Defendants Daniel Colangelo, M.D., and Robert Green, M.D., move, by order to show cause, pursuant to C.P.L.R. Rule 3212, for an order granting them summary judgment and dismissing this action against them. Prior to the date that the motion was marked fully submitted, the parties entered into a stipulation of discontinuance as to Dr. Colangelo. For the reasons set forth below, the motion by Dr. Green is granted.

This action, sounding in medical malpractice and lack of informed consent, arises out of treatment rendered to Deborah Blatt by Dr. Green for polyneuropathy. On November 24, 2003, Ms. Blatt was seen by Dr. Colangelo, an internist who was covering for Ms. Blatt's primary care physician, in his Mamaroneck office. She complained of a sore throat, earache, intermittent dry [*2]cough, difficulty swallowing, hoarseness, and general weakness. Dr. Colangelo diagnosed her with an upper respiratory infection. He prescribed Levaquin, an antibiotic, and Zyrtec-D, an anti-histamine. The next morning, November 25, 2003, Ms. Blatt experienced paralysis in the right side of her face. After alerting her husband of her condition, they contacted a neighbor, Steven Grunstein, M.D., who told them to consult with Robert Green, M.D., an otolaryngologist in Manhattan. That same day, Ms. Blatt was seen by Dr. Green. He diagnosed her with a viral polyneuropathy involving at least three cranial nerves and referred her to Mitchell Raps, M.D., a neurologist. Dr. Green also prescribed prednisone, a steroid, and Famvir, an antiviral medication. According to the deposition testimony of Ms. Blatt and Dr. Green, both parties understood that Dr. Raps would be taking over Ms. Blatt's care once she left Dr. Green's office and that Dr. Raps would determine the future course of treatment. Ms. Blatt saw Dr. Raps later that same day, and he admitted her to Mount Sinai Hospital. She remained in the hospital until November 29, 2004. During her stay, a number of diagnostic tests were taken. She was discharged with a prescription for an antiviral drug and instructions to call Dr. Raps for a follow-up. Ms. Blatt testified in her deposition that thereafter she remained under the care of Dr. Raps, who diagnosed her with shingles of the inner ear. She brings this action against the defendants for their alleged failure to diagnose and treat "Bell's Palsey / Ramsay Hunt Syndrome."

A defendant moving for summary judgment in a medical malpractice action must make a prima facie showing of entitlement to judgment as a matter of law by showing "that in treating the plaintiff there was no departure from good and accepted medical practice or that any departure was not the proximate cause of the injuries alleged." Roques v. Nobel, 73 AD3d 204, 206 (1st Dep't 2010) (citations omitted). To satisfy the burden, a defendant in a medical malpractice action must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars. Id. If the movant makes a prima facie showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986) (citation omitted). Specifically, in a medical malpractice action, a plaintiff opposing a summary judgment motion

must demonstrate that the defendant did in fact commit malpractice and that the malpractice was the proximate cause of the plaintiff's injuries. . . . In order to meet the required burden, the plaintiff must submit an affidavit from a physician attesting that the defendant departed from accepted medical practice and that the departure was the proximate cause of the injuries alleged.

Roques, 73 AD3d at 207 (internal citations omitted).

In support of his summary judgment motion, Dr. Green offers the affirmation of Ronald Hoffman, M.D., a board certified otolaryngologist with a specialty in neurology. He states that he has been involved in the diagnosis and treatment of over 60 patients with Bell's Palsy or facial nerve problems. Dr. Hoffman further states that he is familiar with the standards of care for internists and otolaryngologists in treating facial nerve disorders. He sets forth that based on his review of the pleadings, the bill of particulars, the relevant medical records of Ms. Blatt, and the deposition transcripts, neither Dr. Green nor Dr. Colangelo departed from good and accepted medical practice [*3]or caused injury to Ms. Blatt. Dr. Hoffman maintains that Ms. Blatt presented to the doctors with polyneuropathy affecting the 7th, 9th, and 10th cranial nerves.^[FN1] Because of the involvement of multiple nerves, it was necessary to refer Ms. Blatt to a neurologist, who could rule out a serious condition like a tumor or spinal fluid infection. Dr. Hoffman asserts that if only the 7th cranial nerve was involved, Dr. Green could have managed the case. Dr. Hoffman sets forth that Ms. Blatt's informed consent was never required.

In opposition, plaintiffs argue that defendant has not made out a prima facie entitlement to summary judgment. They assert that they have alleged a case of abandonment, which can be determined by a lay jury. Plaintiffs also offer an affirmation from Beatrice C. Engstrand, M.D., a board certified neurologist. Dr. Engstrand acknowledges that the initial treatment rendered by Dr. Green was appropriate, but argues that he should have followed up with Dr. Raps in order to ensure that Ms. Blatt was taking the prednisone. Dr. Engstrand sets forth that the failure to follow up with Ms. Blatt "was a proximate cause of her injuries."

In reply, Dr. Green offers a second affirmation from Dr. Hoffman, who opines that Dr. Green's responsibility to render care to Ms. Blatt ended when he referred her to the neurologist. He further asserts that it would have been malpractice for Dr. Green to dictate Ms. Blatt's treatment to Dr. Raps, whose expertise was sought out of the purpose of diagnosing and treating Ms. Blatt.

Dr. Green has established a prima facie entitlement to summary judgment. He has demonstrated through expert testimony that his treatment was within the standard of care, which ended upon his referral of Ms. Blatt to a physician that would be more familiar with her condition. Although plaintiffs' expert concludes that Dr. Green had a duty to see to it that Ms. Blatt was taking prednisone, "whether the defendant doctor owed the plaintiff a duty of care . . . is a question for the court, and generally not an appropriate subject for expert opinion." Dallas-Stephenson v. Waisman, 39 AD3d 303, 307 (1st Dep't 2007). The First Department has held that a referring physician generally owes no duty to his or her patient once the patient comes under the care of the other doctor. See Harrington v. Neurological Inst. of Columbia Presbyterian Med.Ctr., 254 AD2d 129, 130-31 (1st Dep't 1998); Shkolnik v. Hosp. for Joint Diseases Orthopaedic Inst., 211 AD2d 347, 350-51 (1st Dep't 1995), lv. denied, 87 NY2d 895. Summary judgment is warranted here, because Dr. Green referred Ms. Blatt to a specialist and was no longer involved in her treatment or diagnosis. Cf. Arshansky v. Royal Concourse Co., 28 AD2d 986, 987 (1st Dep't 1967). Contrary to plaintiffs' argument, this is not a case of abandonment. The cases they cite to support this theory are inapplicable. Unlike the facts alleged in Cregan v. Sachs, 65 AD3d 101 (1st Dep't 2009) and Colburn v. Blum, 233 AD2d 888 (4th Dep't 1996), this is not a case in which a physician left a patient without appropriate medical attention. Rather, Ms. Blatt was being treated by another physician. Accordingly, it is

ORDERED that the motion for summary judgment by Robert Green, M.D., is granted, and the complaint is dismissed against him and the Clerk is directed to enter judgment accordingly; and it is further [*4]

ORDERED that the action shall continue as to the remaining defendants; and it is further

ORDERED that the parties are directed to appear for a previously scheduled pre-trial conference on April 12, 2011, at 9:30 a.m.

Dated: March 18, 2011

______________________________

Joan B. Lobis, J.S.C.