                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 20, 2014                   518531
________________________________

MARIA D. CONTO et al.,
                    Respondents,
      v

STEVEN M. LYNCH et al.,                     MEMORANDUM AND ORDER
                    Appellants,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   October 17, 2014

Before:   Stein, J.P., McCarthy, Garry and Devine, JJ.

                             __________


      Thorn Gershon Tymann & Bonanni, LLP, Albany (Mia D.
VanAuken of counsel), for appellants.

     Keith Schockmel, Albany, for respondents.

                             __________


Devine, J.

      Appeal from an   order of the Supreme Court (Clark, J.),
entered June 3, 2013   in Schenectady County, which denied a motion
by defendants Steven   M. Lynch and the Plastic Surgery Group, LLC
for summary judgment   dismissing the complaint against them.

      Defendant Steven M. Lynch performed a bilateral breast
reduction and lift procedure and bilateral brachioplasty on
plaintiff Maria D. Conto (hereinafter plaintiff) and, within days
of the procedure, plaintiff complained of complications to her
left breast, including, but not limited to, severe blistering and
skin loss to the areola. Less than a year later, Lynch replaced
the saline implant from plaintiff's left breast and, during the
same procedure, performed a "saddlebag" procedure in which excess
                              -2-                518531

tissue was excised from plaintiff's thighs. However, due to
plaintiff's continuing pain and other complications in her left
breast, Lynch removed the implant. Moreover, plaintiff
complained that the thigh excision had disfigured the appearance
of her thighs and, although Lynch scheduled an additional
corrective procedure, plaintiff did not return to him for further
medical treatment. Plaintiff and her husband, derivatively,
commenced this action alleging medical malpractice and lack of
informed consent against, among others, Lynch and defendant
Plastic Surgery Group, LLP (hereinafter collectively referred to
as defendants), the partnership with which Lynch was
professionally affiliated. Defendants moved for summary judgment
dismissing the complaint against them and Supreme Court denied
the motion in its entirety. Defendants now appeal.

      Defendants had the initial burden of demonstrating that
"there was no departure from accepted standards of practice or
that plaintiff was not injured thereby" (Derusha v Sellig, 92
AD3d 1193, 1193 [2012] [internal quotation marks and citations
omitted]; see Maki v Bassett Healthcare, 85 AD3d 1366, 1368
[2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed and
denied 18 NY3d 870 [2012]). In his detailed affidavit, Lynch
averred that, within a reasonable degree of medical certainty,
the preoperative consultations with plaintiff, the surgical
procedures performed on plaintiff and the follow-up care rendered
to her fully comported with acceptable standards of medical care.
Specifically, Lynch averred that he fully explained to plaintiff
the inherent risks of the procedures that he performed and
obtained signed informed consent documents prior to each surgery,
while denying that he pressured plaintiff to undergo any
particular surgical procedure. As to the initial breast surgery,
Lynch maintained that, within a reasonable degree of medical
certainty, he performed the procedure competently and denied that
the resulting infection was related to the implants. He further
asserted that plaintiff was given appropriate postoperative care
and treatment. Likewise, Lynch indicated that the manner in
which the excision was performed on plaintiff's thighs comported
with accepted standards of medical care and, further, that
plaintiff was aware that she might need additional liposuction
for "further contouring," but she ultimately failed to return to
his office for such treatment.
                              -3-                518531

      We find, as Supreme Court did, that defendants' evidence
established their prima facie entitlement to judgment as a matter
of law, thereby shifting the burden to plaintiffs "'to establish,
through competent expert medical opinion evidence, that there
exists a triable issue of fact as to whether there was a
deviation from the accepted standard of care'" that can be
causally connected to the injuries sustained by plaintiff
(Friedland v Vassar Bros. Med. Ctr., 119 AD3d 1183, 1187 [2014],
quoting Helfer v Chapin, 96 AD3d 1270, 1272 [2012]; see Martino v
Miller, 97 AD3d 1009, 1010 [2012]). Defendants now insist that
the complaint should have been dismissed as plaintiffs' medical
expert failed to address certain claims raised in the complaint
and, in addition, that the expert's opinion regarding defendants'
purported deviations from accepted standards of medical care was
wholly speculative and failed to demonstrate that defendants'
allegedly negligent treatment of plaintiff was the proximate
cause of her injuries.

