        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1190
CA 15-00389
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


JESSICA KELLER, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CARLA LIBERATORE, M.D., CNY OBSTETRICS &
GYNECOLOGY, P.C., DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.


COTE & VANDYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

MARTIN, GANOTIS, BROWN, MOULD & CURRIE, P.C., DEWITT (DANIEL P. LARABY
OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Onondaga County (James P. Murphy, J.), entered April 24, 2014.
The order and judgment granted the motion of defendants Carla
Liberatore, M.D. and CNY Obstetrics & Gynecology, P.C., for summary
judgment and dismissed the complaint against those defendants.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously modified on the law by denying the motion in part and
reinstating the complaint against defendants Carla Liberatore, M.D.,
and CNY Obstetrics & Gynecology, P.C., insofar as the first, second,
and fourth causes of action assert a claim for medical malpractice or
negligence with respect to perineal massage, and as modified the order
and judgment is affirmed without costs.

     Memorandum: Plaintiff commenced this medical malpractice action
seeking damages for injuries she allegedly sustained as a result of
the treatment rendered by Carla Liberatore, M.D., and CNY Obstetrics &
Gynecology, P.C. (defendants), during the birth of plaintiff’s child.
Plaintiff appeals from an order and judgment granting defendants’
motion for summary judgment dismissing the complaint against them. We
agree with plaintiff that Supreme Court erred in granting the motion
with respect to her claim that defendants were negligent in failing to
perform a perineal massage, and we therefore modify the order and
judgment accordingly.

     We agree with plaintiff that defendants failed to meet their
initial burden on the motion with respect to the perineal massage
claim inasmuch as their own submissions raise a triable issue of fact
whether such a procedure was performed (see Chavis v Syracuse
Community Health Ctr., Inc., 96 AD3d 1489, 1490). In any event,
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                                                         CA 15-00389

plaintiff’s submissions also raised an issue of fact with respect to
that claim (see generally Zuckerman v City of New York, 49 NY2d 557,
562), and plaintiff’s expert averred that failure to perform a
perineal massage was a departure from the standard of care and a
proximate cause of plaintiff’s injury. Contrary to defendants’
contention that plaintiff’s expert opined only in general terms that a
perineal massage can reduce the incidence of tears, viewing the
evidence in the light most favorable to plaintiff (see Esposito v
Wright, 28 AD3d 1142, 1143), we conclude that plaintiff’s expert
averred with sufficient reference to this specific case that failure
to perform the massage contributed to the fourth-degree laceration
sustained by plaintiff.

     We reject plaintiff’s contention that the court erred in granting
the motion with respect to her claim that defendants were negligent in
failing to repair the laceration properly. Rather, we conclude that
defendants met their burden with respect to that claim and that
plaintiff failed to raise an issue of fact (see generally Zuckerman,
49 NY2d at 562). The affidavit of plaintiff’s expert submitted in
opposition to the motion was conclusory with respect to that claim
inasmuch as the expert failed to explain the accepted medical practice
from which defendants deviated in repairing the laceration and never
addressed the conclusion of defendants’ expert, who opined that the
problems plaintiff subsequently developed were merely complications
with the healing process rather than a result of an improper repair
(see Oestreich v Present, 50 AD3d 522, 523). The conclusions of
plaintiff’s expert that defendants failed to undertake proper
examinations before performing the repair were speculative and
unsupported by the record. The multiple examinations conducted by
defendants are detailed in plaintiff’s medical records, and we see no
evidentiary basis for the conclusion that defendants did not fully or
properly conduct them (see generally Diaz v New York Downtown Hosp.,
99 NY2d 542, 544). Inasmuch as plaintiff has failed to raise an issue
of fact whether the repair was improperly performed, we see no need to
address plaintiff’s further contention that the court erroneously
resolved a factual dispute with respect to her claim that Liberatore
committed malpractice by allegedly allowing a resident to perform the
repair.

     We reject plaintiff’s contention that the court erred in
dismissing those parts of the complaint premised on defendants’
alleged failure to obtain her informed consent before administering
the medication Pitocin to her. Contrary to plaintiff’s contention,
even in cases where the defendant fails to submit sufficient proof
with respect to the other elements of an informed consent cause of
action, the defendant may nevertheless establish entitlement to
summary judgment by demonstrating that any lack of informed consent
was not the proximate cause of the plaintiff’s injury (see Tsimbler v
Fell, 123 AD3d 1009, 1010-1011; Amodio v Wolpert, 52 AD3d 1078, 1080;
Mondo v Ellstein, 302 AD2d 437, 438). Here, defendants met their
initial burden inasmuch as the submission of their expert’s affidavit
and plaintiff’s hospital records established that plaintiff was
administered a conservative dosage of Pitocin that was well within
standard levels and did not cause her injury (see Gage v Dutkewych, 3
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                                                         CA 15-00389

AD3d 629, 630-631; see also Tsimbler, 123 AD3d at 1010-1011). In
opposition, plaintiff failed to raise an issue of fact (see generally
Zuckerman, 49 NY2d at 562). Plaintiff’s expert opined in a
speculative and conclusory manner that use of Pitocin is “associated
with” fourth-degree perineal tears because of the “excessive expulsive
forces” caused by that medication, but did not dispute or even address
the opinion of defendants’ expert that the amount of Pitocin
administered to plaintiff was proper, nor did plaintiff’s expert
controvert the conclusion of defendants’ expert that, based on the
medical records in this case, plaintiff experienced a well-controlled
delivery and that the dosage of Pitocin was not responsible for
causing plaintiff’s injury (see Gage, 3 AD3d at 631; see also
Tsimbler, 123 AD3d at 1010-1011). The court therefore properly
granted summary judgment dismissing the cause of action for lack of
informed consent, as well as the causes of action for medical
malpractice and negligence to the extent that they are premised on
defendants’ allegedly improper administration of Pitocin.




Entered:   December 31, 2015                    Frances E. Cafarell
                                                Clerk of the Court
