsi’s left humerus. (R. 37, 907). Cultures obtained from the biopsy demonstrated the presence of active osteomyelitis. (R. 10). Tests performed the same day registered elevated ESR and CRP levels in Keith Orsi’s blood, thereby confirming the infection. (R. 37, 922-23). Upon the recommendation of Dr. Lucy Pontrelli, an infectious disease specialist, Dr. Haralabatos immediately ordered administration of two antibiotics, Zosyn and Nafcillin, to Keith Orsi to treat his osteomyelitis. (R. 37, 831, 905-06, 924-27). On May 8, 2004, Dr. Richard Scriven inserted a catheter into Keith Orsi, so that he could receive long-term antibiotic therapy after his discharge from Stony Brook Hospital. (R. 37, 137, 934-35). Thanks to this treatment, Keith Orsi’s osteomyelitis had resolved by July 2004, when Keith Orsi last visited Dr. Haralabatos. (R. 38, 308, 754-55). During her deposition in 2007, Lisa Orsi testified that Keith Orsi’s osteomyelitis had not prevented him from participating in school activities or many other physical activities, such as swimming, running, or playing basketball. (R. 661). - 18 - G. This Action and the Motion of Dr. Haralabatos and Stony Brook Orthopaedic Associates for Summary Judgment The Orsis commenced this action on September 12, 2006. (R. 43). The Complaint presented three claims: a cause of action for medical malpractice, a cause of action for lack of informed consent, and a cause of action for loss of consortium on behalf of Michael and Lisa Orsi. (R. 45-57). After extensive discovery, Dr. Haralabatos and Stony Brook Orthopaedic Associates moved for summary judgment in their favor on September 2, 2009. (R. 19-21). In support of the motion, Dr. Haralabatos and Stony Brook Orthopaedic Associates provided the expert affirmations of Dr. Donna P. Phillips, a board-certified pediatric orthopedic surgeon, dated August 31, 2009 (R. 121-32); and Dr. Lorry Rubin, a board-certified specialist in pediatric infectious disease, dated September 1, 2009 (R. 133-40). They opined that the care and treatment rendered by Dr. Haralabatos to Keith Orsi “was at all times reasonable and did not depart from good and accepted standards of medical practice.” (R. 122-23, 134). The Orsis submit that neither Dr. Phillips nor Dr. Rubin “has an opinion on causation” or the “significance” of Keith Orsi’s missed appointments with Dr. Haralabatos on April 22, April 29, and May 3, 2004. Apps. Br. p. 22. This is not so. After noting those missed appointments (R. 127), Dr. Phillips opined: - 19 - Prior to the May 4th office visit, it was reasonable for Dr. Haralabatos to rely on the lab data, her own clinical judgment as well as the judgment of infectious disease consultants who assisted in the care and treatment of Keith Orsi, and to treat Keith’s infection as a superficial pin site infection rather than conclude that he had a more serious infection of the bone. . . . Prior May 4th, there was no basis to conclude to a reasonable degree of medical certainty that Keith had osteomyelitis. (R. 131) (emphasis added). Dr. Rubin concluded likewise. (R. 140). As such, Dr. Haralabatos and Stony Brook Orthopaedic Associates expressly argued on their summary judgment motion that “[the Orsis] cannot demonstrate that the care and treatment rendered by Dr. Haralabatos was the proximate cause of [Keith Orsi’s] infection.” (R. 1106.). In response to Dr. Phillips’ and Dr. Rubin’s affirmations, counsel for the Orsis submitted an affirmation made by an unnamed physician (“Physician Aff.”). Not surprisingly, that physician disagreed with Dr. Phillips and Dr. Rubin, and concluded that Dr. Haralabatos had departed from good and accepted medical practice: On April 15, 2004, by failing (i) to take certain x-rays of Keith Orsi’s left arm; (ii) to order a wound culture to be taken from the site of the pins near his left elbow; (iii) to take Keith Orsi’s temperature; and (iv) to prescribe prophylactic antibiotics; and - 20 - On April 19, 2004, by failing (i) to order additional blood work for Keith Orsi; (ii) to take additional x-rays of Keith Orsi’s left arm; and (iii) to take Keith Orsi’s temperature. (R. 1071, 1073-79). The physician further opined that these circumstances: were substantial factors in causing the degree and extent of [Keith Orsi’s] osteomyelitis . . . , with the resulting permanent injury and sequelae; [or] [a]lternatively, . . . 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. (R. 1080). In formulating these opinions, however, the Orsis’ expert physician relied upon incorrect assumptions and ignored pertinent facts. For example: The physician failed to explain how additional x-rays of Keith Orsi’s left arm on April 15, 2004, would have aided Dr. Haralabatos in detecting osteomyelitis that, by the physician’s own admission, developed after April 15. (R. 1081, 1098). The physician neglected to recognize that a wound culture would have tested positive for bacteria – whether Keith Orsi had osteomyelitis or not – because of the flora that normally occupy the surface of the skin. (R. 216, 251, 1099). - 21 - The physician asserted that additional blood testing on April 19, 2004, would have enabled Dr. Haralabatos to ascertain the efficacy of the antibiotic Cefzil in resolving any infection that Keith Orsi may have had. (R. 1078). This would have been impossible, however, because Dr. Haralabatos did not prescribe Cefzil to Keith Orsi until April 19. (R. 1101). The physician assumed that Dr. Haralabatos could have altered the course of Keith Orsi’s treatment and drug therapy if she had ordered additional blood testing on April 19, 2004. Dr. Haralabatos had no opportunity to do so, however, because Lisa Orsi and Michael Orsi missed three follow-up appointments with Dr. Haralabatos between April 19 and May 4, 2004. (R. 855, 1101-02). The physician’s opinions also were conclusory and speculative, and lacked substantiation in corresponding facts in the record. For example: The physician declined to explain how the failure to perform certain x-rays or take Keith Orsi’s temperature on April 15 or 19, 2004, would have compromised Dr. Haralabatos’ treatment of any infection or would have caused her to diagnose then-nonexistent osteomyelitis. (R. 1098-99, 1103). The physician speculated that a wound culture “would probably have” demonstrated the presence of pathogens and contaminants on Keith Orsi’s skin. (R. 1078) (emphasis added). The physician did not describe, however, - 22 - how a wound culture would have prevented the onset or decreased the severity of Keith Orsi’s osteomyelitis. (R. 1099). The physician also opined that Cefzil “could have” proven more effective for Keith Orsi had it been prescribed on April 15, 2004, rather than on April 19, 2004. (R. 1084). This was so, the physician speculated, because “no antibiotic had been administered for a number of days.” (R. 1080). To the contrary, the record demonstrates that Dr. Radhakrishnan, Keith Orsi’s pediatrician, had prescribed him a course of Cephalosporin antibiotic, starting on March 29, 2004. (R. 1073, 1100). The physician argued that Dr. Haralabatos should have taken x-rays of Keith Orsi’s left arm on April 19, 2004, because “the prior problem posed by [Keith’s] cast obscuring the view was no longer present.” (R. 1076-77). This explanation assumes that Keith Orsi’s appointment on April 19, 2004, presented Dr. Haralabatos’ first opportunity to take an x-ray in the absence of a cast on Keith Orsi’s left arm. That was not the case: Keith Orsi’s cast was removed on April 15, 2004, and Dr. Haralabatos ordered an x-ray of his left arm that same day. (R. 251, 371, 823, 1102-03). Most important, nowhere does the Orsis’ expert physician claim that Keith Orsi had developed osteomyelitis on or before April 19, 2004 – viz., Keith’s last appointments before his string of two no-shows and one cancellation – or that - 23 - Dr. Haralabatos somehow could have diagnosed or treated Keith’s nonexistent osteomyelitis at that time. The Orsis do not contest, therefore, the opinions of Dr. Phillips and Dr. Rubin that Dr. Haralabatos could not reasonably conclude that Keith Orsi had contracted osteomyelitis prior to his office visit on May 4, 2004. (R. 131, 140). On July 20, 2010, the Hon. Patrick A. Sweeney, J.S.C. (the “Trial Court”), granted Dr. Haralabatos’ and Stony Brook Orthopaedic Associates’ motions for summary judgment on the Orsis’ claim of lack of informed consent, but otherwise denied their motions for summary judgment on the Orsis’ claims of medical malpractice and loss of consortium. (R. 6, 15).1 In doing so, the Trial Court concluded that the expert physician’s affirmation submitted on the Orsis’ behalf “raised triable issues of fact . . . as to specific allegations of deviations from the standard of care.” (R. 15). This was so, even though that affirmation offered conclusory and speculative opinions and ignored or contradicted important facts in the record. Dr. Haralabatos and Stony Brook Orthopaedic Associates subsequently appealed to the Appellate Division, Second Department. (R. 1-2). Correctly holding that the Orsis had “failed to raise a triable issue of fact as to 1 Zhanna Sikorski, RPA-C; Sharon Nachman, M.D.; Divna Djokic, M.D.; Lucy Pontrelli, M.D.; and Christopher Carleo, M.D., also moved for summary judgment before the Trial Court. The Orsis did not oppose their summary judgment motions, which the Trial Court granted in its Order dated July 20, 2010. (R. 6, 15). - 24 - whether [Dr. Haralabatos’] alleged departures [from good and accepted medical practice] proximately caused [Keith Orsi’s] condition,” the Second Department reversed the Trial Court Order and awarded Dr. Haralabatos and Stony Brook Orthopaedic Associates summary judgment. (R. CA5). This Court should find likewise, and uphold the dismissal of the Complaint against Dr. Haralabatos and Stony Brook Orthopaedic Associates in its entirety. ARGUMENT The Appellate Division’s award of summary judgment in favor of Dr. Haralabatos and Stony Brook Orthopaedic Associates is subject to reversal by this Court only if the Appellate Division “abused its discretion” as a matter of law to dismiss the complaint. Thompson v. County of Erie, 61 N.Y.2d 648, 649 (1983). The Court has applied this standard of review to uphold summary judgment for the defendants in a medical malpractice action (La Buda v. Brookhaven Mem’l Hosp. Med. Ctr., 62 N.Y.2d 1014, 1016 (1984)), and should do so again here. In order to prevail on their summary judgment motion, Dr. Haralabatos and Stony Brook Orthopaedic Associates needed to satisfy their burden to submit “evidentiary proof in admissible form” to establish the absence of any triable issue of fact, and their entitlement to judgment as a matter of law. