Plaintiffs filed their New York medical malpractice action seeking damages for injuries that Donald Scott (plaintiff) allegedly sustained as a result of the failure of the defendants, Theresa Mellas, P.A. and MedFirst Urgent Care, PLLC, doing business as MASH Urgent Care (MASH Urgent Care), to timely diagnose and treat plaintiff’s diabetes. In their bill of particulars and supplemental bill of particulars, plaintiffs also alleged that MASH Urgent Care failed to properly train and supervise its staff at the facility. Following discovery, defendants moved for summary judgment dismissing the amended complaint. The New York Supreme Court granted the motion with respect to the failure to properly train and supervise claims, but otherwise denied the motion. Defendants appealed.
The Supreme Court of the State of New York Appellate Division, Fourth Judicial Department stated in its June 6, 2025 Memorandum opinion: “Here, even assuming, arguendo, that defendants met their initial burden on the motion with respect to both the alleged deviations from the accepted standard of medical care and proximate causation … we conclude that plaintiffs raised triable issues of fact with respect to both elements sufficient to defeat the motion with respect to the medical malpractice cause of action by submitting the affidavit of their medical expert … Plaintiffs’ expert affidavit ‘squarely oppose[d]’ the affidavit of [defendants’ expert], resulting in ‘a classic battle of the experts that is properly left to a jury for resolution’.”
“Although the opinion of plaintiffs’ expert is based in large part on underlying factual assertions made by plaintiff in his affidavit—namely, plaintiff’s assertion that he told Mellas that he “had excessive thirst” and was “urinating much more frequently than usual,” both of which are symptoms of diabetes—defendants contend for the first time on appeal that plaintiff’s affidavit contradicts his deposition testimony and therefore constitutes “an attempt to raise feigned issues of fact where none truly exists” … Even assuming, arguendo, that defendants’ contention is properly before us, we conclude that it lacks merit. Plaintiff testified during his deposition that he told the attending medical provider at the urgent care facility that he was “extremely thirsty” and had been “[d]rinking milk constantly” because he was hungry. That testimony does not “flatly contradict” plaintiff’s claim in his affidavit that he told the provider that he was thirsty … Although the affidavit offers a different reason for plaintiff’s excessive consumption of milk (thirst rather than hunger), an inconsistency of that nature merely presents a credibility issue for trial. The same is true for the fact that plaintiff did not testify at his deposition that he told the provider about experiencing excessive urination and could not recall anything else he said about his symptoms other than experiencing thirst and fatigue.”
“Contrary to their contention, defendants failed to establish as a matter of law that plaintiff’s failure to seek treatment for weeks following his visit to MASH Urgent Care constitutes a superseding, intervening event that severed any causal connection to defendants’ alleged malpractice. Defendants failed to meet their initial burden on the motion of establishing that plaintiff’s delay in following up for treatment was an intervening act that was “extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from [defendants’] conduct” such that it could constitute “superseding act[s] which break[ ] the causal nexus”.”
Source Scott v. Mellas, 2025 NY Slip Op 03460.
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