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
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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 negligencebased 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]).
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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;
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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