Tierney v Girardi

Tierney v Girardi 2011 NY Slip Op 05934 Decided on July 14, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 14, 2011
Gonzalez, P.J., Sweeny, Moskowitz, Renwick, Richter, JJ.
4755 101150/07

[*1]Ann Marie Tierney, as Executrix of the Estate of Angelina Trotta, Deceased, Plaintiff-Respondent,

v

Leonard Girardi, M.D., et al., Defendants, David B. Messinger, M.D., et al., Defendants-Appellants.



 
Vouté, Lohrfink, Magro & Collins, LLP, White Plains (Laura
K. Silverstein of counsel), for appellants.
Jayne L. Brayer, Bronx, for respondent.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered May 25, 2010, which, inter alia, denied defendants-appellants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this medical malpractice action, plaintiff, as executrix
of the estate of Angelina Trotta, alleges that defendants deviated from the standard of care by failing to administer an anticoagulant to the decedent upon her development of atrial fibrillation, following heart surgery (cardiac catheterization), causing her to suffer a stroke, which led to her disability, and death at the age of 81. Preliminarily, we reject defendant Dr. Messinger's argument that he was not obligated to care for decedent once he finished performing the cardiocatheterization on her. Dr. Messinger continued to owe a duty of care because he established a doctor-patient relationship with decedent, consulted with her, her family, and the cardiologist concerning her treatment following the cardiocatheterization, and continued to monitor her condition (see Cregan v Sachs, 65 AD3d 101, 110 [2009]). We find, however, that defendants demonstrated, through the affidavits of their experts, their entitlement to judgment as a matter of law dismissing the complaint on the ground that the treatment provided to decedent by defendant doctors comported with good and accepted medical practice. For instance, defendants' experts opined that it was appropriate to treat the atrial fibrillation with certain medications because anticoagulation would have presented an inordinate risk of bleeding, given, among other things, the decedent's prior medical condition.

The burden shifted to plaintiff to demonstrate the existence of a triable issue of fact. The IAS court properly excused plaintiff's procedural oversights, including the untimely filing of her expert's affirmation, where there was no showing that plaintiff acted in bad faith or that the late filing prejudiced defendants, and where the court permitted defendants to respond to the [*2]supplementary affidavit (see CPLR 2001; 2004; 3101[d][1][i]; St. Hilaire v White, 305 AD2d 209, 210 [2003]). Plaintiff's submissions raised a triable issue of fact as to whether defendants departed from the proper standard of care. Accordingly, defendants' motion for summary judgment was properly denied.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 14, 2011

DEPUTY CLERK