Calendar Date: May 31, 2018Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Rumsey, JJ.__________Rheingold Giuffra Ruffo & Plotkin, LLP, New York City(Sherri L. Plotkin of counsel), for appellant.Carter, Conboy, Case, Blackmore, Maloney & Laird, PC,Albany (Edward D. Laird Jr. of counsel), for respondents.__________Aarons, J.Appeal from an order of the Supreme Court (Ferreira, J.),entered July 17, 2017 in Albany County, which granted a motion bydefendants Kenneth D. Riley and Mary Imogene Bassett Hospital forsummary judgment dismissing the complaint against them.In January 2011, Mary Ann Humphrey (hereinafter decedent)had a Mirena intrauterine device (hereinafter IUD) inserted intoher uterus by her gynecologist. On three occasions approximatelyone year later, decedent presented to defendant Kenneth D. Riley,her primary care physician, with complaints of a variety ofsymptoms. On December 23, 2011, at the third visit, decedent’ssymptoms included nausea, vomiting, diarrhea and a fever and,following a physical examination, Riley’s impression was thatdecedent had a “[f]lu-like syndrome.” He prescribed medicationto decedent and instructed her to notify him immediately or go tothe emergency room if her condition changed or worsened. OnDecember 26, 2011, decedent went to the emergency room at St.Mary’s Hospital with symptoms of toxic shock syndrome(hereinafter TSS). She was subsequently airlifted to AlbanyMedical Center where, following a computerized tomography scanand vaginal examination, her IUD was removed and cultured. Adecision to attempt surgical evaluation of a possible pelvicabscess was made and, during the administration of anesthesia,decedent went into cardiac arrest and died. Her autopsy reportand discharge summary indicated that the cause of decedent’sdeath was TSS and multiorgan failure caused by a Group Astreptococcal infection.Plaintiff, decedent’s spouse, commenced this actionasserting, among other things, claims for medical malpractice andwrongful death against Riley and defendant Mary Imogene BassettHospital, his employer, among others. Riley and Mary ImogeneBassett Hospital (hereinafter collectively referred to asdefendants) joined issue and then moved for summary judgmentdismissing the complaint. Supreme Court granted the motion, andplaintiff now appeals.1Defendants met their initial burden of demonstrating thatRiley did not depart from accepted standards of medical practicein treating decedent by submitting, among other things,plaintiff’s and Riley’s deposition testimony, decedent’s medicalrecords and an expert affidavit by physician Paul Auwaerter (seeButler v Cayuga Med. Ctr., 158 AD3d 868, 869-874 [2018]; D’Orta vMargaretville Mem. Hosp., 154 AD3d 1229, 1231-1232 [2017]; Webb vAlbany Med. Ctr., 151 AD3d 1435, 1436-1437 [2017]). Based on hisreview of the records, Auwaerter opined that decedent’s symptomsat her presentations to Riley did not warrant a gynecologicalexamination or removal of her IUD. According to Auwaerter,decedent’s symptoms were “ostensibly demonstrative of a viralprocess or flu” and Riley’s treatment was in accordance with theapplicable standard of care. With respect to decedent’s visit onDecember 23, 2011, Auwaerter noted that decedent experiencedabdominal pain, but opined that Riley reasonably attributed it todecedent’s episodes of diarrhea and vomiting. He also noted thatdecedent had “no significant rash” at that time and that aninsignificant rash is consistent with a viral process. Auwaerterfurther opined that, because decedent did not present to Rileywith focal guarding, rebound, mass or rigidity of her abdomen,and bowel sounds were present, there was no reason for Riley tosuspect any acute injury or infection and that further testingwas not required. Auwaerter also concluded, to a reasonabledegree of medical certainty, that decedent did not meet thediagnostic criteria for TSS during any of her visits to Riley,and that Riley’s December 23, 2011 diagnosis of flu-like symptomswas appropriate based on decedent’s symptoms and his examinationof her.As defendants met their initial burden of establishingtheir right to summary judgment, the burden shifted to plaintiffto raise a triable issue of fact by submitting a competent expertmedical opinion that was neither conclusory nor speculative (seeButler v Cayuga Med. Ctr., 158 AD3d at 874; D’Orta vMargaretville Mem. Hosp., 154 AD3d at 1233; Longtemps v Olivia,110 AD3d 1316, 1319 [2013]; Carter v Tana, 68 AD3d 1577, 1580[2009]). To that end, plaintiff primarily relied on the redactedexpert affidavit of a physician who is licensed to practicemedicine in Rhode Island and board-certified in family medicine.Plaintiff’s expert averred that, in light of decedent’s symptoms,Riley departed from accepted practice on December 23, 2011 bydiagnosing her with the flu and by failing to perform a pelvicexamination. The expert opined that abdominal pain is notgenerally considered to be a symptom of the flu and thatcomplaints of abdominal pain, nausea, vomiting, fever anddiarrhea in female patients mandate that a pelvic examination beperformed. These opinions, however, were conclusory, and theexpert failed to provide any factual basis for his opinions (seeButler v Cayuga Med. Ctr., 158 AD3d at 875; Gallagher v CayugaMed. Ctr., 151 AD3d 1349, 1354 [2017]). Furthermore, althoughthe expert opined that a pelvic examination on December 23, 2011would have revealed decedent’s pelvic infection at a time when itcould have been effectively treated, the expert never explainedhow or why, if a pelvic examination had been performed, materialinformation would have been revealed that would have altered thediagnosis rendered (see Gallagher v Cayuga Med. Ctr., 151 AD3d at1354; Longstemps v Olivia, 110 AD3d at 1319). Moreover,plaintiff’s expert failed to address Auwaerter’s opinions thatRiley reasonably relied on decedent’s maintenance of hergynecological care with her gynecologist, that an insignificantrash is consistent with a viral process or that, althoughdecedent’s abdomen was tender, there was no focal guarding,rebound, mass, rigidity or lack of bowel sounds so as to suggestan acute injury or infection (see Keun Young Kim v Lenox HillHosp., 156 AD3d 774, 775 [2017]; Tsitrin v New York CommunityHosp., 154 AD3d 994, 996-997 [2017]). Because we find that theaffidavit of plaintiff’s expert was speculative and conclusory,it was insufficient to raise a triable issue of fact (see Butlerv Cayuga Med. Ctr., 158 AD3d 868 at 876; Keun Young Kim v LenoxHill Hosp., 156 AD3d at 775; Tsitrin v New York Community Hosp.,154 AD3d at 996; Gallagher v Cayuga Med. Ctr., 151 AD3d at 1354-1355). Accordingly, Supreme Court properly granted defendants’motion for summary judgment dismissing the complaint againstthem. Plaintiff’s remaining contentions have been examined andfound to lack merit.Garry, P.J., Egan Jr., Mulvey and Rumsey, JJ., concur.ORDERED that the order is affirmed, with costs.
