Carrero v. St. Barnabas Hospital

50 A.D.3d 382, 854 N.Y.S.2d 309

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 2008
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered March 24, 2006, which, in this medical malpractice action, denied the hospital’s motion for summary judgment dismissing the complaint and Dr. Leong’s cross motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

In view of the experts’ conflicting opinions, it cannot be concluded as a matter of law that the delay in diagnosis and treatment of the decedent’s breast cancer did not diminish her chance of survival or hasten her death (see Schaub v Cooper, 34 AD3d 268 [2006]). Issues of fact also exist as to Dr. Leong’s treatment of the decedent arising from the opinion of the hospital’s expert that Dr. Leong should have examined the decedent’s breasts and evidence that by doing so he could have discovered the cancer and pursued a more aggressive plan of treatment (see Rodriguez v Montefiore Med. Ctr., 28 AD3d 357, 358 [2006]).

We have considered the parties’ remaining arguments for affirmative relief and find them unavailing. Concur—Mazzarelli, J.P, Andrias, Gonzalez and Acosta, JJ.