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Delayed Diagnosis of LymphomaIIn this New York City medical malpractice case, plaintiff argued that the surgeon failed to properly remove a known mass during an exploratory laparotomy and excision of mass, and improperly diagnosed the mass as a retroperitoneal lipoma, which is benign and not cancer.
When the cancer returned and plaintiff was diagnosed with lymphoma, an action was brought against the surgeon and internist. The defendant doctors moved for summary judgment seeking to dismiss the complaint. The trial court agreed with defendants and dismissed plaintiff’s action.
Mr. DiMartini was called in to appeal the decision. He argued that the lower court erred in dismissing the action against the surgeon since there was a material issue of fact as to whether the mass was actually excised by the surgeon during the procedure. The New York Appellate Division agreed and reinstated the action against the surgeon. Plaintiff’s claim was eventually settled among the parties.
NEW YORK SUPREME COURT, APPELLATE DIVISION, SECOND DEPARTMENT
New York, N.Y. (Stuart DiMartini of counsel), for appellants.
Anita R. Florio, J.P., Sandra J. Feuerstein, William D. Friedmann, Stephen G. Crane, JJ.
DECISION & ORDER
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Patterson, J.), which granted the separate motions of the defendants for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendant1 and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with one bill of costs payable to the defendant2 by the defendant1, and the complaint is reinstated insofar as asserted against the defendant1.
The plaintiff went to the defendant2, an internist, with a complaint of swelling in his lower extremities. After ruling out deep vein thrombosis, Defendant2 ordered, inter alia, a pelvic CT scan that indicated the presence of a retroperitoneal mass. Defendant2 admitted plaintiff to the hospital for a CT-guided needle biopsy to determine the nature of the mass. The pathologist reported that the needle biopsy showed atypical cells, but was inconclusive, and recommended an open biopsy. Defendant2 referred plaintiff to the defendant1, a surgeon, who performed an exploratory laparotomy and excision of the mass to obtain a definitive diagnosis. The resultant diagnosis was a retroperitoneal lipoma, a benign condition. After the surgery, plaintiff had a recurrence of the swelling in his left leg. Defendant2, who suspected a venous insufficiency, prescribed an elastic stocking and recommended that Plaintiff consult with a vascular surgeon.
Plaintiff sought a second opinion from nonparty physician3, who referred Plaintiff to nonparty physician4. The diagnostic tests authorized by physician3 and physician4 revealed a mass in the retroperitoneum and gluteal region. Approximately eight months after the laparotomy performed by Defendant1 resulted in the noncancerous diagnosis, a second CT guided needle biopsy revealed a malignant lymphoma. Plaintiff underwent a successful regimen of chemotherapy and radiation therapy which shrank the tumor, and subsequent diagnostic testing revealed negative findings for any spread of the cancer.
“In a medical malpractice action, a plaintiff, in opposition to a defendant physician’s summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324). General allegations of medical malpractice, merely conclusory in nature and unsupported by competent evidence tending to establish the essential elements of the claim, are insufficient to defeat a defendant physician’s entitlement to summary judgment (see Alvarez v. Prospect Hosp., supra at 325). The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage (see Prete v Rafla-Demetrious, 224 AD2d 674, 675).
The expert affidavit submitted by defendant2 in support of his motion for summary judgment established a prima facie case that his treatment of Plaintiff was not negligent. Defendant2 did not assume a general duty of care with regard to the care and treatment provided Plaintiff by defendant1 and the pathologist in diagnosing the nature of the mass (see Yasin v. Manhattan Eye, Ear & Throat Hosp., 254 AD2d 281, 282; Donnelly v. Finkel, 226 AD2d 671, 672). In his affirmation in opposition to defendant2’s motion, the plaintiffs’ expert failed to show how the care and treatment rendered by defendant2 either before or after the surgery performed by defendant1 proximately caused Plaintiff’s alleged injuries (see Yasin v. Manhattan Eye, Ear & Throat Hosp., supra at 283; Bartha v. Lombardo & Assocs., 212 AD2d 494).
As to the defendant1, the expert affidavit submitted by him in support of his separate motion for summary judgment established a prima facie case that his treatment of Plaintiff was not negligent. Nevertheless, his motion was improperly granted as the affirmation of the plaintiffs’ undisclosed expert was sufficient to raise the existence of triable factual issues (cf. Alvarez v. Prospect Hosp., supra at 327; Fileccia v. Massapequa Gen. Hosp., 63 NY2d 639, affg 99 AD2d 796). The undisclosed expert recited specific facts in the medical record upon which the expert’s opinion was based (cf. Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359) and opined that defendant1’s deviations from good and accepted medical practice proximately caused Plaintiff’s injuries by delaying the diagnosis of lymphoma.
Accordingly, the Supreme Court improperly granted summary judgment to defendant.
FLORIO, J.P., FEUERSTEIN, FRIEDMANN and CRANE, JJ., concur.
If you or a loved one has been injured as a result of medical mistake or error by a doctor, surgeon, hospital, or nurse, you need an experienced New York medical malpractice lawyer on your side.
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