      Plaintiffs' expert, Richard Marfuggi, a board-certified
plastic surgeon, opined in his affidavit that, with regard to
plaintiff's initial breast surgery, Lynch's choice to combine the
breast reduction procedure with the insertion of breast implants
did not comport with generally accepted medical standards and
that such combined procedure is reserved for "the rarest of
cases." Moreover, he stated that his review of all of the record
evidence, including plaintiff's medical records and defendants'
submissions, did not reveal any "functional reason" to
simultaneously perform the discrete procedures and, further, that
the likelihood of postoperative complications – such as the
infection that occurred following plaintiff's breast surgery – is
heightened where, as here, an implant is inserted during surgery.
As to the thigh excision procedure, Marfuggi opined that such
surgical approach deviated from generally accepted medical
standards and that plaintiff was a candidate for "liposuction to
reduce volume followed, as needed, by secondary skin contouring."
He further averred that the deformed appearance of plaintiff's
thighs was a "predictable result" of Lynch's use of the tissue
excision. Although Marfuggi's affidavit was particularly
succinct on the causation element, it was sufficient to raise a
material issue of fact regarding whether Lynch's treatment of
plaintiff deviated from recognized standards of care, thereby
                              -4-                518531

causing her injuries (see Longtemps v Oliva, 110 AD3d 1316, 1318
[2013]; Plourd v Sidoti, 69 AD3d 1038, 1039 [2010]; Carter v
Tana, 68 AD3d 1577, 1580 [2009]). Viewing the evidence in a
light favorable to plaintiffs, we determine that the denial of
defendants' summary judgment motion as to plaintiffs' medical
malpractice claims was proper (see Hauss v Community Care
Physicians, P.C., 119 AD3d 1037, 1039 [2014]; Doucett v
Strominger, 112 AD3d 1030, 1033 [2013]; Dugan v Troy Pediatrics,
LLP, 105 AD3d 1188, 1192 [2013]).

      We reach the same conclusion regarding plaintiffs' lack of
informed consent cause of action. The proof in the record
adduced by defendants meets their initial burden of demonstrating
that they fully disclosed "the risks, benefits and alternatives"
of plaintiff's surgeries that would have been explored by a
reasonable plastic surgeon under the same circumstances, or that
a similarly situated patient, "fully informed, would have elected
. . . to undergo the procedure or treatment" (Rivera v Albany
Med. Ctr. Hosp., 119 AD3d 1135, 1138 [2014] [internal quotation
marks and citations omitted]; see Schilling v Ellis Hosp., 75
AD3d 1044, 1045 [2010]). Plaintiff, however, vehemently denies
that Lynch warned her of the possible complications that she
experienced, averring that, despite voicing her opposition to
breast implants, Lynch "was insistent that implants were
necessary," ultimately compelling her to reluctantly agree to the
procedure. Plaintiff indicates that, although she signed the
consent forms that were given to her prior to the procedures,
Lynch failed to fully explain the risk of the complications that
she sustained and that, had she been made aware of the
possibility that she would lose a portion of her nipple, she
would not have consented to the initial breast procedure. As for
the thigh excision, plaintiff expressly refutes the entry that
Lynch made in her medical records stating that she and Lynch had
"discussed fully" the potential consequences of the surgery and
insists that Lynch told her that excision was the "only correct
procedure" to pursue. Marfuggi, meanwhile, opined that a person
in plaintiff's position who was fully informed of the potential
consequences of the thigh excision performed by Lynch would not
have gone forward with it and, further, that Lynch's conduct
conflicted with generally accepted standards of medical care,
which require the surgeon to provide the patient with "all
                              -5-                  518531

relevant alternatives." Finally, Marfuggi concluded that Lynch's
failure to ensure that plaintiff's consent to the surgeries was
truly informed was a dereliction of applicable professional
standards of care. As plaintiffs' evidence raised triable issues
of fact as to whether there was a lack of informed consent to the
procedures described herein (see Rivera v Albany Med. Ctr. Hosp.,
119 AD3d at 1138), the denial of defendants' motion for summary
judgment was appropriate.

     Stein, J.P., McCarthy and Garry, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