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). They did so. The - 25 - expert affirmations of Dr. Donna Phillips and Dr. Lorry Rubin demonstrated that Dr. Haralabatos exercised her “best judgment” to care for Keith Orsi, in accordance with good and accepted medical practice. Nestorowich v. Ricotta, 97 N.Y.2d 393, 399 (2002). Even if Dr. Haralabatos had somehow deviated from good and accepted medical practice, moreover, she also established that her conduct did not constitute the proximate cause of Keith Orsi’s osteomyelitis, because the Orsis – contrary to Dr. Haralabatos’ instruction – failed to follow up with her from April 19 through May 4, 2004. Dr. Haralabatos and Stony Brook Orthopaedic Associates preserved this argument for review before the Trial Court by pleading it in their answer, by asserting it upon their summary judgment motion, and by offering supporting evidence through the opinions of Dr. Phillips and Dr. Rubin. Once Dr. Haralabatos established her prima facie entitlement to summary judgment, the burden shifted to the Orsis to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which [they rest their] claim or [to] demonstrate acceptable excuse for [their] failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Zuckerman v. City of New York, 49 N.Y.2d at 562 (emphasis added). - 26 - The Appellate Division correctly determined that the physician’s affirmation submitted by the Orsis to the Trial Court failed to satisfy this burden. That physician based his opinions upon conclusory assertions, unsubstantiated speculation, and misstatements of fact; and failed to explain how additional x-rays, blood testing, cultures, or temperature readings could have prevented or alleviated Keith Orsi’s osteomyelitis. Although General Obligations Law § 3-111 prohibits the imputation of the negligence of a parent to his or her child, it does not exonerate the Orsis from presenting a triable issue of fact as to the cause of Keith Orsi’s alleged injury. They cannot do so, because the Orsis’ missed appointments broke any causal nexus between Dr. Haralabatos’ care on April 15 and 19, 2004, and Keith Orsi’s development of osteomyelitis. Because the Appellate Division did not abuse its discretion to reverse the Trial Court’s erroneous denial of Dr. Haralabatos’ and Stony Brook Orthopaedic Associates’ motions for summary judgment, this Court should uphold the dismissal of the complaint against them in its entirety. POINT I. DR. HARALABATOS EXERCISED HER BEST JUDGMENT AND ENGAGED IN GOOD AND ACCEPTED MEDICAL PRACTICE IN TREATING KEITH ORSI The Appellate Division correctly determined that the Orsis had “failed to raise a triable issue of fact as to whether [Dr. Haralabatos’] alleged departures - 27 - [from good and accepted medical practice] proximately caused [Keith Orsi’s] condition.” (R. CA5). The Appellate Division could have (and should have) awarded Dr. Haralabatos and Stony Brook Orthopaedic Associates summary judgment for another reason: because Dr. Haralabatos satisfied her duty to treat Keith Orsi in 2004, by exercising her best judgment to repair his broken left elbow and to prevent the development of a resulting infection. For this independent reason, Dr. Haralabatos and Stony Brook Orthopaedic Associates cannot bear liability to Keith Orsi in medical malpractice, or to Michael or Lisa Orsi on their claim for loss of consortium.2 In a medical malpractice action, the plaintiff must demonstrate that the defendant physician deviated or departed from good and accepted medical practice, and that such departure proximately caused the plaintiff’s injury. Gross v. Friedman, 73 N.Y.2d 721, 722-23 (1988). Therefore, on a motion for summary judgment, a defendant has the initial burden of establishing the 2 This Court may affirm the dismissal of the Complaint because Dr. Haralabatos’ treatment of Keith Orsi consisted of good and accepted medical practice, even though the Appellate Division awarded her summary judgment for a different reason – viz., the lack of any causal nexus between Dr. Haralabatos’ conduct and Keith Orsi’s alleged injuries. As Respondents on this appeal, Dr. Haralabatos and Stony Brook Orthopaedic Associates “have the right to urge here, any consideration which they might have offered” to the Appellate Division; “and if it appears sufficient to maintain the conclusion to which that court has arrived, it will prevail here to uphold its judgment.” People ex rel. Witherbee v. Bd. of Sup’rs of County of Essex, 70 N.Y. 228, 233 (1877). Accord, People ex rel. Sweet v. Lyman, 157 N.Y. 368, 387 (1898); Wright v. Meyers & Spencer, LLP, 46 A.D.3d 805, 805 (2d Dep’t 2007). Before the Trial Court and the Appellate Division, Dr. Haralabatos preserved and fully briefed her argument that no triable issue of fact exists as to her exercise of good and accepted medical practice. This reason alone justifies affirmance of summary judgment in her favor. - 28 - absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In opposition, a plaintiff then must submit material or evidentiary facts to rebut the defendant’s prima facie showing that he or she was not negligent in treating the plaintiff. Dolan v. Halpern, 73 A.D.3d 1117, 1118-19 (2d Dep’t 2010) (citing, inter alia, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985)) On her motion for summary judgment, Dr. Haralabatos met her burden to establish that she engaged in good and accepted medical practice in her treatment of Keith Orsi’s fractured left elbow. The Trial Court agreed. (R. 15). “[C]onformance with the prevailing standard of care and accepted medical practice” requires a physician to “employ [her] ‘best judgment in exercising . . . skill and applying [her] knowledge.’” Nestorowich v. Ricotta, 97 N.Y.2d at 398 (emphasis added) (quoting Pike v. Honsinger, 155 N.Y. 201, 209 (1898); and citing Topel v. Long Island Jewish Med. Ctr., 55 N.Y.2d 682 (1981); Johnson v. Yeshiva Univ., 42 N.Y.2d 818 (1977)). Pursuant to this “best judgment” standard, a doctor is not liable in negligence merely because a treatment, which the doctor as a matter of professional judgment elected to pursue, proves ineffective or a diagnosis proves inaccurate. Nestorowich v. Ricotta, 97 N.Y.2d at 398. - 29 - Dr. Haralabatos exercised her best judgment in treating Keith Orsi’s broken left elbow in 2004. On March 14, 2004, Dr. Haralabatos “opened the fracture, reduced it and stabilized the fracture with the use of pins that fixed the fracture in place.” (R. 124). Dr. Donna Phillips, a board-certified pediatric orthopedic surgeon, confirmed that “[t]his method of repair of the fracture was reasonable and appropriate.” (Id.). In her opinion, The surgery was performed in accordance with good and accepted pediatric orthopedic surgical standards. Indeed, the post-operative x-ray showed an excellent reduction of the fracture fragment and fixation, the result of the fine surgical technique of Dr. Haralabatos. (Id.). The Orsis’ expert physician does not dispute this. Like Dr. Phillips, that physician acknowledges that open reduction and internal fixation presents a risk of infection for the patient, due to the Kirschner wires’ “breaking or puncturing the skin.” (R. 1072). Six days after surgery, Keith Orsi was again admitted to Stony Brook Hospital, this time for a fever and sore throat. (R. 32, 891, 901, 945). Upon consulting with Dr. Sharon Nachman, a pediatric infectious disease specialist, Dr. Haralabatos determined that Keith Orsi had developed a superficial infection around the site of the pins extending from his left arm. (R. 32, 475-76, 479, 897- 99). Keith Orsi was administered intravenous Nafcillin, an antibiotic, during his stay in Stony Brook Hospital; and was prescribed oral Augmentin, another - 30 - antibiotic, upon his discharge. (R. 32-33, 475-76, 479, 893, 897-99). In the opinion of Dr. Phillips and Dr. Rubin, it was reasonable for Dr. Haralabatos to treat Keith Orsi for a superficial pin infection, rather than for osteomyelitis; and to rely upon the advice of Dr. Nachman in doing so. (R. 33, 125, 136). Once again, the Orsis’ expert physician does not dispute this. Rather, that physician contends that Dr. Haralabatos failed to engage in good and accepted medical practice on only two occasions – viz., when Keith Orsi visited her office on April 15 and April 19, 2004. (R. 1097). This is not so, and is not supported by the record. On April 15, 2004, Dr. Haralabatos noted “pussy drainage and granulation tissue around the pin sites” in Keith Orsi’s left arm, “along with mild erythema.” (R. 34, 772). Dr. Haralabatos concluded that this circumstance had resulted from “excessive motion within the cast and around the pins.” (R. 34, 260). This conclusion was reasonable, Dr. Phillips has opined, because “[g]ranulation tissue is a common occurrence with percutaneous pins,” and “does not in and of itself indicate an infection.” (R. 126). Nonetheless, Dr. Haralabatos prudently sought to evaluate whether Keith Orsi had developed an infection. She therefore ordered blood testing and an x-ray of Keith Orsi’s left arm. (R. 34, 126, 252-53, 823). The x-ray showed no evidence of osteomyelitis, and the blood testing registered normal readings for five - 31 - objective indicators of infection: white blood cell count, ESR, CRP level, % neutrophils, and hemoglobin level. (R. 34-35, 823, 826). Dr. Phillips and Dr. Rubin confirmed that the test results were “inconsistent” with a diagnosis of osteomyelitis. (R. 35, 127, 135). As such, “no further treatment for the infection was required.” (Id.). On April 19, 2004, Dr. Haralabatos noted erythema on Keith Orsi’s left arm, but no swelling. (R. 35, 769). She prescribed Cefzil, another antibiotic, to treat any