The following papers numbered 1 to 5 read herein: Papers Numbered Notice of Motion 1, 2 Affirmation in Opposition 3 Reply 4, 5 DECISION AND ORDER Upon the foregoing papers, Defendants, Beth Israel Medical Center (BIMC), Seymour Edelstein, M.D., and Guldeniz Doganay, M.D. move for Orders, pursuant to CPLR §3212, granting them Summary Judgment. Plaintiff opposes Defendants motions. Background Plaintiffs commenced this medical malpractice action against Defendants claiming that Defendants failure to advise Theodore Maisano that he had a MRSA infection prevented him from having his family examined and led to a delayed diagnosis of infant-Plaintiff’s infection. This action was commenced on or about February 19, 2010 by service of a Summons and Complaint and issue was joined by all Defendants. Plaintiffs served Bills of Particulars on or about October 7, 2010. Plaintiffs then served Amended Bills of Particulars on or about January 31, 2014. All parties and Mr. Maisano’s wife were deposed. Plaintiffs then discontinued this action against Dr. Richard D. Cofsky. On or about August 15, 2010, Mr. Maisano, father of infant-Plaintiff, Gianna, injured his left-hand while working. On August 19, 2007, Mr. Maisano treated with his primary care physician, Dr. Sidney Plawes, for an apparent insect bite on his left-hand ring finger. On August 20, 2007, Mr. Maisano presented to BIMC with complaints of an infection to his left ring finger. He was triaged and then examined by co-Defendant Dr. Doganay. Dr. Doganay diagnosed Mr. Maisono with cellulitis, started him on an intravenous antibiotic, and admitted him for further treatment. Mr. Maisano was kept overnight. On August 21, 2007, Dr. Edelstein observed an abscess on Mr. Maisano’s left ring finger with a slightly blackened small area likely caused by an insect bite. Dr. Edelstein then performed an incision and drainage and the aspirated fluid was submitted for culture. On the same day, Dr. Cofsky performed an infectious disease consult. Dr. Cofsky’s impression was that Mr. Maisano had a soft-tissue infection that was drained and that there was no sign of anaerobic or aerobic infection. Dr. Cofsky called for Mr. Maisano to be treated with the antibiotic Cefazolon which was to be changed to oral Keflex at discharge. That evening, the preliminary culture report showed no organisms were present. On August 22, 2007, Mr. Maisano was discharged with instructions to take Keflex four times a day and Tylenol for pain. Mr. Maisano was instructed to follow-up with Dr. Edelstein and that either Dr. Plawes or Dr. Edelstein would advise Mr. Maisano of his culture results. On August 23, 2007, Mr. Maisano saw Dr. David Edelstein, Dr. Edelstein’s son. Mr. Maisano’s wound appeared clean and dry with the condition of the abscess significantly improved. The culture results from the incision and drainage were not available at the time of this visit. Mr. Maisano was then advised to return for a follow-up appointment on August 30, 2007 with Dr. Edelstein. Mr. Maisano did not appear for his appointment on August 30th. Mr. Maisano did not appear for his follow-up appointment until September 15, 2007 and was seen by Dr. Plawes. On September 18, 2007, Mr. Maisano’s infant daughter, Gianna, became ill. Gianna was seen by her pediatricians on September 18th, 19th, and 20th. On the September 20th visit, Gianna had signs and symptoms of severe infection and was sent to Presbyterian Hospital where she was admitted. On September 22, 2007, cultures of Gianna were taken at the hospital and indicated she had MRSA. Mr. Maisano’s culture results were still unknown. Mr. Maisano was not aware that he had MRSA until Gianna’s admission to Presbyterian Hospital when the infectious disease doctor saw his medical report. A nasal swab was then taken from Mr. Maisano on September 23, 20017 at Presbyterian Hospital. This culture demonstrated that Mr. Maisano had MRSA. However, this organism differed from the organism tested on August 21, 2007. Motions for Summary Judgment On a motion for summary judgment, the moving party has the initial burden to provide sufficient proof, in admissible form, to enable a court to determine that it is entitled to judgment as a matter of law. If this burden is not met, the court must deny the relief sought (CPLR §3212; Zuckerman v. City of New York, 49 NY2d 557 [1980]). However, once