This is an action to recover damages for medical malpractice. The plaintiffs allege that the defendant a plastic surgeon, failed to timely diagnose plaintiff’s breast cancer. More specifically, plaintiffs allege in their Bill of Particulars that the defendants failed to appreciate the signs and symptoms of breast cancer, including the plaintiff’s complaint of a persistent, palpable left breast lump; failed to refer her for a sonogram and/or breast biopsy; failed to refer her to a breast surgeon; diagnosed her lump as due to an implant valve rather than a cancerous mass; gave the cancer an opportunity to spread and metastasize; and, failed to recommend a short interval follow up regarding her complaint of a breast lump. Plaintiffs claim that as the result of the delay in diagnosis, plaintiff suffered infiltrating ductal carcinoma, requiring left breast lumpectomy and axillary lymph node dissection, metastasis to three lymph nodes, chemotherapy and radiation. The plaintiffs maintain, inter alia, that defendant erroneously diagnosed plaintiff’s lump in her breast on November 11, 2004 as the valve of an implant, which, plaintiffs maintain, was actually a breast cancer lump that did not get diagnosed until nearly one year later in October, 2005.
On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.” Once the movant’s burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference.
The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damages. In a medical malpractice action, a defendant doctor or hospital moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether it was negligent. More specifically, “on a motion by a defendant for summary judgment in a medical malpractice action, the defendant has the initial burden of establishing, prima facie, that he or she did not depart from good and accepted medical practice, or if there was such a departure, that it was not a proximate cause of the plaintiff’s injuries.”