residual skin infection. (R. 35, 260-61, 810). This action also was “reasonable and appropriate,” in the opinions of Dr. Phillips and Dr. Rubin. (R. 35, 127, 137). As Dr. Rubin explained, Dr. Haralabatos . . . appropriately assessed the healing of Keith’s left lateral condyle fracture using history, visual assessment, and radiological studies at the office visits on March 25, 2004, April 15, 2004, and April 19, 2004. . . . There was no basis to conclude that Keith was suffering from osteomyelitis during any of these evaluations as Keith’s x-rays revealed good healing that would be unlikely to occur in the presence of osteomyelitis, and his [white blood cell count], ESR, % Neutrophils, Hemoglobin and C-reactive protein levels were not elevated. Thus, it was wholly appropriate to diagnose Keith’s clinical signs and symptoms as a superficial skin infection, and it was within the standard of care to prescribe Augmentin and later Cefzil to treat these signs and symptoms. (R. 137). - 32 - The opinions of Dr. Phillips and Dr. Rubin establish, to a reasonable degree of medical certainty, that Dr. Haralabatos did not depart from good and accepted medical practice in her treatment of Keith Orsi in 2004. Dr. Phillips’ and Dr. Rubin’s affirmations justify Dr. Haralabatos’ prima facie entitlement to summary judgment. Contrary to the determinations of the Trial Court and the Appellate Division, the affirmation of the Orsis’ expert physician did not rebut this showing. That physician has opined that Dr. Haralabatos deviated from good and accepted medical practice: On April 15, 2004, by failing (i) to take certain x-rays of Keith Orsi’s left arm; (ii) to order a wound culture to be taken from the site of the pins near his left elbow; (iii) to take Keith Orsi’s temperature; and (iv) to prescribe prophylactic antibiotics; and On April 19, 2004, by failing (i) to order additional blood work for Keith Orsi; (ii) to take additional x-rays of Keith Orsi’s left arm; and (iii) to take Keith Orsi’s temperature. (R. 1071, 1073-79). These opinions – as well as the substance of the unidentified physician’s affirmation – are insufficient to defeat summary judgment in favor of Dr. Haralabatos, for at least three reasons. - 33 - A. The Orsis’ Expert Physician’s Opinions Depend upon Assumptions Contradicted by the Undisputed Facts of This Case. In a medical malpractice action, a plaintiff’s expert affidavit that relies upon misapprehensions of fact and misstatements unsupported by the record does not give rise to triable issues, and does not justify denial of summary judgment for the defendant physician. See, e.g., Oestreich v. Present, 50 A.D.3d 522 (1st Dep’t 2008) (determining that an expert affidavit contradicted by the record would not defeat summary judgment); Micciola v. Sacchi, 36 A.D.3d 869 (2d Dep’t 2007) (same); Passero v. Puleo, 17 A.D.3d 953 (3d Dep’t 2005) (same); Rossi v. Arnot Ogden Med. Ctr., 268 A.D.2d 916 (3d Dep’t 2000) (same). The Orsis’ expert physician’s affirmation is unreliable, because it makes factual misstatements belied by the record concerning Keith Orsi’s visit to Dr. Haralabatos’ office on April 19, 2004. For example: The physician opined that Cefzil “could have” proven more effective for Keith Orsi had it been prescribed on April 15, 2004, rather than on April 19, 2004, because “no antibiotic had been administered for a number of days.” (R. 1084) (emphasis added). The premise for this opinion is inaccurate: the record demonstrates that Dr. Radhakrishnan, Keith Orsi’s pediatrician, had prescribed him a Cephalosporin antibiotic on March 29, 2004. (R. 1073, 1100). Even so, the speculative “possibility” of a link between the timing of Keith Orsi’s antibiotic therapy and his osteomyelitis does not create a triable - 34 - issue of fact (Horth v. Mansur, 243 A.D.2d 1041, 1043 (3d Dep’t 1997)), because the Orsis’ expert does not dispute Dr. Haralabatos’ choice of Cefzil, or the dosage that she prescribed. The physician further contended that Dr. Haralabatos should have taken x- rays of Keith Orsi’s left arm on April 19, 2004, because “the prior problem posed by [Keith’s] cast obscuring the view was no longer present.” (R. 1076-77). This explanation assumes that Keith Orsi’s appointment on April 19, 2004, presented Dr. Haralabatos with her first opportunity to take an x- ray of Keith Orsi’s left arm after the removal of his cast. That was not true. To the contrary, Keith Orsi’s cast was removed on April 15, 2004, and Dr. Haralabatos ordered an x-ray of his left arm that same day. (R. 251, 371, 823, 1102-03). B. The Orsis’ Expert Physician Has Ignored Pertinent Facts in the Record to Formulate His Opinions. In a medical malpractice action, a plaintiff’s expert affirmation that fails to consider or explain record evidence upon which the defendant physician’s expert relies is insufficient to defeat summary judgment. In Arkin v. Resnick, 68 A.D.3d 692 (2d Dep’t 2009), for example, the Court awarded summary judgment to a physician whose actions the plaintiff had alleged to have caused her brain damage, because the plaintiff’s expert had overlooked evidence in the record of a previously undetected injury to the plaintiff’s brain. - 35 - The Orsis’ expert physician’s affirmation likewise neglects record facts that would undercut his opinions and assumptions. For instance: That physician argued that Dr. Haralabatos should have ordered additional x-rays of Keith Orsi’s left arm on April 15, 2004. (R. 1073). This opinion incorrectly assumes that those x-rays would have assisted Dr. Haralabatos in detecting Keith Orsi’s osteomyelitis. In fact, the Orsis’ own expert admits that Keith Orsi contracted osteomyelitis sometime after April 15, and fails to rebut Dr. Phillips’ and Dr. Rubin’s opinions that Keith Orsi had not developed osteomyelitis as of April 19. (R. 1081, 1098). There is no basis to conclude, therefore, that an x-ray on April 19, 2004, would have revealed any evidence at all of osteomyelitis. The physician tepidly opined that Dr. Haralabatos should have taken a culture of the wound at the site of the pins on Keith Orsi’s left arm on April 15, 2004. (R. 1073). A wound culture, he reasoned, “would probably have” revealed pathogens on Keith Orsi’s skin. (R. 1078) (emphasis added). This rationale fails to account, however, for the presence of bacteria that normally inhabit the skin’s surface. (R. 216, 251, 1099). Because those bacteria would have triggered a positive test even in the absence of any infection, a wound culture would have had no probative value for Dr. Haralabatos. - 36 - The physician asserted that additional blood testing on April 19, 2004, would have enabled Dr. Haralabatos to determine the efficacy of the antibiotic Cefzil in resolving any infection that may have afflicted Keith Orsi. (R. 1078). Dr. Haralabatos did not prescribe Cefzil to Keith Orsi until April 19, however: no blood test could have measured its effectiveness on that date. (R. 1101). The physician also assumed that the results of additional blood testing on April 19, 2004, could have spurred Dr. Haralabatos to alter Keith Orsi’s subsequent treatment, and thereby prevent or alleviate his osteomyelitis. (R. 1101). Dr. Haralabatos would have had no such opportunity, however, between April 19 and May 4, 2004 – the time period during which the Orsis missed three follow-up appointments with Dr. Haralabatos. (R. 855, 1101). The unnamed physician’s failure to account for important facts compromises the validity of his opinions concerning Dr. Haralabatos’ care for Keith Orsi. C. The Orsis’ Expert Physician’s Affirmation Presents Conclusory and Speculative Opinions Unsubstantiated by Fact. “General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician’s summary judgment motion.” Alvarez v. Prospect Hosp., 68 N.Y.2d at 325. Such is the case when an expert fails to explain his opinion as to a patient’s “condition or why it - 37 - required [particular] treatment.” Caulkins v. Vicinzano, 71 A.D.3d 1224, 1226 (3d Dep’t 2010). Accord, Rebozo v. Wilen, 41 A.D.3d 457, 459 (2d Dep’t 2007) (rejecting the plaintiff expert’s affidavit as conclusory because it “failed to differentiate between the acts of the various medical providers or to explain how the plaintiff’s injuries would have been less severe with an earlier diagnosis”). Stated differently, “[a] physician’s affidavit in opposition to a summary judgment motion must . . . contain an opinion that the challenged acts or omissions were a competent producing cause of the injury.” Arkin v. Resnick, 68 A.D.3d at 694 (2d Dep’t 2009) (emphasis added). Accord, Murray v. Hirsch, 58 A.D.3d 701, 703 (2d Dep’t 2009); Rossi v. Arnot Ogden Med. Ctr., 268 A.D.2d 916, 918 (3d Dep’t 2000). The Orsis’ expert physician’s affirmation does not satisfy this requirement. In concluding that Dr. Haralabatos deviated from good and accepted medical practice, that physician opined that Dr. Haralabatos should have ordered a wound culture and additional x-rays and should have taken Keith Orsi’s temperature on April 15 and April 19, 2004. (R. 1073-74, 1076-77, 1079). He failed to explain how those actions would have prevented Keith Orsi’s subsequent osteomyelitis or decreased its severity, however. (R. 1099, 1103). Absent any such explanation, the Orsis’ expert physician’s opinion constitutes nothing more than speculation, and does not raise any triable issue of fact. - 38 - 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 alone, this Court should affirm summary judgment in favor of Dr. Haralabatos and Stony Brook Orthopaedic Associates. POINT II. THE PROXIMATE CAUSE ARGUMENT OF DR. HARALABATOS AND STONY BROOK ORTHOPAEDIC ASSOCIATES IS PROPERLY BEFORE THIS COURT This Court also should affirm the dismissal of the Complaint for a second reason: because any purported departures by Dr. Haralabatos from good and accepted medical practice “did not proximately cause [Keith Orsi’s] injury.” (R. CA5). Implicitly recognizing that Dr. Haralabatos’ prior care could not have caused Keith Orsi to develop osteomyelitis during a 15-day period when they failed to show at two appointments with Dr. Haralabatos and cancelled a third, the Orsis seek to prevent the Court from considering this argument