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Lynn G. v. Hugo6/27/2000
body's extremities, not the trunk. The truncal liposuction had been performed in February, with a touch-up in defendant's office in May. The possibility of abdominoplasty was noted as early as June and discussed in October, but that procedure was not scheduled until November, specifically because defendant wanted to wait an appropriate period of time to allow healing from the liposuction. Exactly nine months elapsed between the truncal liposuction and the abdominoplasty, and six months if counting from the office touch-up. It was thus irrelevant for plaintiffs' expert to suggest that Mrs. G had been exposed to greater complications of scarring and cosmetic deformity by reason of "combined" surgery, because such a "combination" of procedures never occurred.
4. "Unnecessary" Surgery
All of the surgical procedures undergone by Mrs. G were elective in nature. There is, again, no evidence in the record that Mrs. G was deceived or coerced into undergoing these procedures with an absence of adequate knowledge. Plaintiffs' general allegations are insufficient in the face of defendant's motion for summary judgment. In opposing such a motion, neither a conclusory allegation unsupported by competent evidence, nor rank speculation as to a better course of action, is an appropriate substitute for the level of admissible proof required to establish material issues of fact on the essential elements of medical malpractice (Alvarez v Prospect Hosp., 68 NY2d 320, 325; Tungsupong v Bronx-Lebanon Hosp. Ctr., 213 AD2d 236, 238; see also, Pan v Coburn, 95 AD2d 670). In conclusion, we are chided by the majority, in a final footnote, for creating a "misimpression" in noting the absence of any affidavit from Mrs. G, the implication being that defendant should be tarred with the same brush. This argument ignores the reality of how the record was built in this case. It was defendant who moved for summary dismissal based upon the equivocations, evasions and shortcomings in Mrs. G's deposition which we cite in detail. Manifestly, Mrs. G's deposition testimony left her case in a gravely weakened, if not terminal condition. Her failure to come forward on this motion with an affidavit explaining these deficiencies speaks volumes as to the lack of merit of her cause. In contrast, the actions of defendant are all established by admissible medical records and other competent proof. It would be counterproductive for him to submit a cumulative affidavit: anything favorable would be dismissed as self-serving, and the minutest disagreement with either of plaintiffs' experts or Mrs. G herself could be seized upon as providing a triable issue of fact. Wisely, defendant did not rise to the bait. Unfortunately for Mrs. G, her silence has failed to provide a triable issue of fact. We would reverse the order on appeal and grant defendant's motion for summary judgment dismissing the complaint.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 27, 2000
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