The New York Appellate Division, Third Department (“New York Appellate Court”) held in its opinion dated March 25, 2021 in a New York medical malpractice lawsuit alleging that the defendant primary care physician and the defendant dermatologist were negligent in failing to refer the decedent to an appropriate medical specialist causing the delay in diagnosing anal cancer (adenocarcinoma of the anus) that the defendants were not entitled to summary judgment.
The New York medical malpractice lawsuit alleged that defendant Susan Choi, decedent’s primary care physician, and defendant Joseph Newmark, a dermatologist to whom decedent was referred, failed to diagnose and treat decedent with adenocarcinoma of the anus. Choi alleged that, upon a digital rectal examination and a prostate examination of the decedent in December 2013, there were small warts and there was no evidence that they were growing internally or impinging on the decedent’s anus. Choi further alleged that, based on her examination, she acted within the standard of care by referring the decedent to a dermatologist for treatment because such treatment was not part of her practice. Choi concluded that she acted appropriately when, after the decedent complained to her in February 2014 about the topical treatment that he had been receiving, she advised him that she was unaware of alternative treatments and suggested that he seek a different dermatologist.
The plaintiff’s medical expert, an internist, averred that, upon Choi’s December 2013 examination of the decedent, the warts were indurated enough to appreciate and the standard of care required a biopsy or a referral to a colorectal surgeon, as opposed to a dermatologist, to determine if the mass infiltrated into the anal canal. The internist also opined that Choi departed from the applicable standard of care when she advised the decedent to seek a different dermatologist after receiving his complaints in February 2014, and that the standard of care required that Choi reexamine him and perform a biopsy or refer him to a surgeon to have a biopsy done.
The New York Appellate Court held: “the internist’s opinion was sufficiently detailed and had an adequate foundation. Accordingly, Supreme Court correctly found that a material issue of fact existed as to whether Choi’s treatment of decedent was a departure from the applicable standard of care.”
The New York Appellate Court further held: “Plaintiff’s expert opined that Newmark failed to conduct thorough examinations of decedent and departed from the applicable standard of care by not performing a biopsy or referring decedent to a specialist for a biopsy when decedent’s condition did not improve over the course of decedent’s presentations to Newmark. The expert further opined that Newmark failed to appreciate the significance of the masses with induration and that perirectal condyloma can be malignant. Based on the competing expert opinions, Supreme Court correctly denied the Newmark defendants’ motion.”
Source Colon v. Choi, 2021 NY Slip Op 01823.
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