on appeal by - 39 - claiming that Dr. Haralabatos and Stony Brook Orthopaedic Associates failed to preserve it for appellate review. This is not so. To the contrary, they raised their proximate cause argument in their answer and in support of their summary judgment motion. Even if they had not, the Appellate Division’s evaluation of that argument constituted an appropriate exercise of its discretion, in the interest of justice. A. Dr. Haralabatos and Stony Brook Orthopaedic Associates Presented Their Proximate Cause Argument to the Trial Court. The record conspicuously demonstrates that, on at least three occasions, Dr. Haralabatos and Stony Brook Orthopaedic Associates raised the absence of proximate causation between Dr. Haralabatos’ treatment and Keith Orsi’s development of osteomyelitis at the Trial Court level. They did so first in their answer to the complaint. Matter of Schulz v. State, 81 N.Y.2d 336, 344 (1993) (finding that a litigant had preserved an argument “asserted at the first opportunity in the pleadings”). Dr. Haralabatos and Stony Brook Orthopaedic Associates denied (R. 60-61) the Orsis’ allegation (R. 50-51) that their conduct caused Keith Orsi to sustain any injury. At their first opportunity in the answer, therefore, Dr. Haralabatos and Stony Brook Orthopaedic Associates made the Orsis “manifestly aware” of their proximate cause argument’s “potential significance.” Matter of Diamond Asphalt Corp. v. Sander, 92 N.Y.2d 244, 254 (1998). - 40 - Second, Dr. Haralabatos and Stony Brook Orthopaedic Associates expounded upon this argument in support of their motion for summary judgment: It cannot be said to any degree of medical certainty when precisely [Keith Orsi’s] osteomyelitis began. However, as of April 19th – the last time Dr. Haralabatos . . . had an opportunity to examine [Keith Orsi] – the lab data and the clinical picture described by Dr. Haralabatos . . . all indicated that there was no active osteomyelitis at that time. . . . A series of missed visits by [Keith Orsi] which occurred between the April 19th visit and the May 4th [visit to Dr. Haralabatos] deprived [her] of the opportunity to evaluate [Keith Orsi] at that critical time and makes it impossible to determine when precisely before the diagnosis by Dr. Haralabatos on May 5, 2004, the osteomyelitis began or became apparent. (R. 25). (See also further discussion of Keith Orsi’s missed appointments at R. 36). In their Memorandum of Law that accompanied their summary judgment motion, Dr. Haralabatos and Stony Brook Orthopaedic Associates expressly contended that “[the Orsis] cannot demonstrate that the care and treatment rendered by Dr. Haralabatos was the proximate cause of [Keith Orsi’s] infection.” (R. 1105). These statements, combined with the record evidence of Keith Orsi’s missed appointments with Dr. Haralabatos between April 19 and May 4, 2004, “most decidedly raised the issue of proximate cause before Supreme Court.” Edmonds v. Quellman, 277 A.D.2d 579, 582 (3d Dep’t 2002). Accord, Sokolow, Dunaud, Mercadier & Carreras LLP v. Lacher, 299 A.D.2d 64, 69-70 (1st Dep’t 2002) (finding that assertions in a fact affidavit and a memorandum of law were - 41 - sufficient to preserve legal arguments that arose from those assertions); Pappalardo v. N.Y. Health & Racquet Club, 279 A.D.2d 134, 139 (1st Dep’t 2000) (same). The opinions of Dr. Donna Phillips and Dr. Lorry Rubin support those arguments. After recognizing Keith Orsi’s three missed appointments with Dr. Haralabatos between April 19 and May 4, 2004 (R. 127, 138), Dr. Phillips and Dr. Rubin commented: Prior to the May 4th office visit, it was reasonable for Dr. Haralabatos to rely on the lab data, her own clinical judgment as well as the judgment of infectious disease consultants who assisted in the care and treatment of Keith Orsi, and to treat Keith’s infection as a superficial pin site infection rather than conclude that he had a more serious infection of the bone. (R. 131, 140). As such, Dr. Phillips and Dr. Rubin concluded that “Dr. Haralabatos’ care and treatment of Keith [Orsi] . . . was reasonable and consistent with good and accepted orthopedic practice,” because “[p]rior to May 4th, there was no basis to conclude to a reasonable degree of medical certainty that Keith had osteomyelitis.” (Id.). Given this conclusion, the Orsis cannot substantiate any causal link between Dr. Haralabatos’ care and April 15 and April 19, 2004, with Keith Orsi’s subsequent bone infection.3 3 The Orsis contend that “neither defense expert is able to offer opinions as to what caused Keith’s injuries” or to offer any “opinion on causation.” Apps. Br. p. 22. Even if this were true (which it is not), it would not mean that Dr. Haralabatos and Stony Brook Orthopaedic Associates have failed to preserve their proximate cause argument, because medical records or deposition testimony alone may demonstrate that a defendant’s conduct did not cause a plaintiff’s adverse outcome. Fox v. Watermill Enters., Inc., 19 A.D.3d 364, 365 (2d Dep’t - 42 - Third, Dr. Haralabatos and Stony Brook Orthopaedic Associates reiterated this argument on reply. In answer to the Orsis’ contention that Dr. Haralabatos should have ordered testing of Keith Orsi’s blood on April 26, 2004 (R. 1080, 1083), Dr. Haralabatos and Stony Brook Orthopaedic Associates responded that such testing would have been impossible, because Keith Orsi failed to show for any of his three scheduled appointments with Dr. Haralabatos between April 19 and May 4, 2004: In sharp contrast to the allegations relating to failure to order blood work on April 19th, plaintiffs' expert does attempt to make a proximate cause argument regarding the failure to order blood work on April 26th. . . . The problem with this claim, however, is that, as substantiated by the medical records and acknowledged by plaintiffs' expert, there was no real opportunity to conduct blood testing or to provide any other kind of care or treatment on that date since plaintiff missed a series of appointments to see Dr. Haralabatos between April 19th and May 4th . . . . Thus, Dr. Haralabatos was deprived of an opportunity to re-evaluate Keith's condition on April 22nd and to order blood work on April 26th assuming, arguendo, that that was the standard of care as plaintiffs allege. (R. 1102) (emphasis added). 2005); Rich v. Diokno, 179 A.D.2d 987, 988-89 (3d Dep’t 1992). Such is the case here. The gap in Keith Orsi’s treatment between April 19 and May 4, 2004, as a result of three missed appointments reflected in deposition testimony and in Keith Orsi’s medical records, substantiates that Dr. Haralabatos’ conduct did not cause any injury that resulted from Keith Orsi’s development of osteomyelitis. - 43 - The Trial Court confirmed that Dr. Haralabatos and Stony Brook Orthopaedic Associates did present their proximate cause argument in support of their summary judgment motion: [Dr. Haralabatos] contends that plaintiffs’ expert did not state the manner in which a wound culture would have prevented or decreased the severity of Keith’s osteomyelitis. As to the failure to take Keith’s temperature on April 15, Haralabatos contends that there has been no showing that the failure to obtain a temperature reading constitutes a departure from the standing of care or how such alleged departure constitutes a proximate cause of the injury. As to alleged failure to prescribe antibiotics on the April 15 visit, she contends . . . that plaintiffs’ expert’s assertion that the length of the prescription is unclear from the record and that a number of days passed without the administration of an antibiotic, is unsupported by the record and insufficient to meet the proximate cause burden. . . . It is contended that plaintiffs’ expert has failed to articulate the manner in which the failure to order blood work on April 19 proximately caused Keith’s osteomyelitis . . . . [Dr. Haralabatos] also contends that the allegation that no temperature was taken on [April] 19th is unaccompanied by a statement that such failure constituted a departure from the standard of care or that it proximately caused Keith’s injury. . . . It is noted that the issue of proximate cause was addressed, at length, by Dr. Haralabatos. (R. 13-14) (emphasis added). To contend, as the Orsis do, that Dr. Haralabatos and Stony Brook Orthopaedic Associates somehow failed to preserve a proximate cause argument that the Trial Court referenced in its Order and acknowledged Dr. Haralabatos to have addressed “at length” is utterly preposterous. - 44 - The record is clear. In their answer, on their original summary judgment motion, and on their reply, Dr. Haralabatos and Stony Brook Orthopaedic Associates argued that Dr. Haralabatos’ conduct did not cause Keith Orsi’s osteomyelitis, as a matter of law. The Trial Court confirmed that this was so. They have preserved their proximate cause argument for appellate review. B. The Appellate Division Properly Exercised Discretion to Review the Proximate Cause Argument. Even if Dr. Haralabatos and Stony Brook Orthopaedic Associates had not preserved their proximate cause argument (which they did), the Appellate Division exercised appropriate discretion to review it regardless. This Court has recognized that the Appellate Division retains inherent authority “to review unpreserved issues in the interest of justice” for the first time on appeal. Bingham v. N.Y. City Transit Auth., 99 N.Y.2d 355, 359 (2003). Accord, Matter of Woodin v. Lane, 119 A.D.2d 969, 970 (3d Dep’t 1986) (“[I]n the interest of justice, [the Appellate Division] may always exercise its broad discretion to consider matters neither properly presented nor preserved below.”). The Appellate Division’s reversal of a Supreme Court order to correct an “unpreserved error” constitutes “an exercise of discretion which is beyond this court’s power to review.” Brown v. City of New York, 60 N.Y.2d 893, 894 (1983). This is especially true when the error rectified by the Appellate Division concerns “an issue of law that appears on the face of the record which, had it been - 45 - brought to the attention of the Supreme Court, could not have been avoided.” Fish King Enters. v. Countrywide Ins. Co., 88 A.D.3d 