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

1193
CA 13-01524
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ.


GILBERT BAGLEY, INDIVIDUALLY AND ON BEHALF OF
ASHLEY D. BAGLEY, A MINOR, ALTON BAGLEY AND THE
ESTATE OF SANDRA BAGLEY, DECEASED,
PLAINTIFF-APPELLANT,

                    V                                MEMORANDUM AND ORDER

ROCHESTER GENERAL HOSPITAL, EDWARD ZINKIN, M.D.,
STEPHEN SILVER, M.D., PATRICK MARTIN, M.D., AND
MARTINE BACKENSTOSS, M.D., DEFENDANTS-RESPONDENTS.


BROWN & HUTCHINSON, ROCHESTER (MICHAEL COBBS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HIRSCH & TUBIOLO, P.C., ROCHESTER (BRYAN KORNFIELD OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS EDWARD ZINKIN, M.D. AND MARTINE BACKENSTOSS,
M.D.

HARRIS BEACH PLLC, PITTSFORD (SVETLANA K. IVY OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS ROCHESTER GENERAL HOSPITAL, STEPHEN SILVER,
M.D. AND PATRICK MARTIN M.D.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered May 31, 2013. The order granted the
motions of defendants for summary judgment and dismissed the
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this action alleging, inter alia, medical
malpractice and wrongful death, plaintiff appeals from an order
granting defendants’ motions for summary judgment dismissing the
complaint. We affirm. Plaintiff commenced this action seeking
damages for the death of his wife (decedent) while she was a patient
at defendant Rochester General Hospital (RGH). Decedent presented at
RGH’s renal dialysis unit with complaints of constipation, lower left
quadrant abdominal pain, and difficulty related to her home dialysis
treatment of her end-stage diabetic renal disease. Following
laboratory tests and various imaging studies, decedent was admitted to
the emergency department with a diagnosis of bacterial peritonitis
related to her status as a peritoneal dialysis patient. The following
day, decedent was evaluated as stable but her condition quickly
worsened, she became abruptly hypotensive and unresponsive, and died
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                                                         CA 13-01524

shortly thereafter. The immediate cause of death was cardiac arrest.
Postmortem examination revealed that decedent’s medical condition at
the time of her death included, inter alia, ruptured acute
appendicitis, pelvic abscesses, and diffuse mild acute peritonitis.
Plaintiff contends that defendants failed to timely and adequately
diagnose and treat decedent’s ruptured acute appendicitis, and that
defendants misdiagnosed decedent’s condition as peritonitis.

     Defendant Stephen Silver, M.D., was the physician primarily
responsible for treating decedent’s end-stage diabetic renal disease.
Defendant Patrick Martin, M.D., was at all relevant times the
attending emergency medicine physician involved in assessing and
treating decedent’s symptoms and complaints in the RGH emergency
department. The involvement in decedent’s care of defendant Edward
Zinkin, M.D., was limited to reviewing a pelvic/abdominal CT scan in
his capacity as an attending radiologist at RGH. The CT scan was
ordered by Dr. Martin and originally interpreted and reported by a
resident physician at RGH. The involvement in decedent’s care of
defendant Martine Backenstoss, M.D., was limited to reviewing certain
X ray films of decedent’s kidneys, ureter, and bladder in her capacity
as an attending radiologist at RGH.

     It is well settled that, on a motion for summary judgment, a
defendant in a medical malpractice action bears the initial burden of
establishing either that there was no deviation or departure from the
applicable standard of care or that any alleged departure did not
proximately cause the plaintiff’s injuries (see Swanson v Raju, 95
AD3d 1105, 1106). Importantly, not every instance of failed treatment
or diagnosis may be attributed to a hospital or physician’s failure to
exercise due care (see Nestorowich v Ricotta, 97 NY2d 393, 398;
Schrempf v State of New York, 66 NY2d 289, 295). Contrary to
plaintiff’s contention, the deposition testimony, affidavits, and
expert affidavits submitted by the physicians in support of their
motions “established that they exercised due care in treating
plaintiff’s decedent” (Moticik v Sisters Healthcare, 19 AD3d 1052,
1052-1053), and the physicians thus established their entitlement to
judgment as a matter of law (see Carthon v Buffalo Gen. Hosp.
Deaconess Skilled Nursing Facility Div., 83 AD3d 1404, 1405;
Selmensberger v Kaleida Health, 45 AD3d 1435, 1435-1436; see generally
Zuckerman v City of New York, 49 NY2d 557, 562). “The burden then
shifted to plaintiff[] to raise triable issues of fact by submitting a
physician’s affidavit both attesting to a departure from accepted
practice and containing the attesting [physician’s] opinion that the
defendant[s’] omissions or departures were a competent producing cause
of the injury” (O’Shea v Buffalo Med. Group, P.C., 64 AD3d 1140, 1141
[internal quotation marks omitted], appeal dismissed 13 NY3d 834). It
is well settled that “[g]eneral allegations of medical malpractice,
merely conclusory and unsupported by competent evidence tending to
establish the essential elements of medical malpractice, are
insufficient to defeat [a] defendant physician’s summary judgment
motion” (Alvarez v Prospect Hosp., 68 NY2d 320, 325). Thus, “[w]here
the [plaintiff’s] expert’s ultimate assertions are speculative or
unsupported by any evidentiary foundation, . . . [his or her] opinion
should be given no probative force and is insufficient to withstand
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                                                         CA 13-01524

summary judgment” (Diaz v New York Downtown Hosp., 99 NY2d 542, 544).

      We agree with the physicians that the affidavit of plaintiff’s
expert in internal medicine and cardiology is insufficient to defeat
their motions inasmuch as it is vague, conclusory, speculative, and
unsupported by the medical evidence in the record before us (see Wilk
v James, 108 AD3d 1140, 1143; DiGeronimo v Fuchs, 101 AD3d 933,
936-937). The affidavit of plaintiff’s radiology expert was likewise
“conclusory, speculative and without basis in the record” (DiGeronimo,
101 AD3d at 936). Thus, plaintiff failed to raise a triable issue of
fact, and Supreme Court properly granted the physicians’ motions
seeking summary judgment dismissing the medical malpractice and
wrongful death causes of action insofar as asserted against each of
them.

      In light of our determination, there is no viable cause of action
against any individual physician to serve as a predicate for imposing
vicarious liability on RGH under the theory of respondeat superior or
ostensible agency (see Magriz v St. Barnabas Hosp., 43 AD3d 331, 332-
333, lv denied 10 NY3d 790; Banks v United Hosp., 275 AD2d 623, 624),
and thus the court also properly granted RGH’s motion. Finally, we
reject plaintiff’s contention that the court erred in dismissing the
cause of action for negligence. While the office practices of
hospitals, physician medical groups, and their staff members may be
embraced by the ordinary negligence standard (see Yaniv v Taub, 256
AD2d 273, 274), we conclude that the challenged conduct at issue,
including the alleged lack of consultation between the medical
providers about decedent’s chronic underlying conditions, “bears a
substantial relationship to the rendition of medical treatment by a
licensed physician,” and the court thus properly determined that the
cause of action alleged medical malpractice, not ordinary negligence
(Weiner v Lenox Hill Hosp., 88 NY2d 784, 788, quoting Bleiler v
Bodnar, 65 NY2d 65, 72; see generally Doe v Lai-Yet Lam, 268 AD2d 206,
206).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
