Clifford v White Plains Hosp. Med. Ctr., 2023 NY Slip Op 02937 [217 AD3d 405]
June 1, 2023
Appellate Division, First Department
[*1]
Michael Clifford et al., Respondents,
v
White Plains Hospital Medical Center, Also Known as White Plains Hospital, et al., Appellants, et al., Defendants.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Deirdre E. Tracey of counsel), for White Plains Hospital Medical Center and others, appellants.
Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for James Wyss, M.D. and another, appellants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondents.
Order, Supreme Court, New York (Erika M. Edwards, J.), entered on or about October 3, 2022, which, to the extent appealed, denied the summary judgment motions of defendants Hospital for Special Surgery (HHS) and James Wyss, M.D. (collectively the HHS defendants) and defendants White Plains Hospital Medical Center, Rafael Torres, M.D., and Dean Straff, M.D. (collectively the WPH defendants), unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment dismissing the complaint.
The HHS and WPH defendants each established entitlement to summary judgment with the affidavits of expert witnesses who averred that, in the face of no symptomology of infection or complaints relative to his neck, defendants were not required to include a cervical spinal abscess in their differential diagnosis of plaintiff Michael Clifford, and their purported failures to perform blood testing for infection or cervical spine imaging were not deviations from the standard of care ( see Cruz v New York City Health & Hosps. Corp ., 188 AD3d 592 [1st Dept 2020]; Perez v Riverdale Family Med. Practice, P.C. , 177 AD3d 554 [1st Dept 2019]). In opposition, plaintiff’s expert failed to raise an issue of fact. The assertion that an emergency lumbar spine MRI was required in the face of plaintiff’s low back pain and that the negative results of that exam would have led the doctors to further testing including a cervical MRI and blood work, thus diagnosing the cervical abscess, is hindsight that cannot be employed to avoid the fact that defendants were not required to investigate an otherwise unindicated condition ( see Rotante v New York Presbyt. Hosp.-N.Y. Weill Cornell Med. Ctr. , 175 AD3d 1142 [1st Dept 2019]; David v Hutchinson , 114 AD3d 412 [1st Dept 2014]; Rivera v Greenstein , 79 AD3d 564 [1st Dept 2010]).
Furthermore, as to the HHS defendants, plaintiff’s expert did not set forth that he had ever diagnosed or treated the back injuries and/or conditions at issue here, and was not qualified to opine on the standard of care relative to Dr. Wyss ( see Villani v Kings Harbor Multicare Ctr ., 190 AD3d 534 [1st Dept 2021], lv dismissed 37 NY3d 1085 [2021]; see also Daniele v Pain Mgt. Ctr. of Long Is. , 168 AD3d 672 [2d Dept 2019]). Concur—Kapnick, J.P., Oing, Gesmer, Singh, Shulman, JJ..