639, 642 (2d Dep’t 2011). Accord, Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 405, 408 (1st Dep’t 2009); Paul v. Cooper, 45 A.D.3d 1485, 1486 (4th Dep’t 2007). The proximate cause argument of Dr. Haralabatos and Stony Brook Orthopaedic Associates presents such a legal issue. The record demonstrates that Keith Orsi missed three appointments with Dr. Haralabatos between April 19 and May 4, 2004 (R. 855), even though the Orsis had been instructed to continue following up with Dr. Haralabatos during that time (R. 268, 394). The Orsis’ own expert physician recognized this circumstance. (R. 1079). Based in part upon those missed appointments (R. 127, 138), Dr. Donna Phillips and Dr. Lorry Rubin concluded that Dr. Haralabatos was not negligent in her care and treatment of Keith Orsi (R. 130, 139). In the answer and in her motion papers, moreover, Dr. Haralabatos expressly argued that her conduct did not constitute the proximate cause of Keith Orsi’s alleged injuries. (R. 61, 1102, 1106). The record reflects Keith Orsi’s three missed appointments with Dr. Haralabatos, as well as their severance of any causal link between Dr. Haralabatos’ conduct and Keith Orsi’s osteomyelitis. Upon that record, the Appellate Division determined that the Orsis “failed to raise a triable issue of fact as to whether [Dr. - 46 - Haralabatos’] alleged departures [from good and accepted medical practice] proximately caused [Keith Orsi’s] condition.” (R. CA5). This was an appropriate exercise of the Appellate Division’s discretion, which this Court should not disturb.4 POINT III. DR. HARALABATOS’ CONDUCT DID NOT CONSTITUTE THE PROXIMATE CAUSE OF KEITH ORSI’S OSTEOMYELITIS In their Brief to this Court, the Orsis submit that “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.” Apps. Br. p. 45. Calling such an outcome a paradox (id. p. 18), the Orsis argue that any triable issue of fact solely as to whether Dr. Haralabatos breached a duty to engage in good and accepted medical practice in treating Keith Orsi is sufficient to deny her summary judgment (id. p. 60). This astounding contention contravenes a hornbook negligence principle learned by every first-year law student: in order to establish the 4 McMillan v. State, 72 N.Y.2d 871 (1988), and Merrill by Merrill v. Albany Medical Center Hospital, 71 N.Y.2d 990 (1988), do not counsel otherwise. In those cases, this Court declined to evaluate arguments that the appellant before this Court had raised for the first time at the Appellate Division, which had exercised its discretion to reject those arguments. Dr. Haralabatos and Stony Brook Orthopaedic Associates, by contrast, are the respondents before this Court, whereas the Orsis are the appellants. Any purported failure to preserve the proximate cause argument of Dr. Haralabatos and Stony Brook Orthopaedic Associates, without more, cannot justify reversal of the Appellate Division, because the Appellate Division exercised appropriate discretion to credit that argument and award them summary judgment. - 47 - defendant’s liability for negligence, the plaintiff must demonstrate not only that the defendant breached a duty to the plaintiff, but also that such breach proximately caused the plaintiff to sustain injury. Though negligence and proximate cause frequently overlap in the proof and theory which support each of them, they are not the same conceptually. It must also be proved that the negligence was the cause of the event which produced the harm sustained by one who brings the complaint. . . . [I]f either negligence or proximate cause relating to [the defendants’] conduct was not established, the question of [defendants’] liability . . ., as well as the question of whether [the plaintiff] was barred from recovering . . ., should not have been submitted to the jury. Sheehan v. City of New York, 40 N.Y.2d 496, 501-02 (1976) (citing, inter alia, Saugerties Bank v. Delaware & Hudson Co., 236 N.Y. 425 (1923); Restatement (Second) of Torts § 434). In a medical malpractice action, therefore, a defendant physician is liable only if: (i) his or her treatment did not consist of good and accepted medical practice, and (ii) such treatment caused the plaintiff’s adverse outcome. Koehler v. Schwartz, 48 N.Y.2d 807, 809 (1979); Wicksman v. Nassau County Health Care Corp., 27 A.D.3d 644, 644 (2d Dep’t 2006). For this reason, a physician is entitled to summary judgment – even though the plaintiff presents a triable issue of fact as to whether the physician engaged in good and accepted medical practice – in the absence of any triable issue of fact as to whether that conduct caused the plaintiff’s - 48 - alleged injury. Pichardo v. Herrera-Acevedo, 77 A.D.3d 641, 642 (2d Dep’t 2010); O’Shea v. Buffalo Med. Group, P.C., 64 A.D.3d 1140, 1141 (4th Dep’t 2009). Such is the case here. Contrary to the Orsis’ assertion (Apps. Br. pp. 65-66), Dr. Haralabatos and Stony Brook Orthopaedic Associates do not seek or need to prove that Keith Orsi’s three missed appointments with Dr. Haralabatos between April 19 and May 5, 2004, were the cause of his osteomyelitis. Rather, Dr. Haralabatos and Stony Brook Orthopaedic Associates need only demonstrate – and indeed have demonstrated – the absence of a triable issue of fact as to whether Dr. Haralabatos’ treatment caused that adverse outcome. Keith Orsi’s missed appointments arose from a failure to follow up with Dr. Haralabatos for over two critical weeks. Dr. Haralabatos cannot bear liability for the failure to diagnose Keith Orsi’s osteomyelitis that began and was first detectable – in the opinion of Dr. Phillips and Dr. Rubin, without rebuttal by the Orsis’ expert physician – during this treatment gap. Simply put, Keith Orsi’s missed appointments constituted an “independent intervening occurrence” that did not “flow from” Dr. Haralabatos’ 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)). Dr. Haralabatos’ treatment of Keith Orsi on April 15 and 19, 2004, therefore does not constitute the proximate cause of his - 49 - osteomyelitis or any resulting injury. As such, this Court should affirm the Appellate Division’s award of summary judgment in favor of Dr. Haralabatos and Stony Brook Orthopaedic Associates. A. Dr. Haralabatos’ Conduct on April 15 and 19, 2004, Did Not Constitute the Proximate Cause of Keith Orsi’s Alleged Injury, Because the Orsis Failed to Follow Up with Dr. Haralabatos for Over Two Weeks Thereafter, Contrary to Her Express Instructions. In New York, a refusal to follow the defendant’s instructions constitutes an unforeseeable event that destroys any chain of causation that could have joined the defendant’s allegedly negligent conduct and the plaintiff’s subsequent injury. 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 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 the Appellate Division 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 - 50 - injury that responsibility for the injury may not be reasonably attributed to the defendant. . . . [I]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, a 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. In Adams v. Anderson (“Adams”), 84 A.D.3d 1522 (3d Dep’t 2011), the plaintiff alleged that the defendant physician had failed to diagnose and treat her complex regional pain syndrome in a timely manner. In opposition to the defendant’s summary judgment motion, the plaintiff’s expert claimed that the plaintiff had suffered injury because the defendant had delayed performing a bone scan and commencing pain management therapy. Id. at 1523, 1524. The Court discounted this opinion, because the defendant had timely recommended these measures, but the plaintiff had refused them. Id. at 1524. For that reason, the Court determined that the plaintiff had failed to “raise a triable issue of fact as to - 51 - the nexus between the alleged malpractice and plaintiff’s injury,” and awarded the defendant summary judgment. Id. 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 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 - 52 - 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.” 58 A.D.2d 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 upheld the Appellate Division’s determination that “no malpractice on [Dr. Appelman’s] part . . . could be a proximate cause of any damage to the plaintiff.” Id. at 110. The Orsis attempt to distinguish Adams, Sheikh, Miller, and Gibbons, in that they arose from an adult patient’s voluntary ignorance of his or her physician’s instructions. Apps. Br. p. 28. They note that Keith Orsi, by contrast, was four years old in 2004, and could not have chosen to visit Dr. Haralabatos on his own. Id. This is a distinction without difference. Even when the patient is a child, the failure of the child’s parents to follow the instructions of the child’s physician also severs any causal link between the physician’s conduct and the child’s adverse outcome. - 53 - Rivera v. Kleinman (“Rivera”), 67 A.D.3d 482 (1st Dep’t 2009), 16 N.Y.3d 757 (2011), is on point. In that case, 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.” 67 A.D.3d at 483. The Appellate Division determined that the child’s parents could not establish proximate cause, because they had declined to follow the defendants’ instructions for the child’s post-operative care. This Court affirmed summary judgment for the defendants, even though “the hardware’s delayed removal” arose from the inattention of the child’s parents. 