                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 10, 2014                     517912
________________________________

RAUL RIVERA,
                    Respondent,
     v                                      MEMORANDUM AND ORDER

ALBANY MEDICAL CENTER HOSPITAL
   et al.,
                    Appellants.
________________________________


Calendar Date:   May 27, 2014

Before:   Lahtinen, J.P., McCarthy, Garry, Lynch and Clark, JJ.

                             __________


      Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert
A. Rausch of counsel), for appellants.

      Englert, Coffey, McHugh & Fantauzzi, LLP, Schenectady
(Gregory E. Schaaf of counsel), for respondent.

                             __________


McCarthy, J.

      Appeal from an order of the Supreme Court (J. Sise, J.),
entered October 8, 2013 in Montgomery County, which denied
defendants' motion for summary judgment dismissing the complaint.

      Plaintiff was diagnosed with Hirschsprung's disease, a
condition that affects the nerve cells embedded in the wall of
the rectum and which can cause severe constipation. After two
unsuccessful medical procedures, defendant underwent an open
proctosigmoidectomy – the goal of which was to remove the
diseased portion of plaintiff's rectum – performed by a physician
at defendants' medical facility. Plaintiff thereafter commenced
this action alleging medical malpractice and lack of informed
consent, based upon, among other things, the claim that he now
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suffers permanent erectile dysfunction as a result of the
surgery. Following discovery, defendants moved for summary
judgment dismissing both causes of action. Supreme Court denied
the motion in its entirety, prompting this appeal.

      As an initial matter, defendants' submission of a medical
expert's affidavit with the expert's name redacted is incompetent
evidence to support their summary judgment motion. In order to
establish a prima facie entitlement to judgment as a matter of
law, defendants were required to "tender[] sufficient, competent,
admissible evidence demonstrating the absence of any genuine
issue of fact" (Toomey v Adirondack Surgical Assoc., 280 AD2d
754, 754 [2001]). Among other submissions, defendants provided
an affidavit from a medical expert whose identity was redacted
and who opined on the appropriateness of plaintiff's medical care
and the adequacy of the warnings given to plaintiff. Defendants
also submitted an unredacted version of the affidavit for Supreme
Court's in camera review. Because defendants were the movants
for summary judgment, their submission of an anonymous expert
affidavit was incompetent evidence not proper for consideration
upon the motion (see Sellino v Kirtane, 73 AD3d 728, 728 [2010];
Mackey v Southampton Hosp., 264 AD2d 410, 410 [1999]; Henson v
Winthrop Univ. Hosp., 249 AD2d 510, 510 [1998]; Marano v Mercy
Hosp., 241 AD2d 48, 51 [1998]; see generally Morrison v Hindley,
221 AD2d 691, 693 [1995] [leaving unanswered the question of
whether the court could properly consider such evidence if signed
affidavits were provided for in camera review]).

      While the Legislature has allowed for some protection from
disclosure of the identities of medical experts during "[t]rial
preparation" (CPLR 3101 [d] [1] [i]), and, consistent with this
intention, courts have found it appropriate to allow nonmovants
in the summary judgment context to also withhold experts'
identities from their adversaries upon the reasoning that such
parties did not choose to abandon the disclosure protections
provided during trial preparation (see Cerny v Williams, 32 AD3d
881, 886 [2006]; McCarty v Community Hosp. of Glen Cove, 203 AD2d
432, 433 [1994]), the Legislature has shown no broad intention of
protecting experts from accountability at the point where their
opinions are employed for the purpose of judicially resolving a
case or a cause of action. Further, we see no compelling reason
                              -3-                517912

to allow for such anonymity that would outweigh the benefit that
accountability provides in promoting candor (see generally Marano
v Mercy Hosp., 241 AD2d at 51-52). Requiring a movant to reveal
an expert's identity in such circumstances would allow a
nonmovant to meaningfully pursue information such as whether that
expert has ever espoused a contradictory opinion, whether the
individual is actually a recognized expert and whether that
individual has been discredited in the relevant field prior to
any possible resolution of the case on the motion (see id. at
51). Further, any expert who anticipates a future opportunity to
espouse a contradictory opinion would be on notice that public
record could be used to hold him or her to account for any
unwarranted discrepancy between such opinions.1 For these
reasons, we will not consider the incompetent affidavit of
defendants' medical expert.

