

Concepcion v City of New York (2016 NY Slip Op 04108)





Concepcion v City of New York


2016 NY Slip Op 04108


Decided on May 26, 2016


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 May 26, 2016

Friedman, J.P., Acosta, Saxe, Gische, Webber, JJ.


1278 16298/07 42091/08

[*1]Rafael Concepcion, Deceased, by Administrator, Neil Concepcion, Plaintiff-Respondent, —
vThe City of New York, et al., Defendants, Michael Weitzen, D.O., Defendant-Appellant. 
The City of New York, et al., Third-Party Plaintiffs-Respondents, 
St. Barnabas Hospital, et al., Third-Party Defendants, Michael Weitzen, D.O., Third Party Defendant-Appellant.


Feldman, Kleidman, Coffey, Sappe & Regenbaum, L.L.P., Fishkill (Wayne M. Rubin of counsel), for appellant.
Dansker & Aspromonte Associates, New York (Jason C. Molesso of counsel), for Neil Concepcion, respondent.
Zachary W. Carter, Corporation Counsel, New York (Michael Pastor of counsel), for the City of New York and James F. Williams, respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered October 20, 2015, which, insofar as appealed from as limited by the briefs, denied the motion of defendant/third-party defendant Michael Weitzen, D.O., for summary judgment dismissing the complaint, third-party complaint and all cross claims as against him, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff's decedent's leg was run over by a truck while he was working as a sanitation worker. The decedent was taken to the emergency room at defendant St. Barnabas Hospital, and was treated by Dr. Weitzen, the on-call trauma surgeon. After consulting with the on-call [*2]vascular surgeon, Weitzen ordered an angiogram to determine the site of the internal bleeding. Following a five-hour surgery by the vascular surgeon to bypass the damaged artery, decedent developed abdominal compartment syndrome, and despite an emergency laparotomy to relieve the pressure on the decedent's internal organs, he went into cardiac arrest and died.
The record demonstrates that in opposition to Weitzen's prima facie showing that his treatment of the decedent was within the accepted standard of medical care, both plaintiff and the City impermissibly opposed Weitzen's motion based on theories of liability not previously set forth in their pleadings or bills of particulars (see Abalola v Flower Hosp., 44 AD3d 522 [1st Dept 2007]). The parties' reliance on generalized boilerplate allegations, and bills of particulars that were generally directed at all defendants, is misplaced (see Suits v Wyckoff Heights Med. Ctr., 84 AD3d 487, 489 [1st Dept 2011]; see also Miccarelli v Fleiss, 219 AD2d 469,470 [1st Dept 1995]).
In any event, the opinions of the City's and plaintiff's experts on causation are speculative and unsupported by the record, particularly where the, City's expert anesthesiologist averred that the decedent's syndrome was caused by the negligent and extreme over administration of intravenous liquids during the bypass surgery due to insufficient or incorrect calculations concerning the decedent's rate of fluid loss. Although both plaintiff's and the City's expert surgeons averred that a delay in beginning the surgery caused the compartment syndrome by requiring additional liquids during surgery, neither provided any scientific basis for that assertion (see Carrera v Mount Sinai Hosp., 294 AD2d 154 [1st Dept 2002]). Nor did plaintiff's expert explain how
administering red blood cells earlier would have ultimately led to less fluids being administered.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 26, 2016
CLERK