16 N.Y.3d at 759. Just as the plaintiffs in Adams, Sheikh, Miller, Gibbons, and Rivera 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. Not surprisingly in an effort to avoid summary judgment, the Orsis disagree that Dr. Haralabatos gave them any such instruction. Dr. Haralabatos, they assert, “could not testify that she conveyed to them the urgency of the need - 54 - for follow-up care.” Apps. Br. p. 64. Yet the record demonstrates otherwise. On April 19, 2004, 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, and “want[ed] to see [Keith Orsi] twice per week” after April 19, 2004. (R. 268). For that reason, Dr. Haralabatos herself “express[ed] the urgency” to Lisa Orsi that she bring Keith to future follow-up appointments. (R. 268). Zhanna Sikorski, Dr. Haralabatos’ physician’s assistant, did likewise on April 19. She testified at her deposition: I remember that I brought the prescription for the antibiotics to the room, and it was [Lisa Orsi] and [Michael Orsi] and Keith. I gave a prescription for the antibiotics, and I strongly encouraged the parents to give the antibiotics, to give Keith antibiotics, to follow the doctor’s recommendations and come the time Dr. Haralabatos wanted to see them. (R. 394) (emphasis added). That time was another appointment that Dr. Haralabatos asked Lisa Orsi to schedule for Keith for Thursday, April 22, or Friday, April 23, 2004. (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. - 55 - Orsi then set yet another appointment for May 3, 2004, but she later cancelled. (Id.). Although the Orsis blame car trouble for these missed appointments (Apps. Br. p. 64), it would not excuse the Orsis’ failure to follow up pursuant to Dr. Haralabatos’ instructions. The Orsis 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 and 29 appointments upon realizing that they had car trouble, instead of failing to show without any advance notice to Dr. Haralabatos or her staff. Dr. Haralabatos and Stony Brook Orthopaedic Associates do not dispute the foreseeability of a patient’s occasional need to change a doctor’s appointment to accommodate a busy schedule and unanticipated circumstances. Apps. Br. p. 70. What was not at all foreseeable was the Orsis’ decision to ignore two follow-up appointments with Dr. Haralabatos – without trying to procure alternative transportation to her office and without trying to reschedule in advance – and thereby to deny Dr. Haralabatos any opportunity to examine Keith Orsi for over two weeks after she and Zhanna Sikorski had expressly instructed the Orsis on April 19, 2004, to visit twice weekly for additional follow-up appointments until further notice. The failure to follow Dr. Haralabatos’ instructions was the unforeseeable circumstance that broke the causal nexus between Dr. Haralabatos’ - 56 - treatment on April 15 and April 19, 2004, and Keith’s alleged injuries, and requires summary judgment for the defendants. 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). 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’ expert physician admits that Keith Orsi’s osteomyelitis developed. Because 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, the Appellate Division’s award of summary judgment should be affirmed. - 57 - B. The Gap in Keith Orsi’s Treatment Between April 19 and May 5, 2004, Disqualifies Dr. Haralabatos’ Conduct on April 15 and April 19 from Constituting the Proximate Cause of His Alleged Injury. Keith Orsi’s three missed appointments with Dr. Haralabatos severed any causal connection between Dr. Haralabatos’ conduct on April 15 and 19, 2004, and Keith Orsi’s subsequent development of osteomyelitis, not only because they exemplify the Orsis’ disobedience of Dr. Haralabatos’ instructions, but also because they reflect a significant interruption in Dr. Haralabatos’ treatment. The analysis of an injury’s proximate cause: incorporates a test of ‘temporal duration,’ which asks if ‘the occurrence of the injury was tied to the claimed negligent act or omission within a reasonable lapse of time. . . . Experience has shown that where a great length of time has elapsed between the actor’s negligence and harm to another, a great number of contributing factors may have operated, many of which may be difficult or impossible of actual proof. [When] the lapse of time [is] not reasonable . . . . the [defendant is] entitled to dismissal of the claim because it [has] established, as a matter of law, that any negligence on its part was not a proximate cause of [the plaintiff’s] injuries. Williams v. State, 18 N.Y.3d 981, 984 (2012) (citing, inter alia, Restatement (Second) of Torts § 433(c), cmt. f) (internal brackets omitted). This Court’s opinion in Pommells v. Perez (“Pommells”), 4 N.Y.3d 566 (2008), is illustrative. Pommells decided three appeals in which the plaintiffs had alleged that automobile accidents had caused them to sustain “serious injury,” as New York Insurance Law § 5102(d) defines that term. In two of those appeals, - 58 - the record on the defendants’ summary judgment motions demonstrated a gap of several years between the end of the plaintiffs’ medical treatment and the preparation of expert reports opining that they had experienced serious injuries. Whereas one of those plaintiffs had ceased treatment on the advice of his physician, the other had done so solely of his own volition. This Court explained, “While a cessation of treatment is not dispositive – the law surely does not require a record of needless treatment in order to survive summary judgment – a plaintiff who terminates therapeutic measures following the accident, while claiming ‘serious injury,’ must offer some reasonable explanation for having done so.” Pommells, 4 N.Y.3d at 574. Given this standard, the Court held that the former plaintiff had established a triable issue of fact as to whether his accident had caused serious injury, because his “cessation of treatment” upon his doctor’s recommendation “was explained sufficiently to . . . survive summary judgment.” Id. at 577. The latter plaintiff, by contrast, did not defeat summary judgment, because his gap in treatment, absent any medical justification, “interrupted the chain of causation between the accident and claimed injury.” Id. at 572. Accord, Cekic v. Zapata, 69 A.D.3d 464, 464 (1st Dep’t 2010); Cervino v. Gladysz-Steliga, 36 A.D.3d 744, 745 (2d Dep’t 2007). This principle has been applied in medical malpractice cases as well. Paradies v. Benedictine Hospital, 77 A.D.2d 757 (3d Dep’t 1980), is on point. In - 59 - that case, the plaintiff alleged that the defendants’ negligence had caused her husband to commit suicide. The plaintiff’s husband had done so, however, three weeks after he had voluntarily checked out of a mental hospital, against the defendants’ advice. Given this circumstance, the Court awarded the defendants summary judgment, because the record failed to contain “any evidence establishing a causal connection between the alleged acts of negligence and the subsequent suicide which occurred some three weeks after the decedent’s release.” Id. at 759. Such is the case here. As of mid-April 2004, Dr. Haralabatos wanted to examine Keith Orsi twice per week, until further notice, and advised Keith Orsi’s mother as such on April 19, 2004. (R. 268). Notwithstanding this admonition, the Orsis missed scheduled appointments with Dr. Haralabatos on April 22, April 29, and May 3, 2004. As a consequence, Dr. Haralabatos could not and did not evaluate Keith Orsi again until the Orsis honored their appointment on May 4, 2004. The Orsis’ three missed appointments – absent any effort to reschedule in advance or to seek alternative transportation to Dr. Haralabatos’ office – resulted in a treatment gap over two weeks long. Because of this time lapse – which is certainly unreasonable when juxtaposed with Dr. Haralabatos’ instruction to the Orsis to visit twice weekly during that interval – Dr. Haralabatos’ conduct on April 15 and 19, 2004, does not constitute the proximate cause of Keith Orsi’s osteomyelitis discovered on May 4, 2004, as a matter of law. - 60 - The Orsis, of course, disagree. Citing cases demonstrating “joint responsibility among successive tortfeasors,” the Orsis contend that their missed appointments – even if they were unforeseeable – do not foreclose a triable issue of fact as to whether Dr. Haralabatos’ earlier alleged negligence caused Keith Orsi to develop osteomyelitis. Apps. Br. pp. 42, 70-73. Because “the opinions of conflicting experts are sufficient to warrant a denial of summary judgment,” the Orsis submit, their hired expert physician’s conclusion that Dr. Haralabatos’ conduct on April 15 and 19, 2004, “was a substantial factor in causing the degree and extent of [Keith Orsi’s] osteomyelitis” automatically requires a jury trial to resolve this action. Id. p. 39. These arguments lack merit, because the record does not demonstrate, nor does the Orsis’ expert opine, that Keith Orsi had developed osteomyelitis as of April 19, 2004 – Keith’s last visit with Dr. Haralabatos before his two-week gap in treatment. That crucial fact distinguishes this case from Datiz by Datiz v. Shoob (“Datiz”), 71 N.Y.2d 867 (1988); Ravo v. Rogatnick (“Ravo”), 70 N.Y.2d 305 (1987); and Feinberg v. Feit (“Feinberg”), 23 A.D.3d 517 (2d Dep’t 2005), the appellate medical malpractice decisions upon which the Orsis principally rely. The plaintiff in each of those cases had produced credible opinions, based upon objective medical evidence, that a defendant’s conduct had contributed to the plaintiff’s adverse outcome – whether or not a subsequent physician’s - 61 - conduct had also contributed likewise. In Datiz and in Feinberg, for example, the plaintiff established that the defendant had failed to undertake measures that would have diagnosed the plaintiff’s condition earlier (such as, in Feinberg, investigating a potentially cancerous mass that had appeared on an x-ray), and thereby had proximately caused the plaintiff to suffer injury. Datiz, 71 N.Y.2d at 868; Feinberg, 23 A.D.3d at 519. In Ravo, the plaintiff demonstrated that the negligence of both the obstetrician who had delivered her and the pediatrician who had subsequently cared for her had caused her irreparable brain damage. Ravo, 70 N.Y.2d at 308. In this action, by contrast, the record simply contains no evidence that Dr. Haralabatos’ alleged departures from good and accepted medical practice caused or worsened Keith Orsi’s osteomyelitis. According to the Orsis’ expert physician, Dr. Haralabatos should have: Taken additional x-rays of Keith Orsi’s left arm on April 15 and 19, 2004; Ordered a culture of the wound on Keith Orsi’s left arm on April 15, 2004; Taken Keith Orsi’s temperature on April 15 and 19, 2004; Ordered additional blood work for Keith Orsi on April 19, 2004; and Prescribed prophylactic antibiotics to Keith Orsi on April 15, 2004. (R. 1071, 1073-79). - 62 - The first four of these measures could not have treated any infection. They also would not have