      Turning to the evidence properly before this Court,
defendants failed to meet their initial burden establishing that
they were entitled to summary judgment dismissing the negligence-
based medical malpractice cause of action.2 To meet this initial
burden, defendants were required to establish either that there
was no departure from accepted standards of practice in


    1
        A medical expert supporting a nonmovant in the summary
judgment context could not reasonably believe that any temporary
anonymity would keep his or her identity from the public record.
A nonmovant presumably seeks a trial, where expert witnesses'
identities would be revealed.
    2
        Although plaintiff's counsel, at argument, made
concessions that plaintiff did not plan on proceeding to trial on
this cause of action and did not have an expert witness who would
support the cause of action, we do not believe that the record
provides sufficiently clear evidence that plaintiff either
requested or consented to a stipulation of discontinuance of that
cause of action that would allow this Court to make such an order
(see CPLR 3217 [b]; see generally Shamley v ITT Corp., 67 NY2d
910, 911-912 [1986]).
                              -4-                517912

plaintiff's treatment or that any such deviation did not injure
plaintiff (see Cole v Champlain Val. Physicians' Hosp. Med. Ctr.,
116 AD3d 1283, 1285 [2014]; Longtemps v Oliva, 110 AD3d 1316,
1317 [2013]). A physician's sworn statements can be sufficient
to meet this initial burden, provided that they are "detailed,
specific and factual in nature" (Toomey v Adirondack Surgical
Assoc., 280 AD2d at 755; accord Amodio v Wolpert, 52 AD3d 1078,
1079 [2008]). Defendants' competent submissions, including,
among other things, medical records and deposition testimony from
the physician who treated plaintiff, fail to establish either
that the physician provided care that did not depart from
accepted standards of practice or that the care did not injure
plaintiff, as the testimony cannot reasonably be interpreted to
specifically reference the appropriate standard of care in these
circumstances or to otherwise even assert that plaintiff's injury
was not caused by his actual care. Accordingly, Supreme Court
properly denied defendants' motion for summary judgment on the
negligence-based medical malpractice cause of action.

      Further, defendants were not entitled to summary judgment
on the cause of action for lack of informed consent. In order to
meet their burden on this cause of action, defendants were
required to establish either that the practitioner "disclose[d]
the risks, benefits and alternatives to the procedure or
treatment that a reasonable practitioner would have disclosed" or
that "a reasonable person in the plaintiff's position, fully
informed, would have elected . . . to undergo the procedure or
treatment" (Orphan v Pilnik, 15 NY3d 907, 908 [2010]; see Public
Health Law § 2805-d [1], [3]). The testimony provided by the
physician who treated plaintiff did not specifically establish
either that the risks, benefits and alternatives to the surgery
that he claimed to have explained to plaintiff were also the ones
that a reasonable practitioner would have disclosed or that a
reasonable person, so informed, would have elected for the
surgery rather than the other options described in the testimony,
one of which included "leav[ing] everything alone." In any
event, even if defendants had met their burden on either of these
issues, plaintiff raised material issues of fact as to each.
Contrary to defendants' contention, CPLR 4401-a, regarding
plaintiff's burden of providing expert testimony at trial to
support his cause of action, does not govern our review here;
                              -5-                  517912

inasmuch as defendants' submissions conceded that a warning was
necessary regarding the potential injuries to nerve cells that
controlled the intimate function of the penis and asserted that
such a warning was given to plaintiff, plaintiff's contradictory
testimony that no such warning was ever given to him was
sufficient to demonstrate a triable question of fact on that
issue (see Snyder v Simon, 49 AD3d 954, 956-957 [2008]).
Further, plaintiff's testimony that he would not have chosen to
have the surgery had he been properly informed of the risk of
sexual dysfunction is sufficient to raise a triable issue of fact
as to whether a fully informed reasonable person would have
elected for the surgery (see Schilling v Ellis Hosp., 75 AD3d
1044, 1046 [2010]; Santilli v CHP, Inc., 274 AD2d 905, 907-908
[2000]). Accordingly, Supreme Court also properly denied
defendants' motion for summary judgment on the lack of informed
consent cause of action.

     Lahtinen, J.P., Garry, Lynch and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
