First Department Reverses Summary Judgment in Medical Malpractice Action

In April, the Supreme Court Appellate Division, First Department reversed the lower court’s ruling of summary judgment in favor of the defendant in a medical malpractice action. Originally, the Bronx Supreme Court granted summary judgment for doctor and hospital, finding that the defendants’ failure to diagnose cancer was not a proximate cause of the plaintiff’s injury. On reversal, the First Department allowed that triable issues of fact existed. The plaintiff claimed that negligence in the failure to diagnose permitted the disease to spread. Contrary to the Supreme Court, the Appellate Division ruled that this issue, contested on opposing sides by expert testimony, presented an issue of fact that was best left in the hands of the jury to decide.

This issue revolves around the injuries suffered by the plaintiff. Inherent in the term “failure to diagnose” is the notion that the plaintiff already had cancer when she sought the medical advice of the defendants. As such, the defendants would necessarily claim that, although they did not diagnose the disease, it was already present in the defendant, and therefore their missed diagnosis was not the cause of the injuries. On the other side, while the plaintiff would certainly agree that the disease was already present when she consulted the doctor and hospital, she would (and did) argue that her injuries go beyond this. The negligence and failings of the defendants were the cause of the spread of the disease, and also caused her pain and suffering, emotional distress, and a reduced life expectancy. And although the defendants argued that there was no cure for the plaintiff’s cancer by the time she sought treatment, the Court countered that a cure “is not the only positive treatment outcome.”

As often happens in medical malpractice actions, the decision in this case hinged on the testimony of each side’s expert. Here, the Court felt that the plaintiff’s expert made an argument strong enough to overcome the defense’s summary judgment motion. The complaint is now reinstated, and will return to the Bronx Supreme Court.

This case can be found in the New York Official Reports for the First Department.

Polanco v. Reed, et. al.

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