Second Department Reverses Trial Court and Grants Summary Judgment

GS LLP successfully appealed the Supreme Court’s denial of summary judgment, and obtained summary judgment for its neurologist client after oral argument in the Appellate Division, Second Department. Plaintiffs alleged that a 28 year-old, married woman unnecessarily died from a pulmonary embolus due the defendant-neurologist’s failure to diagnose a left calf DVT. The evidence adduced during discovery established that approximately one month after a lumbar puncture the patient called the defendant-neurologist and complained of generalized leg pain. It was alleged that the defendant-neurologist was negligent in failing to have the patient present to the office for a physical examination, and in prescribing pain medication over the phone. The patient died two days after calling the defendant.

Mr. Sikoscow successfully argued on appeal that summary judgment was improperly denied given the insufficiency of plaintiff expert’s affirmation in opposition to the summary judgment motion. Specifically, since the patient’s complaints were limited to generalized leg pain, there was insufficient evidence for plaintiff’s expert to have concluded that the defendant-neurologist would have suspected a left calf DVT even had he examined the patient. Mr. Sikoscow also successfully argued that plaintiff’s expert lacked the requisite knowledge concerning the standard of care governing neurologists.