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Court Decides if Summary Judgment Should Be Granted


A New York Family Lawyer said that, in May 2004, plaintiff’s decedent was diagnosed with liver cancer, determined later to have originated in her colon. Approximately 14 months earlier, on March 18, 2003, medical records show she had complained of rectal bleeding to her primary doctor, defendant. The same records reflect she was given a referral to defendant a gastroenterologist, for a colonoscopy, but the colonoscopy did not take place. Plaintiff’s decedent met again with the doctor in July 2003, but the records do not reflect a discussion of rectal bleeding or the colonoscopy referral.

A New York Custody Lawyer said that, by September 20, 2003, plaintiff began to suffer an extended period of constipation and abdominal pain and went to the emergency room of defendant Medical Center. A CT scan was performed at that time, ultimately showing thickening of the wall of her sigmoid colon, an enlarged liver and suspicion of a mass in the liver. The CT report recommended an MRI and clinical correlation to further evaluate and exclude inflammatory versus malignant process. Plaintiff was referred again to the doctor for a colonoscopy, which took place a week later on September 26, 2003. The doctor however, was unable to complete the colonoscopy because of the presence of highly inflamed tissue and the possibility of a perforation in his colon. He sent plaintiff back to the emergency room at the said medical center immediately with two tissue samples, asking for an urgent surgical evaluation and monitoring to rule out perforation.

A Nassau County Family Lawyer said that, defendant the surgeon on call at the medical center, evaluated plaintiff and concluded she showed no signs of an immediate surgical emergency. Defendant, a pathologist, examined the tissue samples and found evidence of inflammation, but no malignant cells in the samples. Gastroenterologists at Montefiore also evaluated plaintiff. A small bowel series was done to rule out problems in that area of the abdomen.

A Bronx Order of Protection Lawyer said that, there was agreement among the physicians at the said medical center that plaintiff had, at the very least, some type of inflammatory bowel disease, which had to be treated and ameliorated before a repeat colonoscopy could be performed to confirm their impressions and narrow their differential diagnoses. They began treating plaintiff with medication for Crohn’s disease and contemplated a follow-up plan with the gastroenterology department. According to defendant primary care doctor’s testimony, plaintiff was anxious to leave the hospital and argued that any testing done as an inpatient could also be done on an outpatient basis and the former agreed that was true. Plaintiff reportedly told him she preferred to continue with her own gastroenterologist, who had privileges at Bronx Lebanon Hospital, but not at Montefiore. Nevertheless, an appointment was made for her with the gastroenterologists at Montefiore, which she did not keep.

A Nassau County Custody Laywer said the plaintiff began to feel much better with the treatment for Crohn’s disease and followed with the doctors. According to plaintiff’s testimony, she had two appointments for another colonoscopy in November or December 2003, but those appointments were canceled by the gastroenterologist’s office. On December 1, 2003, plaintiff returned to the emergency department at Montefiore after a fainting spell. The hospital records reflect that she refused an inpatient colonoscopy at that time. By the time plaintiff met with the gastroenterologist in January 2004, she had confirmed she was now pregnant. The doctor explained the risks of colonoscopy with pregnancy and she opted not to have the colonoscopy at that time. Five months later, ultrasound studies showed metastasis of colon cancer to her liver. She began chemotherapy, delivered her child, and died three years later on June 15, 2007.

A Bronx Visitation Lawyer said that, plaintiff commenced this lawsuit in 2006 and was deposed. After plaintiff’s death, her mother was substituted for her as plaintiff in the action. The note of issue was filed in June 2009 and the doctors made the instant motions for summary judgment dismissing the plaintiff’s action against them.

The issue in this case is whether the motion for summary judgment should be granted.

Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment. A party opposing a motion for summary judgment must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact. Bare conclusory assertions of an expert are insufficient to defeat summary judgment. While an expert may reach conclusions in his area of expertise, he may do so only on the basis of established facts.

To make a prima facie case of medical malpractice, a plaintiff must prove that the healthcare provider departed from accepted standards of practice, thereby breaching a duty owed to the patient, and must also prove that the departure alleged was a proximate cause of injury. Defendants are to be judged on the facts that existed at the relevant time and not in retrospect and in light of subsequent events. A physician generally does not have a duty to involve him or herself with aspects of the plaintiff’s care unrelated to the physician’s field of practice.

There was no need for a guaiac since plaintiff told her primary doctor she was bleeding rectally. A rectal exam was not indicated and would not have shown anything in any event since there is no evidence she had rectal cancer. A CT scan was performed in September 2003 and her primary doctor did communicate with the defendant gastroenterologist, after the incomplete colonoscopy. A repeat colonoscopy for a definitive diagnosis was contemplated by him as soon as plaintiff’s colon healed sufficiently to make that possible. The gastroenterologist was following the case and the primary doctor reasonably relied on the specialist’s treatment of plaintiff’s gastrointestinal complaints.

It was plaintiff’s decision not to have an MRI at Montefiore in September 2003. Plaintiff’s expert did not opine as to what could have been seen on an MRI at that point, even if she had agreed. As noted previously, either plaintiff’s liver was involved by then, or it was not. There were possible explanations for the findings on the CT scan that did not involve cancer. Plaintiff’s experts did not take a position either way on that issue and the evidence of cancer least amenable to variable interpretation would have been the colonoscopy.

It was her decision not to have a colonoscopy in December 2003, the first time it could have been done after the September visit to the emergency room. Her testimony that it could not be performed at that time because of an unexplained fever is flatly contradicted by the hospital records and does not create an issue of fact for trial, especially since she testified both that a colonoscopy was recommended and that it was not recommended during that same visit. It was her decision not to have a colonoscopy in January 2004 because of her pregnancy. The record shows that Torres only underwent colonoscopy and radiological or ultrasound studies when she was experiencing pain, despite the number of times such studies were recommended to her. she testified that she never felt abdominal pain before September 2003 and that she had begun to feel much better by December and January since the bowel inflammation was improving with treatment.

Despite plaintiff’s attempts to cast doubt on the primary doctor’s first referral to a gastroenterologist in March 2003, that referral was documented by him. Plaintiff testimony that “nothing” was done by any of the doctors to whom she complained of rectal bleeding does not create an issue of fact since any time her complaint of rectal bleeding was documented, there was also documented evidence that appropriate action was either taken or recommended, whether she followed the particular recommendations or not.

Plaintiff’s experts have not raised issues of fact regarding departures from accepted medical practice as to any of the movants. The doctor’s affidavit is, as previously noted, entirely vague, conclusory and directed to all defendants regardless of their individual role or lack of role in plaintiff’s treatment. Plaintiff’s unidentified expert’s opinion regarding departures is unsupported by the evidence or by any explanation for the conclusions offered. Furthermore, plaintiff’s experts did not make any connection between the alleged departures and the cause of plaintiff’s suffering and death, except to state that, if she had been diagnosed in 2003 or in January 2004, she would have had a statistical 60% to 40% chance of surviving for 5 years. Plaintiff’s expert offered no factual or evidentiary support for the bare conclusion that her cancer was at the development stages cited in 2003 and in January 2004.

Movants are directed to serve a copy of this order on the Clerk of Court who shall amend the caption to delete the names of the doctors as party defendants. Accordingly, the court held that, these separate motions by defendants, for summary judgment dismissing the plaintiff’s action against them are consolidated for disposition and are all granted.

If you are in a similar situation, seek the help of a Bronx Family Attorney and Bronx Order of Protection Attorney at Stephen Bilkis and Associates.

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