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Merritt v. Saratoga Hospital10/31/2002
23, 1997. Edmond further averred, again with a reasonable degree of medical certainty, that the puncture wound that he observed occurred shortly before plaintiff presented to the Albany Medical Center and definitely after being seen by Jagoda.
In opposition to defendants' motion, plaintiff submitted the affidavit of a physician who averred that, based upon his review of the medical records, plaintiff suffered from significant soft tissue swelling and pain in her left forearm at the time she presented to the hospital. According to such expert, significant swelling usually is the first sign of possible compartment syndrome. The expert further averred that the amount of pain described in the nurse's notes was greater than one would expect with a bruise and that severe pain is yet another sign of compartment syndrome. Thus, plaintiff's expert was of the view that it was Jagoda's deviation from good and accepted medical practice in failing to properly recognize and treat plaintiff's compartment syndrome that was the proximate cause of her injuries, rather than some superseding cause.
Once a defendant satisfies his or her burden of demonstrating entitlement to summary judgment, as is the case here, "plaintiff must adequately rebut defendant's prima facie showing by establishing a departure from accepted medical practice, as well as a nexus between the alleged malpractice and plaintiff's injury " (Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916, 917, lv denied 95 NY2d 751). Here, a reading of Edmond's affidavit makes plain that regardless of any alleged failure to recognize and address symptoms of compartment syndrome, the offending injury at bar was a puncture wound sustained subsequent to plaintiff's visit to the emergency room of the hospital. That opinion was based, as it must be, upon record facts and not mere conclusory assertions. In that regard, plaintiff's only rebuttal evidence was the opinion of her expert that it was Jagoda's (*4)"deviation from good and accepted medical practice, in failing to properly recognize and treat plaintiff's compartment syndrome, which proximately caused the injury claimed, rather than from some superseding cause" (emphasis added). Notably, plaintiff's expert cites to no record evidence to support the opinion that plaintiff's injuries were not due to the superseding cause articulated by defendants' expert. Such conclusory statement is insufficient to rebut defendants' proof of a superceding cause of plaintiff's injury.
Mercure, J.P., Peters, Spain and Carpinello, JJ., concur.
ORDERED that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendants Saratoga Emergency Physicians P.C. and Albert Jagoda and complaint dismissed against them.
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