December 9, 2020

The New York Appellate Division, Fourth Department (“New York Appellate Court”), in its opinion entered on November 13, 2020, held, in part: “We further conclude that the court erred in denying the cross motion of Radiology Associates for summary judgment dismissing the amended complaint against them … Radiology Associates met their initial burden on the cross motion, and plaintiff failed to raise a triable issue in opposition thereto. The record establishes that Radiology Associates assumed only a limited duty of care in interpreting CT scans of decedent’s brain when he was hospitalized for seizures in order to rule out emergent conditions such as hemorrhaging, skull fracture, or brain injury and to ensure that decedent was stabilized … Indeed, on the occasions that decedent was admitted to the emergency department, he was under the care of other physicians for his tumor condition, the scope of radiology services was limited to emergency care, and Radiology Associates did not “assume[] a general duty of care to schedule or urge further testing, or [to] diagnose [or treat decedent’s underlying] medical condition[]”.”

The Underlying Facts

Plaintiff, as administrator of the estate of Reigo Martingano (decedent) and executor of the estate of Helen Martingano, commenced a New York medical malpractice and wrongful death action alleging that defendants were negligent in the care and treatment of decedent’s brain tumor and that, as a result of the negligence, decedent suffered recurrence of the tumor, which was not timely detected and treated.

Defendants Walter A. Hall, M.D. and Neurological Associates of Central New York, LLP (collectively, Neurological Associates) performed surgery to remove the tumor and provided treatment thereafter. Defendants John Picano, M.D., Denise Brannick, M.D., Mohammed Omar, M.D., and Radiology Associates of New Hartford, LLP (collectively, Radiology Associates) were emergency department radiologists who interpreted CT scans of decedent’s brain on three occasions when decedent was hospitalized because of seizures. Neurological Associates and Radiology Associates appealed from an order that denied their respective motion and cross motion for summary judgment dismissing the amended complaint against them.

With regard to Neurological Associates, the New York Appellate Court held: “plaintiff’s experts “failed to provide any factual basis for [their] conclusion[s]” that Neurological Associates deviated from the standard of care in surgically resecting the tumor, documenting the resection, and advising decedent as to post-operative radiation and, therefore, the experts’ affidavits “lacked probative force and [were] insufficient as a matter of law to overcome” the motion with respect to those claims … With respect to the claims regarding post-operative monitoring of decedent’s condition and detection of recurrence, although plaintiff raised a triable issue of fact whether Neurological Associates deviated from the applicable standard of care in that regard, we nevertheless conclude that plaintiff’s submissions are insufficient to raise a triable issue of fact whether any such deviation was a proximate cause of decedent’s injuries.”


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