Jiminian v. St. Barnabas Hospital

648 Order, Supreme Court, Bronx County (Barry Salman, J.), entered June 10, 2010, which, to the extent appealed from, in this action alleging medical malpractice and wrongful death, denied the motions of defendants Christopher Leong, D.O., and St. Barnabas Hospital for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs. The motion court correctly determined that following defendants’ showing of entitlement to judgment as a matter of law, plaintiff demonstrated the existence of triable issues of fact precluding dismissal of the action as against defendants through plaintiffs own testimony and the report submitted by his expert. Plaintiffs testimony concerning his wife’s complaints of dizziness and shortness of breath are res gestae, admissible as simple expressions of suffering by the injured party, who is no longer available by reason of her death, which occurred less than 12 hours following her complaints (see 58 NY Jur 2d, Evidence and Witnesses § 338; Tromblee v North Am. Acc. Ins. Co., 173 App Div 174, 176 [1916], affd 226 NY 615 [1919]). Accordingly, triable issues exist as to whether defendant hospital departed from good and accepted medical practice in failing to properly investigate and address the decedent’s complaints. The report of plaintiffs expert also conflicts with the conclusions of Leong’s expert on the issue of whether the decedent was at an increased risk for a pulmonary embolism secondary to deep vein thrombosis, whether Leong failed to properly recognize and treat that risk, and whether said failure was the proximate cause of death (see e.g. Bradley v Soundview Health-center, 4 AD3d 194 [2004]). We have considered defendants’ remaining contentions and find them unavailing. Concur — Gonzalez, P.J. Mazzarelli, Richter, Manzanet-Daniels and Román, JJ.