aided diagnosis of osteomyelitis in Keith Orsi, because he had not developed that condition as of April 19, 2004. This is the opinion of both Dr. Donna Phillips and Dr. Lorry Rubin, and the Orsis’ expert physician – aside from acknowledging that Keith Orsi contracted osteomyelitis sometime after April 15, 2004 – does not dispute it. (R. 131, 140). The unsubstantiated argument of the Orsis’ attorneys that “infection had seeded” in Keith Orsi’s left elbow as of April 19, 2004 (Apps. Br. p. 23), is insufficient to create an issue of fact. Dr. Haralabatos’ failure to pursue the first four measures, therefore, could not have caused or worsened Keith Orsi’s osteomyelitis, because it did not exist on April 15 or 19, 2004. Notwithstanding the absence of any evidence of osteomyelitis, Dr. Haralabatos prescribed Keith Orsi a precautionary regimen of the antibiotic Cefzil on April 19, 2004. (R. 35, 260-61, 810). The Orsis’ expert physician did not question Dr. Haralabatos’ choice of Cefzil or her recommended dosage. Rather, he opined that this treatment only “could have” proven more effective, had Dr. Haralabatos prescribed it four days earlier. (R. 1084). This lukewarm expression of mere possibility is nothing more than speculation, insufficient to create a factual issue as to the cause of Keith Orsi’s osteomyelitis. - 63 - Even if it purports to conflict with the opinions offered by the defendant’s experts, an expert affidavit “proffered as the sole evidence to defeat summary judgment must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent’s favor.” Romano v. Stanley, 90 N.Y.2d 444, 451-52 (1997). As such, an expert affidavit that presents “conclusory, speculative” opinions that are “without basis in the record” cannot overcome a summary judgment motion in a medical malpractice action. Lau v. Wan, 93 A.D.3d 763, 765 (2d Dep’t 2012). Accord, Picerno v. N.Y. City Transit Auth., 4 A.D.3d 349, 350 (2d Dep’t 2004); Jaffe v. N.Y. Hosp., 249 A.D.2d 194, 195 (1st Dep’t 1998). Such is true of the Orsis’ expert physician’s affirmation – the only evidence, other than arguments in an attorney’s affirmation (R. 1048-64), offered by the Orsis in opposition to the pending summary judgment motion. That physician fails to explain how additional diagnostic measures could have aided Dr. Haralabatos in detecting osteomyelitis that – without that physician’s dispute – began after April 19, 2004. That physician also fails to demonstrate how topical Cefzil would have proven more effective for Keith Orsi if Dr. Haralabatos had prescribed it four days earlier, aside from speculating that this “could” be so. (R. 1084). Unlike the expert testimony credited in Datiz, Ravo, and Feinberg, the - 64 - affidavit of the Orsis’ expert physician does not substantiate how any of Dr. Haralabatos’ five claimed departures from good and accepted medical practice could have caused or worsened Keith Orsi’s osteomyelitis. Even though that affidavit claims to contradict the opinions of Dr. Donna Phillips and Dr. Lorry Rubin, therefore, it does not create a triable issue of fact. The record is clear: against Dr. Haralabatos’ express instruction, Keith Orsi and his family missed follow-up appointments with Dr. Haralabatos on April 22, April 29, and May 3, 2004, without trying to reschedule in advance or to arrange for alternate transportation to Dr. Haralabatos’ office. This unforeseeable inattention to Keith Orsi’s treatment gave rise to a gap of more than two weeks between Dr. Haralabatos’ examination of Keith Orsi on April 19, 2004, and the detection of his osteomyelitis on May 4, 2004. That treatment lapse interrupted the chain of causation between Dr. Haralabatos’ conduct on April 15 and 19, 2004, and Keith Orsi’s development of osteomyelitis. The affidavit of the Orsis’ expert does not present a triable issue of fact to the contrary, because it fails to explain how Dr. Haralabatos could have diagnosed osteomyelitis that did not exist as of April 19, 2004, or how prescribing antibiotic therapy four days earlier would have prevented or alleviated Keith Orsi’s adverse outcome. As such, this Court should not disturb the Appellate Division’s appropriate exercise of discretion to award Dr. Haralabatos and Stony Brook Orthopaedic Associates summary judgment. - 65 - POINT IV. GENERAL OBLIGATIONS LAW § 3-111 DOES NOT BAR THE PROXIMATE CAUSE ARGUMENT OF DR. HARALABATOS AND STONY BROOK ORTHOPAEDIC ASSOCIATES New York General Obligations Law (“GOL”) § 3-111 provides that, “[i]n an action brought by an infant to recover damages for personal injury the contributory negligence of the infant’s parent or other custodian shall not be imputed to the infant.” This means that “a defendant . . . found to have breached a duty that was a proximate cause of a child’s injures” cannot “use a parent’s negligence to reduce the child’s damages.” Vaughan v. St. Francis Hosp. (“Vaughan”), 29 A.D.3d 1133, 1136 (3d Dep’t 2006). Even though Keith Orsi’s missed appointments prevented Dr. Haralabatos from examining him for more than two weeks during a critical time of his treatment, the Orsis contend that New York General Obligations Law (“GOL”) § 3-111 prohibits this circumstance from justifying summary judgment in favor of Dr. Haralabatos and Stony Brook Orthopaedic Associates. Notwithstanding any merit to this assertion, it must fail because the Orsis never presented it to the Trial Court. An argument that the appellant before this Court had “raised for the first time at the Appellate Division” is “unpreserved” for this Court’s review. McMillan v. State, 72 N.Y.2d 871, 872 (1988). Accord, Merrill by Merrill v. Albany Med. Ctr. Hosp., 71 N.Y.2d 990, 990 (1988). As - 66 - discussed supra (at pp. 39-44), Dr. Haralabatos and Stony Brook Orthopaedic Associates contended before the Trial Court that Dr. Haralabatos’ conduct on April 15 and 19, 2004, could not have constituted the proximate cause of Keith Orsi’s osteomyelitis, because his missed appointments with Dr. Haralabatos on April 22, April 29, and May 3, 2004, gave rise to a treatment gap of over two weeks during which his osteomyelitis first began. As such, the Trial Court noted that “the issue of proximate cause was addressed, at length, by Dr. Haralabatos.” (R. 14). The Orsis therefore could have raised GOL § 3-111 before the Trial Court in an effort to preclude the proximate argument of Dr. Haralabatos and Stony Brook Orthopaedic Associates, but they failed to do so. The Orsis did not preserve, and this Court should not consider, their contention that GOL § 3-111 somehow prohibits that argument now. In any event, GOL § 3-111 does not exonerate the Orsis from proving the elements of medical malpractice – including the proximate cause element – in order to prevail on the merits of this action. Stated differently, [t]he analysis regarding the initial question of whether negligence (or malpractice) occurred remains unaltered by [GOL] § 3-111 in that the fundamental elements – i.e., a breach of duty that is the proximate cause of injuries – must be shown. Vaughan, 29 A.D.3d at 1136. - 67 - In Vaughan, for example, the plaintiff sought to establish that the defendants had deviated from good and accepted medical practice in discharging her son from the hospital, yet preclude evidence at trial of the content of the discharge instructions or her failure to follow them. The Court held that those instructions were admissible, notwithstanding GOL § 3-111, because they concerned one of the “fundamental elements” of the plaintiff’s medical malpractice claim – viz., whether the defendants had breached their duty to the patient. 29 A.D.3d at 1136. This Court and the Appellate Division have likewise held that, when the action (or inaction) of an infant plaintiff’s parents or grandparents interrupts any causal link between the defendant’s conduct and the infant’s injuries, the defendant bears no liability for those injuries because his conduct does not constitute their proximate cause as a matter of law. This is so, contrary to the Orsis’ argument (Apps. Br. p. 28), even though an infant plaintiff may be non sui juris in his or her own right. In addition to Rivera v. Kleinman (“Rivera”), 67 A.D.3d 482 (1st Dep’t 2009), 16 N.Y.3d 757 (2011), discussed supra at page 53, two cases are on point. In Thompson v. Town of Brookhaven (“Thompson”), 34 A.D.3d 448 (2d Dep’t 2006), a mother and her child sought to hold their landlord liable for injuries that the child sustained when the child fell through a crawl space in a - 68 - closet and landed on a defective oil burner. The landlord had admitted that, prior to the accident, he had known “that the oil burner located in the crawl space was defective,” and he had not “timely repair[ed] or replace[d] the burner.” Id. at 450. The Court nonetheless awarded the landlord summary judgment, in part because the child’s mother had failed “affirmatively to ensure that the hatch [over the crawl space] had been replaced before permitting her child to enter the room . . . .” Id. Rather than invoke GOL § 3-111 to excuse the mother’s inattention, the Court held that it was “‘independent of or far removed from’ . . . any negligence on [the landlord’s] part and, as such, constituted [a] superseding [event] sufficient to break the causal nexus between [the landlord’s] failure to repair the burner and the infant plaintiff’s injuries.” Id. at 450-51 (quoting, in part, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315 (1980)). Santiago by Santiago v. VIG Corp. (“Santiago”), 201 A.D.2d 337 (1st Dep’t 1994), is also analogous. In that case, the infant plaintiff sought to hold the defendants liable for injuries that she suffered when a shard of sharp glass that the defendants had negligently left in her grandmother’s apartment broke through a plastic garbage bag that the infant plaintiff was holding. The Court upheld summary judgment for the defendants, because it was the child’s grandmother who had asked her to carry the bag and who had failed to warn the child of its contents: In view of the grandmother’s admission that after cleaning up the debris and asking plaintiff to carry the bag, she - 69 - failed to inform plaintiff that the opaque garbage bag concealed dangerous