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

1153
CA 16-00602
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.


LAURA MACALUSO AND ARTHUR MACALUSO,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

WEBSTER H. PILCHER, M.D., PH.D.,
AND UNIVERSITY OF ROCHESTER MEDICAL CENTER
SCHOOL OF MEDICINE AND DENTISTRY,
DEFENDANTS-APPELLANTS.


WARD GREENBERG HELLER & REIDY LLP, ROCHESTER (JESSICA N. CLEMENTE OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

CHARLES A. HALL, ROCHESTER, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Matthew
A. Rosenbaum, J.), entered September 24, 2015. The order denied the
motion of defendants for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed.

     Memorandum: Plaintiffs commenced this medical malpractice action
alleging that, during surgery upon Laura Macaluso (plaintiff) to
remove a previously-implanted spinal cord stimulator (SCS), Webster H.
Pilcher, M.D., Ph.D. (defendant) negligently failed to remove part of
a synthetic tubular sleeve that had covered wires connecting
components of the SCS. On appeal, defendants contend that Supreme
Court erred in denying their motion for summary judgment dismissing
the complaint. We agree.

     In order to meet their initial burden on their motion for summary
judgment in this medical malpractice action, defendants were “required
to ‘present factual proof, generally consisting of affidavits,
deposition testimony and medical records, to rebut the claim of
malpractice by establishing that [they] complied with the accepted
standard of care or did not cause any injury to the patient’ ” (Webb v
Scanlon, 133 AD3d 1385, 1386). “A defendant physician may submit his
or her own affidavit to meet that burden, but that affidavit must be
detailed, specific and factual in nature . . . , and must address each
of the specific factual claims of negligence raised in [the]
plaintiff[s’] bill of particulars” (id. [internal quotation marks
omitted]).
                                 -2-                          1153
                                                         CA 16-00602

     Here, defendant submitted his own affidavit, along with an
accompanying medical record, in which he described in detail the
specific, limited objectives of the surgery, which included removing
the battery pack component of the SCS and the electrical leads along
plaintiff’s spinal cord, as well as removing the connecting wires that
ran under plaintiff’s skin by pulling them through a surgical opening
on her side. Defendant averred—consistent with his deposition
testimony that was also submitted with his affidavit—that he was aware
of the possibility that sleeves could be under plaintiff’s skin from
the original surgery, but that the surgical plan discussed with
plaintiff did not include expanding the procedure to encompass
searching for or removing any such items because to do so would have
unnecessarily increased the scope and risk of the surgery beyond any
possible benefit. Defendant noted, among other things, that any
sleeve previously implanted in plaintiff was inert and sterile, and
was designed and intended to remain inside her body. Defendant
conducted a routine postoperative visit during which plaintiff had no
complaints, and plaintiff never returned for further care after that
visit. Defendant explained that, inasmuch as he had completed the
surgery and his goal did not include removing every remaining fragment
of the SCS components, he would not have subjected plaintiff to an
X ray or any other tests unless she had exhibited symptoms such as
local inflammation or infection, which she had not shown. Defendant
averred that he successfully completed the surgery as planned and
that, in his professional medical opinion, the care he provided to
plaintiff in planning and conducting the surgery fully conformed with
the applicable standard of care. Based on the foregoing, we conclude
that defendants established their entitlement to judgment as a matter
of law (see id.).

     To raise an issue of fact to defeat defendants’ motion,
plaintiffs were required to submit “evidentiary facts or materials to
rebut the prima facie showing by the defendant physician” beyond mere
“[g]eneral allegations of medical malpractice” (Alvarez v Prospect
Hosp., 68 NY2d 320, 324-325). Plaintiffs failed to meet their burden
here. Without explaining the accepted medical practice from which
defendant deviated in performing the surgery, plaintiffs’ expert
merely averred in general, vague, and conclusory terms that it was his
opinion “that the non-removal of the tubing conforms to medical
negligence” (see Keller v Liberatore, 134 AD3d 1495, 1496). We
conclude that the affidavit of plaintiffs’ expert is entirely
“ ‘conclusory in nature and lacks any details[,] and thus is
insufficient to raise the existence of a triable factual issue
concerning medical malpractice’ ” (Moticik v Sisters Healthcare, 19
AD3d 1052, 1053).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
