The decedent, who was 36 years old, arrived at the emergency department of the defendant Lutheran Medical Center (“Lutheran”) at 1:12 a.m. on July 5, 2012, complaining of a migraine headache lasting for one day. She was examined by the defendant David N. Barabe and discharged later that morning with a diagnosis of migraine headache. After follow-up visits to her primary care provider and another visit to Lutheran’s emergency department with complaints of a constant headache, the decedent died on July 28, 2012, of a subarachnoid hemorrhage (bleeding in the space surrounding the brain).
In March 2013, the plaintiffs filed their New York medical malpractice wrongful death action against Lutheran, Barabe, and Shakeel A. Usmani, a physician who evaluated the decedent during her second visit to the emergency department, alleging that Barabe departed from the accepted standard of care in failing to obtain a proper medical history and failing to order necessary diagnostic tests that would have revealed the decedent’s condition, and that Lutheran was vicariously liable for Barabe’s medical malpractice.
The Lutheran defendants moved for summary judgment dismissing the New York medical malpractice complaint insofar as asserted against them. In an order dated May 13, 2019, the New York Supreme Court granted the Lutheran defendants’ motion for summary judgment, dismissing the cause of action to recover damages for medical malpractice insofar as asserted against Barabe and so much of the complaint as alleged that Lutheran was vicariously liable for Barabe’s alleged medical malpractice. The plaintiffs appealed.
In its decision dated February 9, 2022, the Supreme Court of the State of New York Appellate Division, Second Department (“New York Appellate Court”) stated: “the Lutheran defendants’ submissions were insufficient to establish Barabe’s prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for medical malpractice insofar as asserted against him. The opinion of their expert with respect to the absence of a departure from the accepted standard of care failed, among other things, to address the plaintiffs’ allegation that Barabe departed from the accepted standard of care in failing to order necessary diagnostic tests … In addition, the expert did not specify the accepted standard of medical care applicable to Barabe and failed to explain how Barabe did not depart from that standard … Moreover, the expert proffered only the most conclusory assertions regarding the absence of a causal link between Barabe’s alleged departures and the injuries sustained by the decedent.”
Source Ojeda v. Barabe, 2022 NY Slip Op 00870.
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