After plaintiff presented at an emergency department complaining of severe abdominal pain, defendant Richard D. Bloomberg, M.D., the on-call surgeon, performed an exploratory laparotomy, which revealed the presence of a large mass in plaintiff’s stomach. During the surgery, Bloomberg consulted with defendant Timothy R. Rasmusson, M.D. Bloomberg and Rasmusson also consulted with defendant George Blessios, M.D., a specialist in hepatobiliary surgery. All three physicians agreed that plaintiff required a second exploratory surgery to determine how to remove the mass.
The next day, Blessios performed the second exploratory surgery and removed the mass, along with plaintiff’s stomach and several other internal organs, via a Whipple procedure. Plaintiff filed her New York medical malpractice action asserting that the Whipple procedure was unnecessary and that Bloomberg’s and Rasmusson’s negligent care led to the performance of the unnecessary procedure.
Bloomberg and Rasmusson moved for summary judgment dismissing the complaint and all cross-claims against them, which was granted. Plaintiff filed an appeal.
The Supreme Court of the State of New York Appellate Division, Fourth Judicial Department held in its May 3, 2024 Memorandum and Order: “Here, Bloomberg and Rasmusson fulfilled their duty of care by referring plaintiff to
Blessios because plaintiff’s condition involved anatomical structures that were outside their area of expertise (see Doe v Schwarzwald, 142 AD3d 578, 579 [2d Dept 2016]). The movants’ expert opined that Blessios had an expertise in hepatobiliary procedures that Bloomberg and Rasmusson lacked. Plaintiff failed to raise a triable issue of fact in opposition inasmuch as plaintiff’s expert failed to address, much less oppose, that assessment of the physicians’ expertise (see Page v Niagara Falls Mem. Med. Ctr., 174 AD3d 1318, 1320-1321 [4th Dept 2019], lv denied 34 NY3d 908 [2020]). Moreover, plaintiff’s assertion that Bloomberg, Rasmusson, and Blessios jointly diagnosed plaintiff is belied by the record, and plaintiff presented no evidence that Blessios formed a diagnosis or conducted the second procedure in
reliance on Bloomberg’s or Rasmusson’s initial impressions. Thus, even assuming, arguendo, that plaintiff raised a triable issue of fact whether Bloomberg and Rasmusson were negligent in their care or treatment, we conclude, contrary to plaintiff’s contention, that plaintiff failed to raise a triable issue of fact in opposition to Bloomberg’s and Rasmusson’s showing that any such negligence was not a proximate cause of her injuries—i.e., the performance of an allegedly unnecessary Whipple procedure. Supreme Court therefore properly granted that part of the motion with respect to Bloomberg and Rasmusson.”
Source Zieliniski v. Blessios, CA 23-00279.
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