The plaintiff is appealing an order made by the Supreme Court of Suffolk County that granted the defendant’s motion to leave to reargue their motion for summary judgment. Upon re-argument, the court vacated the previous amended complaint and granted the defendant’s motion for summary judgment.
The plaintiff noticed a lump in her left armpit and was referred for a CT scan and mammography. The CT scan was done at the hospital and the defendant is the radiologist that read the scan. The defendant read the scan as negative and reported his findings to the plaintiff’s referring physician. The mammogram was also interpreted as negative a few weeks later by a non-party radiologist.
A year later, in the summer of 2001, the plaintiff was diagnosed with stage four breast cancer. In December of 2001, the plaintiff and her husband started this action to recover damages for medical malpractice.
In the pleadings it was alleged that the radiologist defendant departed from good and accepted standards by failing to diagnose the plaintiff’s breast cancer and that the hospital was liable for the medical malpractice.
The plaintiff passed away in 2004 and her husband was appointed as administrator of the estate and was substituted as the complainant in the case.
After discovery the defendants moved for summary judgment to dismiss the complaint against them. To support their case they offered expert testimony attesting that the defendant did not depart from the applicable standard of care because his reading of the CT scan was correct.
The plaintiff offered evidence from their own expert that stated that the defendant departed from the good and accepted standards of radiological practice and these departures resulted in her diagnosis being delayed.
The Supreme Court denied the motion for summary judgment by the defendant’s, but allowed the defendants to re-argue. Upon re-argument, the motion for summary judgment was granted in favor of the defendants and the complaint was dismissed.
The issue before the court is whether in a medical malpractice case where the defendant physician moves for summary judgment and only makes a prima facie showing that he/she did not depart from good and accepted medical practice the plaintiff has to make a triable issue of fact in regard to this element of the medical malpractice cause of action, but to the causation as well. The court is clarifying that this requirement does not exist.
The court has reviewed the facts of the case and it is determined that the Supreme Court was correct in the decision to grant the motion for summary judgment in favor of the defendant. The defendant showed prima facie that he/she did not stray from the accepted standard of care. The plaintiff has failed to raise a triable issue of fact in this case. For this reason, the motion for summary judgment is affirmed and the appeal is denied.
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