the movant on a summary judgment motion has made a prima facie showing of its entitlement to summary judgment, “the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Garnham & Han Real Estate Brokers v. Oppenheimer, 148 AD2d 493 [1989]; see also Zuckerman, 49 NY2d at 562). The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury (see Holbrook v. United Hosp. Med. Ctr., 248 AD2d 358, 359 [2d Dept 1998]). Therefore, on a medical malpractice motion for summary judgment, a moving physician must establish, prima facie, either that there was no departure from accepted standards of medical care or that any departure was not a proximate cause of the plaintiff’s injuries (Uchitel v. Fleischer, 137 AD3d 1111, 1112 [2d Dept 2016]; Senatore v. Epstein, 128 AD3d 794, 795 [2d Dept 2015]). To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s bill of particulars (Wall v. Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1044–1045 [2d Dept 2010]; Grant v. Hudson Val. Hosp. Ctr., 55 AD3d 874, 874 [2d Dept 2008]). Once this showing has been made, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant’s prima facie showing, but only “as to those elements on which the defendant met the prima facie burden” (Harris v. Saint Joseph’s Med. Ctr., 128 AD3d 1010, 1012 [2d Dept 2015]; see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). “General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment” (DiMitri v. Monsouri, 302 AD2d 420, 421 [2003] [citations omitted]; Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 [1988]). “Generally, a doctor only owes a duty of care to his or her patient, but a doctor’s duty can, in limited circumstances, encompass nonpatients who have a special relationship with either the physician or the patient” (Klein v. Bialer, 72 AD3d 744, 746 [2d Dept 2010], quoting McNulty v. City of New York, 100 NY2d 227, 232 [2003], [internal quotations omitted]). The Court has, in limited circumstances, expanded the duty when the third party’s injury resulted from the physician’s performance of the duty of care owed to the patient (see McNulty v. City of New York, 100 NY2d at 233). The Court has identified critical factors in extending the duty of care by doctor defendants to non-patient plaintiffs (see Tenuto v. Lederle Labs., 90 NY2d 606 [1997]). The critical factors include: “(1) the parent had engaged the physician and relied exclusively on his professional advice, (2) it was the physician’s acts in administering the vaccination to the infant that created the serious risk of physical harm to the parent and (3) the physician knew or should have known that the failure to warn the parent of the serious peril heightened the risk” (Cohen v. Cabrini Med. Ctr., 94 NY2d 639 [2000]). Here, the infant-Plaintiff was not a patient of the Defendants and there is no allegation or documentation that any treatment Defendants administered to Mr. Maisano actually caused infant-Plaintiff to become infected with MRSA. The mere assertion that if Mr. Maisano had been told the results of his wound culture, infant-Plaintiff’s infection might have been diagnosed sooner is insufficient to establish a duty of care (compare Tenuto v. Lederle Labs., 90 NY2d 606). Infant-Plaintiff’s injuries were not caused by the improper act or omission of the Defendants. It was not the treatment of Mr. Maisano’s infection by the Defendants that created a risk of injury to infant-Plaintiff, but the infection itself. The infection existed prior, and in no relation, to the treatment rendered by the Defendants. Futhermore, the original organism taken from Mr. Maisano on August 21, 2007 was different than the organism taken from him on September 23, 2007. Therefore, there was no special relationship extending to infant-Plaintiff by Defendants. The Defendants have demonstrated their entitlement to judgment as a matter of law. Defendants’ duty of care to Mr. Maisano is not extended to infant-Plaintiff because no special duty was owed to infant-Plaintiff. Infant-Plaintiff has failed to establish a triable issue of fact as to the duty owed by Defendants. Accordingly, it is ORDERED, that Defendants, BETH ISRAEL MEDICAL CENTER, SEYMOUR EDELSTEIN, M.D., and GULDENIZ DOGANAY, M.D., motions for summary judgment are granted and Plaintiffs complaint is dismissed in its entirety. This constitutes the opinion, decision and Order of this Court.
