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73 A.D.3d 204

Roques v. Noble

Appellate Division of the Supreme Court of the State of New York · decided 2010-04-20

Decided 2010-04-20

DeGrasse, J.

¶1(dissenting). Plaintiff’s decedent, Patrick *208Roques, Sr., died at the age of 59 on January 1, 2006. The autopsy report lists hypertensive and atherosclerotic cardiovascular disease as the cause of death and diabetes mellitus as a contributing condition. Plaintiffs wrongful death cause of action is based on allegations of medical malpractice by defendants Noble and Tabaddor, a radiologist and a neurosurgeon, respectively. Specifically, plaintiff alleges that on the basis of Noble’s misinterpretation of a CT scan and an MRI film, Tabad-dor performed two unnecessary and/or contraindicated procedures, a craniotomy and a cerebral stereotactic biopsy.

¶2Tabaddor and the New York Neuroscience Institute, with which Tabaddor was associated, moved for summary judgment on the ground that there was no causal relationship between decedent’s death and his treatment of the decedent. Noble and his medical group, defendant University Diagnostic Medical Imaging, similarly sought summary judgment on the ground that there is no causal connection between the decedent’s death and Noble’s conduct. Supreme Court granted both motions, finding the affirmation of plaintiffs medical expert insufficient to raise a triable issue of fact as to whether the decedent’s death was caused by the wrongful act, neglect or default of Tabaddor or Noble. I dissent because I disagree with the majority’s conclusion that the motions should have been denied.

¶3In order to establish a prima facie case of medical malpractice, a plaintiff must show that a defendant deviated from accepted medical practice and that the alleged deviation proximately caused injury (see Koeppel v Park, 228 AD2d 288, 289-290 [1996]). On a motion for summary judgment in a medical malpractice case, a defendant meets the initial burden by establishing that he or she did not deviate from accepted medical practice or proximately cause injury (Mattis v Keen, Zhao, 54 AD3d 610, 611 [2008]). In support of their motions, defendants submitted the affirmation of Dr. Richard Stein, a physician board certified in internal medicine and cardiovascular disease. Dr. Stein opined that the decedent’s death was not proximately caused by the surgical procedures performed by Dr. Tabaddor eight months earlier. I agree with the majority’s conclusion that Dr. Stein’s affirmation established defendants’ prima facie entitlement to summary judgment. Hence, the burden shifted to plaintiff to produce evidence in admissible form sufficient to establish the existence of a triable issue of fact (see Sisko v New York Hosp., 231 AD2d 420, 422 [1996], lv dismissed 89 NY2d 982 [1997]).

¶4*209In a medical malpractice action, once a defendant has established the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby, a plaintiff, in opposition, “must submit a physician’s affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor’s opinion that the defendant’s omissions or departures were a competent producing cause of the injury” (Keevan v Rifkin, 41 AD3d 661, 662 [2007] [internal quotation marks and citation omitted]).

¶5To meet her burden, plaintiff submitted the affirmation of a physician who opined that the operative procedures performed by Dr. Tabaddor and their sequelae caused and substantially contributed to the decedent’s hypertension, atherosclerotic cardiovascular disease and ultimate demise. Even if sufficient to raise a factual issue as to whether the surgical procedures were causally related to the decedent’s death, plaintiffs expert’s affirmation falls short of the proof required under Keevanbecause it does not set forth any alleged departures from good and accepted medical practice. Therefore, I would affirm the order entered below.

¶6Mazzarelli, J.P., and Catterson, J., concur with Román, J.; DeGrasse, J., dissents in a separate opinion.

¶7Order, Supreme Court, Bronx County, entered July 1, 2008, reversed, on the law, without costs, the motions denied and the cause of action reinstated.

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