Plaintiffs, as the administrators of decedent’s estate, commenced their New York medical malpractice action against
defendant Ellis Hospital, an urgent care, and a physician assistant, the physician assistant’s supervising physician, and another physician, alleging that they failed to timely consider, test for and treat decedent for a tick-borne illness,
thereby decreasing her chances for a better medical outcome. After issue was joined and discovery completed, defendants moved for summary judgment, arguing that they complied with the standard of care and that because the cause of decedent’s death could not be determined, plaintiffs could not establish that any alleged departures from the
standard of care were the proximate cause of decedent’s death. Plaintiffs opposed the motion.
The trial court found that defendants met their prima facie burden through expert testimony that the defendants did not deviate from the applicable standard of care and that, if there was any such deviation, it was not the proximate cause of decedent’s injuries. The trial court also found that the opinions of plaintiffs’ experts were “speculative, conclusory, and lack[ed] the evidentiary support necessary to create a material question of fact.” Consequently, the trial court granted defendants’ motion and dismissed the complaint, after which plaintiffs appealed.
The State of New York Supreme Court, Appellate Division Third Judicial Department stated in its July 3, 2024 Memorandum and Order: “we find that Supreme Court [trial court] erroneously determined that plaintiffs’ experts were too speculative and conclusory. On the contrary, their opinions that decedent likely had one or more tick-borne illnesses are supported by the medical records. Throughout the course of decedent’s illness and treatment, defendants were aware that she had spent significant time at an outdoor camp and noted that the rash on her leg was consistent with a tick bite. Gravell and Rattner included tick-borne illness in their differential diagnoses lists, and defendants acknowledged that the additional symptoms with which decedent presented during the second visit were consistent with a tick-borne illness. Further, Rattner was also aware that decedent had been treating with Bactrim for several days and saw very little, if any, improvement in her rash. According plaintiffs, as the nonmoving parties, the benefit of all reasonable inferences, plaintiffs raised a question of fact regarding whether defendants deviated from the standard of care by failing to immediately administer doxycycline to decedent following the first visit to the urgent care, as she presented with a distinctive rash and history of spending significant time outdoors in an endemic tick zone. This question of fact is supported by the second visit, when decedent presented with additional symptoms that defendants acknowledge were consistent with a tick-borne illness. We also find that material questions of fact exist regarding causation, as plaintiffs provided sufficient details to allow a rational juror to conclude that decedent would have had a better chance at recovering from her illness if she had received doxycycline upon her first or second visit to the urgent care … Consequently, the order on appeal must be reversed and the matter remitted to Supreme Court for further proceedings.”
Source Lubrano-Birken v. Ellis Hospital, CV-23-1020.
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