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

502
CA 16-01846
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


BRUCE T. CHILLIS, AS ADMINISTRATOR OF THE
ESTATE OF DONNIE M. HOLLAND, DECEASED,
PLAINTIFF-RESPONDENT-APPELLANT,


                    V                                MEMORANDUM AND ORDER

DOUGLAS A. BRUNDIN, JR., CRNA, DOUGLAS R.
SILLART, M.D., MAPLE-GATE ANESTHESIOLOGISTS, P.C.,
AND BRIAN E. MCGRATH, M.D.,
DEFENDANTS-APPELLANTS-RESPONDENTS.


CONNORS LLP, BUFFALO (JOHN T. LOSS OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS DOUGLAS A. BRUNDIN, JR., CRNA,
DOUGLAS R. SILLART, M.D., AND MAPLE-GATE ANESTHESIOLOGISTS, P.C.

FELDMAN KIEFFER, LLP, BUFFALO (JAMES E. EAGAN OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT BRIAN E. MCGRATH, M.D.

MARSH ZILLER LLP, BUFFALO (LINDA J. MARSH OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeals and cross appeal from an order of the Supreme Court, Erie
County (Donna M. Siwek, J.), entered September 28, 2016. The order
denied the respective motions of defendants for summary judgment
dismissing the complaint against them and the cross motion of
plaintiff for partial summary judgment on liability.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion of defendant
Brian E. McGrath, M.D. and dismissing the complaint against him, and
as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this medical malpractice and
wrongful death action seeking damages arising from the death of his
brother (decedent), a 29-year-old man who died during surgery
performed by defendants to remove a mass from his buttocks.

     Defendant Brian E. McGrath, M.D. (McGrath), who was decedent’s
orthopedic surgeon, contends that Supreme Court erred in denying his
motion for summary judgment dismissing the complaint against him. We
agree, and we therefore modify the order accordingly. “[O]n a motion
for summary judgment, a defendant in a medical malpractice action
bears the initial burden of establishing either that there was no
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                                                         CA 16-01846

deviation or departure from the applicable standard of care or that
any alleged departure did not proximately cause the [patient’s]
injuries” (Bagley v Rochester Gen. Hosp., 124 AD3d 1272, 1273).
McGrath met his burden by submitting a detailed affirmation
establishing that his care and treatment of decedent in recommending
and performing surgery was consistent with the accepted standard of
care (see Macaluso v Pilcher, 145 AD3d 1559, 1560; O’Shea v Buffalo
Med. Group, P.C., 64 AD3d 1140, 1140-1141, appeal dismissed 13 NY3d
834). The burden then shifted to plaintiff to raise an issue of fact
by submitting a physician’s affidavit establishing both a departure
from the accepted standard of care and proximate cause (see Bagley,
124 AD3d at 1273). Plaintiff failed to meet that burden inasmuch as
he submitted the affirmation of an anesthesiologist who failed to
establish how he was familiar with the accepted standard of care for
an orthopedic surgeon. Although a medical expert need not be a
specialist in a field to offer an opinion concerning the accepted
standards of care in that field, a physician offering an opinion
outside his or her particular field must lay a foundation to support
the reliability of that opinion (see Shectman v Wilson, 68 AD3d 848,
849-850; see also Diel v Bryan, 71 AD3d 1439, 1440). We thus reject
plaintiff’s contention on his cross appeal that the court erred in
denying that part of his cross motion for partial summary judgment on
liability against McGrath.

     We further conclude that the court properly denied the motion of
the remaining defendants, who were decedent’s anesthesia providers,
for summary judgment dismissing the complaint against them. Those
defendants met their initial burden inasmuch as they established a
lack of causation by submitting the certified report of an expert
pathologist, who opined that decedent died of a brain condition
unrelated to the surgery (see generally Manswell v Montefiore Med.
Ctr., 144 AD3d 564, 565), thus shifting the burden of proof to
plaintiff. In opposition, plaintiff’s expert anesthesiologist opined
that the remaining defendants deviated from the accepted standard of
care and that their deviation proximately caused decedent’s death.
Plaintiff’s expert stated that decedent sustained a “massive
intraoperative hemorrhage” and died of extreme blood loss on the
operating room table and, according to the relevant medical records,
decedent’s “blood pressure was unmeasurable as early as 11:40 [a.m.]”
and “no transfusion was begun until almost an hour later.”

     The remaining defendants contend that plaintiff’s expert failed
to establish that he was qualified to rebut the opinion of their
expert pathologist as to the cause of death (see generally Shectman,
68 AD3d at 849-850). It is well established, however, that “ ‘there
may be more than one proximate cause of an injury’ ” (Mazella v Beals,
27 NY3d 694, 706), and we conclude that, under the circumstances of
this case, plaintiff’s expert laid a proper foundation for his opinion
that blood loss was a proximate cause of decedent’s death. Thus,
plaintiff raised an issue of fact and the court properly denied the
remaining defendants’ motion on that ground. We likewise conclude
that the court properly denied that part of plaintiff’s cross motion
for partial summary judgment on liability against those defendants
(see generally Zuckerman v City of New York, 49 NY2d 557, 562).
                                 -3-                           502
                                                         CA 16-01846

     Contrary to the further contention of the remaining defendants,
they failed to meet their burden of establishing as a matter of law
that plaintiff sustained no damages and thus failed to establish their
entitlement to summary judgment dismissing the complaint against them
on that ground as well (see generally Winegrad v New York Univ. Med.
Ctr., 64 NY2d 851, 853). In a wrongful death action, damages are
limited to “fair and just compensation for the pecuniary injuries
resulting from the decedent’s death to the persons for whose benefit
the action is brought” (EPTL 5-4.3 [a]). “Pecuniary loss” refers to
“the economic value of the decedent to each distributee at the time
decedent died” (Huthmacher v Dunlop Tire Corp., 309 AD2d 1175, 1176;
see Milczarski v Walaszek, 108 AD3d 1190, 1190), including “loss of
income and financial support, loss of household services, loss of
parental guidance, as well as funeral expenses and medical expenses
incidental to death” (Milczarski, 108 AD3d at 1190). In the limited
excerpts of plaintiff’s deposition testimony that were submitted in
support of the motion, plaintiff testified that it was difficult to
estimate how much of decedent’s funeral expenses were paid by
plaintiff, and that decedent provided plaintiff with money during
decedent’s lifetime.




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
