SACS Appellate Group Prevails: Second Department Reverses Lower Court, Granting Summary Judgment To Medical Malpractice Defendants

In a July decision, the Appellate Division, Second Department reversed the lower court’s denial of summary judgment and dismissed defendants from the medical malpractice action. Plaintiff underwent a cardiac catheterization in June 2010 and was seen by defendants for follow-up between August 2010 and February 2011, confirming no signs or symptoms of infection. Upon complaining of right leg pain, the defendant family physician referred plaintiff to an orthopedist who performed a diagnostic work-up for iliopsoas infection. Plaintiff ultimately underwent a two-stage right hip replacement in August 2011 and commenced an action claiming a delay in diagnosing the infection.

Defendants moved for summary judgment, arguing that neither the family physician nor the institutional defendants were negligent in their treatment of plaintiff. However, the lower court denied summary judgment, finding that plaintiff raised an issue of fact as to whether he should have been referred for further diagnostic imaging, admitted to the hospital, and/or given antibiotics.

On appeal, defendants argued they were not vicariously liable for the non-employee physicians as a matter of law because they acted as plaintiff’s private doctors. Defendants also contended that plaintiff’s general and vascular surgery expert was unqualified to opine outside of their area of specialization, including the specialties involved here: internal medicine, emergency medicine, and family medicine. Moreover, plaintiff’s opposition relied on hindsight reasoning and non-specific symptoms of musculoskeletal pain that arose only during a specific internal hip rotation maneuver. Plaintiff opposed, arguing that his expert was a seasoned surgeon qualified to opine on post-catheterization infections and that earlier diagnostic testing was warranted and would have led to the discovery of a seeded infection.

The Second Department agreed with defendants in a detailed decision, holding that plaintiff’s expert was not qualified and, nevertheless, relied upon speculation in opining that defendants were negligent: “Here, the plaintiff’s expert, who specialized in general and vascular surgery, did not indicate that he or she had any special training or expertise in orthopedics or family medicine, and failed to set forth how he or she was, or became, familiar with the applicable standards of care in these specialized areas of practice. Further, the conclusions of the plaintiff’s expert as to three individually named physicians were conclusory and speculative, improperly based on hindsight reasoning, and self-contradictory.” Accordingly, summary judgment was granted as to defendants.

Defendants also opposed plaintiff’s attempt to revive the appeal following the dismissal. However, SACS successfully opposed plaintiff’s motion for leave to reargue and for leave to the Court of Appeals.

The appeal brief was drafted by Nicholas Tam and Chris Simone, with Nick arguing the appeal before the Second Department.

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