materials, the court properly found the grandmother’s actions to have so attenuated defendants’ negligence from the ultimate injury as to make it unreasonable to attribute to defendants any responsibility for the injury . . . . No reasonable jury could find that the grandmother’s failure to warn was a normal or foreseeable consequence of the conceded hazardous situation created by defendants . . . . Id. at 337. Rivera, Thompson, and Santiago illustrate that GOL § 3-111 does not excuse the inattention of a parent or a grandparent – in Rivera, to seek timely removal of a child’s orthopedic hardware; in Thompson, to replace the hatch over a defective burner; and in Santiago, to fail to warn of broken glass in a plastic bag – that breaks any causal nexus that could have existed between a defendant’s alleged negligence and the child’s adverse outcome as a matter of law, and does not preclude summary judgment for the defendant.5 5 Appellate decisions from other American jurisdictions that recognize the rule set forth in GOL § 3-111 are in accord. See, e.g., Grant v. District of Columbia, 597 A.2d 366, 369 (D.C. 1991) (“While it is true that the contributory negligence of a parent may not normally be imputed to a minor, it is nonetheless possible for a parent’s intervening negligence to be the proximate cause of the child’s injury.”) (internal citations omitted); Caroline v. Reicher, 269 Md. 125, 135, 304 A.2d 831, 837 (Md. 1973) (“[T]he contributory negligence of the parent cannot be imputed to minors so as to defeat their recovery, [but] the superceding [sic] negligence of the parent in failing to keep a proper lookout for the child’s wellbeing [can be] the actual proximate cause of the child’s injury.”) (emphasis in original) (quoting Davis v. Royal-Globe Ins. Cos., 223 So. 2d 912, 918-19 (La. App. 4th Cir. 1969), rev’d on other grounds, 257 La. 523, 242 So. 2d 839 (1970)); Akins v. County of Sonoma, 67 Cal. 2d 185, 199, 430 P.2d 57, 65 (1967) (noting that intervening parental conduct would disqualify “defendant’s negligence” from constituting “the ‘cause in fact’ of plaintiff’s injuries”). Even in states that do not impute a parent’s contributory negligence to his or her child, therefore, a parent’s actions or omissions nonetheless can break - 70 - In a personal injury action, the plaintiff – even a four-year-old child – may prevail only upon demonstrating that the defendant’s breach of a duty constituted the proximate cause of the plaintiff’s damages. If the Orsis’ GOL § 3- 111 argument were valid, a circumstance that breaks the chain of causation between a defendant’s conduct and an infant plaintiff’s injuries could never merit summary judgment and could never be introduced to the jury, solely because it constitutes an action or omission of the infant plaintiff’s parent(s). This is not so. Notwithstanding GOL § 3-111, a parent’s conduct or mere inattention – even though it was no fault of the child – can prevent an infant plaintiff from proving proximate cause, and justify summary judgment in the defendant’s favor. Though this may yield a harsh result, by which a child may “never be compensated for his injuries,” it is the law. Apps. Br. p. 3. As discussed in detail supra (at pp. 49-64), Lisa Orsi’s failure to bring Keith Orsi to Dr. Haralabatos’ office for scheduled follow-up appointments on April 22, April 29, and May 3, 20046 – against Dr. Haralabatos’ instruction to visit twice weekly until further notice, and without any effort by the Orsis to reschedule any chain of causation that would have linked the defendant’s conduct with the plaintiff’s actions, and thereby justify summary judgment in the defendant’s favor. 6 These were only the first in a series of follow-up appointments that Keith Orsi and his mother missed with Dr. Haralabatos, even after he was diagnosed with osteomyelitis. In 2004, they also failed to show for appointments that were scheduled for May 24, July 19, August 19, August 26, and September 16 (as evidenced by the notation “NOS” on computer printouts from Dr. Haralabatos’ office); and they cancelled appointments that had been scheduled for June 3, June 10, June 15, July 1, July 12, July 19, July 22, and July 27 (as evidenced by the notation “CAN” on those same printouts). (R. 856-59). - 71 - in advance or to find alternative transportation to her office – severed any chain of causation that may have linked Dr. Haralabatos’ treatment of Keith Orsi on April 15 or 19, 2004, with his subsequent development of osteomyelitis detected on May 4, 2004. Because the missed appointments deprived Dr. Haralabatos of the opportunity to monitor Keith Orsi’s condition for over two weeks, it would be unreasonable to hold Dr. Haralabatos responsible for a bone infection that first became manifest during that lapse in treatment. For that reason, the Orsis cannot demonstrate that any conduct of Dr. Haralabatos constituted the proximate cause of Keith Orsi’s osteomyelitis, and they cannot prevail on their medical malpractice claim as a matter of law. The cases cited by the Orsis in support of their GOL § 3-111 do not counsel otherwise. Several of them applied GOL § 3-111 to foreclose a cause of action or an affirmative defense that alleged a parent’s negligent supervision of his or her child. See, e.g., Wilson v. Westmoreland Farm, Inc., 989 F. Supp. 451 (E.D.N.Y. 1998); Banks by Banks v. United States, 969 F. Supp. 884 (S.D.N.Y. 1997); LaTorre v. Genesee Mgmt., Inc., 90 N.Y.2d 576 (1997); Holodook v. Spencer, 36 N.Y.2d 35 (1974); Kelly v. Metro. Ins. & Annuity Co., 82 A.D.3d 16 (1st Dep’t 2011); Cox v. Cheaib, 231 A.D.2d 841 (4th Dep’t 1996); DeMarco v. City of Albany, 17 A.D.2d 250 (3d Dep’t 1962). - 72 - Dr. Haralabatos and Stony Brook Orthopaedic Associates, by contrast, do not seek damages on account of any negligent supervision of Keith Orsi. They also do not allege negligent supervision as an affirmative defense that could mitigate their liability for medical malpractice. Dr. Haralabatos and Stony Brook Orthopaedic Associates contend instead that the Orsis cannot prevail upon their medical malpractice claim at all, because they have failed to raise a triable issue of fact concerning the element of proximate cause. Dr. Haralabatos’ conduct on April 15 and 19, 2004, does not constitute the proximate cause of Keith Orsi’s osteomyelitis, on account of Keith Orsi’s missed appointments with Dr. Haralabatos on April 22, April 29, and May 3, 2004, and the over two-week treatment gap that resulted. The cases that concern claims of negligent supervision, therefore, are distinguishable. So are the cases that held that GOL § 3-111 barred the adjudication of affirmative defenses such as contributory negligence, the failure to mitigate damages, and violations of statutory duties. See, e.g., M.F. by Flowers v. Delaney, 37 A.D.3d 1103 (4th Dep’t 2007); Boyd v. Trent, 297 A.D.2d 301 (2d Dep’t 2002); Pedersen v. Balzan, 117 A.D.2d 933 (3d Dep’t 1986); Van v. Clayburn, 21 A.D.2d 144 (1st Dep’t 1964); Corveddu v. Blumner, 10 A.D.2d 712 (2d Dep’t 1960); Cardona v. County of Albany, 188 Misc. 2d 440 (Sup. Ct. Albany County 2001); Rider v. Speaker, 180 Misc. 2d 999 (Sup. Ct. Sullivan County 1999). - 73 - Contrary to the Orsis’ assertion, the proximate cause argument made by Dr. Haralabatos and Stony Brook Orthopaedic Associates is not “tantamount to an affirmative defense.” Apps. Br. p. 54. “Inherent in the concept of an ‘affirmative defense’ is that it is the defendant’s burden to plead and prove” at trial. Connors, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C3018:22, p. 323 (2010). Accord, Connell v. Hayden, 83 A.D.2d 30, 39 (2d Dep’t 1981) (citing CPLR 3018(b)). In a personal injury action, by contrast, “[t]he burden of proof to establish causal negligence is upon the plaintiff.” Hirsh v. State, 8 N.Y.2d 125, 127 (1960). This burden does “not shift merely because the defendant label[s] its denial an ‘affirmative defense.’” Beece v. Guardian Life Ins. Co. of Am., 110 A.D.2d 865, 867 (2d Dep’t 1985). As such, the plaintiff in a medical malpractice action bears the “burden of establishing by competent evidence the causal relationship between the malpractice and” the plaintiff’s adverse outcome. Zuck v. Sierp, 169 A.D.2d 717, 718 (2d Dep’t 1991). The dismissal of affirmative defenses to a medical malpractice action, therefore, “in no way lessens the plaintiffs’ substantial burden of demonstrating by a preponderance of the evidence that the injuries of which [they complain] were proximately caused by the allegedly negligent medical treatment . . . .” Milashouskas v. Mercy Hosp., 64 A.D.2d 978, 979 (2d Dep’t 1978) (emphasis added). - 74 - Unlike an affirmative defense, for which the defendant bears the burden of proof, the proximate cause argument made by Dr. Haralabatos and Stony Brook Orthopaedic Associates demonstrates the plaintiffs’ inability to establish a triable issue of fact concerning a necessary element of medical malpractice. GOL § 3-111 does not allow the Orsis to survive summary judgment without establishing a triable issue of fact concerning proximate cause, and would not excuse the Orsis from satisfying their burden to prove proximate cause at trial. They could not, because Keith Orsi’s missed appointments with Dr. Haralabatos on April 22, April 29, and May 3, 2004, gave rise to a treatment lapse that broke the causal nexus between Dr. Haralabatos’ conduct on April 15 and 19, 2004, and Keith Orsi’s subsequent development of osteomyelitis. As such, this Court should affirm the Appellate Division’s award of summary judgment to Dr. Haralabatos and Stony Brook Orthopaedic Associates. - 75 - CONCLUSION For all of the foregoing reasons, Dr. Haralabatos and Stony Brook Orthopaedic Associates respectfully request that this Court affirm the Appellate Division’s award of summary judgment dismissing the Complaint, as an exercise of its appropriate discretion. Dated: Buffalo, New York October 12, 2012 PHILLIPS LYTLE LLP By: /s/ CRAIG R. BUCKI Eric M. Kraus Craig R. Bucki Attorneys for Respondents 3400 HSBC Center Buffalo, New York 14203 Telephone No.: (716) 847-8400 437 Madison Avenue, 34th Floor New York, New York 10022 Telephone No.: (212) 759-4888 Doc # 01-2601722.1