Filed Papers: Claim; Verified Answer.
This claim was filed on April 25, 1997 and issue was joined. Claimant, Anthony
specified, claimant shall refer to
Anthony Passalacqua. alleges that the defendant negligently administered
radiation therapy and failed to obtain his informed consent to the radiation
therapy (Claim ¶¶ 5 and12). A review of Claimant's Bill of
Particulars (Bosworth Affidavit
, Exhibit C) discloses that Claimant
asserts he has been rendered blind in both eyes.
The following recitation of facts is based upon the Court's review of the
papers submitted in connection with the instant motion. In or about April 1994,
Claimant developed symptoms which led to a CT scan of the head and nasal cavity
being performed in August 1994. The scan revealed a large mass in the nasal
cavity and a biopsy was performed in September 1994. Regrettably, the mass was
an undifferentiated carcinoma. Following extensive surgery at Mt. Sinai
Hospital, in October 1994, Claimant was referred to Dr. Allen Meek, a radiation
oncologist at Stony Brook University Hospital (SBUH), a hospital facility
operated by the defendant. Dr. Meek developed a radiation therapy treatment
program for Claimant that was administered from November 8, 1994 through January
5, 1995. Prior to initiating treatment, Claimant executed a consent form
(Exhibit G) which included a specific reference to decreased vision as a long
term risk and or consequence. Four employees of the defendant are identified in
the medical records as being the radiation technicians who treated claimant from
time to time. Dr. Meek continued to follow Claimant through October 1995, when
Claimant made his first complaint of decreased vision. Dr. Meek ordered
additional tests on Claimant, including a CT Scan and an MRI. As a result of
the MRI findings, Claimant was referred to Dr. Patrick Sibony, a
neuro-ophthalmologist at SBUH. Dr. Sibony suggested, and Claimant underwent,
hyperbaric oxygen treatment in an attempt to control the worsening vision in his
left eye. Thereafter, in early 1996 Claimant was seen by another
ophthalmologist, Dr. Winterkorn while Claimant continued to see Dr. Meek through
June 1996. According to Dr. Winterkorn's report, Claimant was without light
perception in the left eye and the vision in the right eye had stabilized,
including central vision to read.
Summary judgment is the procedural equivalent of a trial (Andre v
Pomeroy, 35 NY2d 361). In order to grant summary judgment, a Court must
find that there are no material triable issues of fact. "To obtain summary
judgment it is necessary that the movant establish his cause of action or
defense 'sufficiently to warrant the court as a matter of law in directing
judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of
evidentiary proof in admissible form" (Friends of Animals v Associated Fur
Mfrs., 46 NY2d 1065, 1067). The role of the Court, therefore, on a motion
for summary judgment is not to resolve material issues of fact, but instead is
to determine whether any such issues exist (Sillman v Twentieth Century-Fox
Film Corp., 3 NY2d 395).
Once the movant establishes his or her prima facie entitlement to summary
judgment, the burden shifts to the opposing party to come forward with
admissible proof establishing the existence of a material issue of fact
requiring a trial (Leek v McGlone, 162 AD2d 504). Only the existence of
a material issue of fact, however, and not one based on conclusory or irrelevant
allegations, will be sufficient to defeat a motion for summary judgment
(Rotuba Extruders v Ceppos, 46 NY2d 223). Should the moving party fail
to make a prima facie showing of its entitlement to judgment as a matter of law,
the motion will be denied regardless of the sufficiency of the opposing papers
(Alvarez v Prospect Hosp., 68 NY2d 320).
Expert medical opinion is generally required in order to establish a prima
facie case of medical malpractice (see, Wells v State of New York, 228
AD2d 581; Armstrong v State of New York, 214 AD2d 812) and the Court
must accept Claimant's evidence as true and grant him every favorable inference.
(Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047).
Initially, the Court agrees with Defendant's assertion that Supreme Court's
grant of summary judgment to the individual doctors in a suit brought against
them by Claimant arising from the same set of facts as the instant Claim
(see, Exhibit E, Judgment and Decision; Passalacqua v Meek, et.
al, S. Ct., Suffolk County, Index No. 96-17003 [June 5, 200]) collaterally
estops claimant from relitigating the appropriateness of the treatment plan or
the directions of the doctors related thereto (see, Ryan v New York Telephone
Co., 62 NY2d 494; Pratt v State of New York, 181 Misc. 2d 488, 490).
The Supreme Court's decision necessarily precludes vicarious liability on the
part of SBUH for the actions of Dr. Meek which have been found not to constitute
malpractice (see, Hill v St. Clare's Hosp., 67 NY2d 72, 79;
Fiorentino v Wenger, 19 NY2d 407, 414).
In the Court's view, Defendant has established its entitlement to summary
judgment. The defendant has proffered the expert medical affidavit of Dr.
Bosworth, a licensed physician specializing in the field of radiation oncology.
Dr. Bosworth is also board certified in Therapeutic Radiology by the American
Board of Radiology (Bosworth Affidavit
, ¶ 1). Dr.
identified the medical records
(Exhibits F, H & I) and other documents he reviewed in reaching his
opinions. He opined that Dr. Meek conformed to good and accepted practice by
having Claimant sign a consent form which included specific references to the
potential risks of radiation therapy and the lack of reasonable alternatives
, ¶ 16). Dr. Bosworth further opined that at all
times the radiation technicians properly administered radiation therapy to the
Claimant and that during the administration of the therapy appropriate
modifications were made to the treatment plan and followed by the technicians.
He summarized his opinion by stating that at all times the employees of SBUH
treated claimant in accordance with good and accepted practices and that the
complications experienced by Claimant are a well known and accepted risk of
radiation therapy (Bosworth Affidavit
, ¶ 19). The foregoing
constitutes the requisite expert medical opinion evidence to establish a lack of
merit to this claim (see, Conti v Albany Medical Center Hosp
AD2d 772; Lynn G. v Hugo
, 96 NY2d 306, [informed consent]).
, which for purposes of this
motion the court will accept as an affidavit, is insufficient as a matter of law
to raise a triable issue of material fact. While claimant's observations have a
certain facial appeal, claimant, who by trade is a security officer and builder
(Exhibit C), is no more competent to render an opinion on issues regarding
radiation therapy, treatment and equipment, than the Court (see
Duffen v State of New York
, 245 AD2d 653). Here, the claimant's failure
to present any expert medical proof concerning the injuries he sustained, much
less any competent proof that there was a deviation from accepted medical
standards (see, Alvarez v Prospect Hosp
., 68 NY2d 320), requires the
granting of the motion.
The motion for summary judgment is granted in its entirety and Claim No. 96084
is dismissed. The Clerk is directed to enter judgment accordingly.