The New York Supreme Court Appellate Division, Third Department (“New York Appellate Court”) held in its decision dated July 1, 2021: “Viewing the evidence in a light most favorable to plaintiff, a triable factual question exists regarding whether the notation in Twin Tiers’ chart — attributing a comment to Connolly regarding scheduling of treatment — is sufficient to establish an implied physician-patient relationship between plaintiff and Connolly or Retina Associates … A factual question also exists as to whether plaintiff or Rosenberg reasonably and foreseeably relied upon this advice attributed to Connolly, as some information in the record indicates that a general ophthalmologist would typically defer to a retinal specialist in relation to treatment of BARN, including the timing of such treatment … Further, Femia opined that the standard of care for BARN requires immediate treatment and Huang opined that the failure to treat plaintiff in a timely fashion significantly reduced her chance for a good outcome, raising questions of fact regarding breach of duty and proximate cause … Accordingly, Supreme Court erred in granting summary judgment to Connolly and Retina Associates.”
On December 9, 2014, plaintiff was seen in a hospital for eye problems and was sent to defendant Twin Tiers Eye Care Associates, P.C., where she was evaluated by defendant Richard A. Rosenberg, an ophthalmologist. Rosenberg diagnosed plaintiff with, among other things, iritis/optic neuritis in the right eye, with an acute pressure strike. Plaintiff was given medication and eye drops and instructed to return to the hospital for neurological testing. She was admitted to the hospital. The next day, plaintiff was seen by defendant Douglas E. Willard, another ophthalmologist within Twin Tiers’ practice, who authorized her release from the hospital with instructions to continue medications and follow up with Rosenberg. On December 17, 2014, Rosenberg examined plaintiff and made observations that raised the possibility of several diagnoses, including the rare condition of bilateral acute retinal necrosis (“BARN”). Based on that and another possible diagnosis, Rosenberg recommended that plaintiff obtain an evaluation with a retinal specialist at defendant Retina Associates of Western New York, P.C. within one to two days. A medical scribe at Twin Tiers called Retina Associates and scheduled plaintiff an appointment to see defendant Brian Connolly on December 30, 2014. This was subsequently rescheduled to January 7, 2015, at plaintiff’s request due to her holiday travel plans.
On December 23, 2014, plaintiff’s physician referred her back to Twin Tiers when she presented with continued eye symptoms. Plaintiff was seen that day by Willard, who observed that her left eye symptoms were returning after ending steroid treatment, so he prescribed a low dose steroid to keep the symptoms at bay until her appointment with the retinal specialist. A few days later, while on vacation out of state, plaintiff was treated for further vision problems. She was diagnosed with BARN in her right eye and hospitalized for 17 days.
Plaintiff filed her New York medical malpractice lawsuit asserting that defendants failed to properly and promptly diagnose and treat her for BARN, which resulted in, among other injuries, severe loss of vision in both eyes. Following joinder of issue and discovery, Twin Tiers, Rosenberg and Willard moved for summary judgment dismissing the complaint against them. Retina Associates and Connolly also moved for summary judgment. Supreme Court granted both motions and dismissed the complaint. The plaintiff appealed.
New York Appellate Court Decision
The New York Appellate Court stated: “Plaintiff’s expert affidavits raised questions regarding breach of duty and causation. Because the expert opinions of Verra and Robinson conflict with those of Femia and Huang, specifically as to whether a potential diagnosis of BARN is within the purview of a general ophthalmologist and whether Rosenberg should have affirmatively acted to ensure a timely appointment with a specialist, a credibility issue was raised that would be more properly resolved by a jury, rendering summary judgment inappropriate … Accordingly, Supreme Court should have denied the motion as to Rosenberg, as well as Willard and Twin Tiers.”
The New York Appellate Court further stated: “Connolly denied having spoken with anyone regarding the scheduling of plaintiff’s appointment, and he testified that his office typically offers a referral appointment that same day. Although Twin Tiers’ scribe testified that she did not recall who she spoke to at Retina Associates and she would not typically speak to a physician, the note she typed indicates that Connolly provided advice regarding the timing of the referral appointment. Multiple questions are posed regarding the source of the advice in the note: did Connolly himself speak to someone from Twin Tiers and give that advice, did an employee of Retina Associates who was scheduling the appointment for plaintiff speak to Connolly and relay his advice to the Twin Tiers scribe, did an employee of Retina Associates give that advice and attribute it to Connolly without actually speaking to him, did such employee give that advice and not attribute it to Connolly but the Twin Tiers scribe assumed that it originated with Connolly, or did the Twin Tiers scribe write the note without having received any such advice from Connolly or Retina Associates?”
Source Marshall v Rosenberg, 2021 NY Slip Op 04180.
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