Doe v. Schwarzwald

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Galasso, J.), entered July 10, 2014, which granted the separate motions of the defendants Beth Corn and Mount Sinai Medical Center, Inc., the defendant Peter J. Baiocco, and the defendant Leonard A. Treihaft for summary judgment dismissing the complaint insofar as asserted against each of them.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendants Beth Corn and Mount Sinai Medical Center, Inc., for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with one bill of costs to the plaintiffs, payable by the defendants Beth Corn and Mount Sinai Medical Center, Inc., and one bill of costs to the defendants Leonard A. Treihaft and Peter J. Baiocco, payable by the plaintiffs.

The plaintiff John Doe (hereinafter Doe) was diagnosed with HIV/AIDS on January 29, 2010. Doe, and his wife suing derivatively, commenced this action to recover damages, inter alia, for medical malpractice against, among others, the de

The Supreme Court properly granted Baiocco’s motion for summary judgment dismissing the complaint insofar as asserted against him. Baiocco, a gastroenterologist, conducted an endoscopy after taking Doe’s history and learning that he had difficulty swallowing. Baiocco diagnosed Doe with candida esophagitis, for which he prescribed antifungal medication, and recommended that Doe follow up with an immunologist for complete immunodeficiency testing to determine the cause of his candida infection. Through the affirmation of his expert, a board certified internist with a subcertification in gastroenter-ology, Baiocco established his prima facie entitlement to judgment as a matter of law by showing that he fulfilled his duty of care by properly diagnosing and treating the specific condition for which Doe had consulted him, and by referring Doe to an immunologist for complete immunodeficiency testing, which was beyond the scope of Baiocco’s expertise as a gastroenterologist (see Covert v Walker, 82 AD3d 822 , 823 [2011]; Ellis v Eng, 70 AD3d 887 , 892 [2010]; Elias v Bash, 54 AD3d 354 , 357-358 [2008]; Mosezhnik v Berenstein, 33 AD3d 895 , 897 [2006]; Wasserman v Staten Is. Radiological Assoc., 2 AD3d 713 , 714 [2003]). In opposition, the plaintiffs failed to raise a triable issue of fact.

Similarly, Treihaft, an internist who first saw Doe in April of 2009 for a general checkup (at which time Doe had no specific physical complaints) and who did not see Doe again until November 13, 2009, established his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him. Through the expert affirmation of a board-certified internist and infectious disease specialist, Treihaft established that his care and treatment were appropriate and proper (see Perez v Edwards, 107 AD3d 565 , 566 [2013]; Burtman v Brown, 97 AD3d 156 , 161-162 [2012]; Micciola v Sacchi, 36 AD3d 869 , 871-872 [2007]; Wasserman v Staten Is. Radiological Assoc., 2 AD3d at 714 ). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted Treihaft’s motion for summary judgment dismissing the complaint insofar as asserted against him.

Chambers, J.P., Dickerson, Duffy and LaSalle, JJ., concur.