Estate of Dunton v. O'Brien

192 A.D.2d 1084, 596 N.Y.S.2d 232

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 1993
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: On their motion for summary judgment, defendants physicians submitted evidence by way of an affirmation of a medical expert that they had not committed malpractice in their treatment of plaintiffs’ decedent. In opposition to the motion, plaintiffs submitted the affirmation of a physician, which raises issues of fact concerning the liability of defendants Peter O’Brien, M.D., Carl Sahler, M.D., and Brendan Brady, M.D., decedent’s treating physicians, but fails to raise any issue of fact concerning the liability of Frederick Erdman, M.D., and Jonathan Rubins, M.D. The order denying defendants’ motion is modified, therefore, to grant summary judgment to defendants Erdman and Rubins and to dismiss the complaint as to them.

Plaintiffs’ expert physician faulted the treating physicians for, among other things, failing to make a preoperative study of decedent’s ovarian tumor; failing to provide preoperative radiation, chemotherapy, or a combination of both; failing to provide immediate postoperative care for the surgical complications; and failing to provide immediate postoperative chemotherapy and postoperative radiation therapy. It was the opinion of plaintiffs’ medical expert that the treating physicians should have ordered a laparoscopic examination and radiation prior to surgery. Doctors Sahler, O’Brien and Brady performed the surgery on decedent and were responsible for her preoperative procedures and postoperative care and, thus, there is a question of fact whether they are liable for malpractice.

No question of fact was created concerning the treatment by Doctors Rubins and Erdman. Plaintiffs’ expert ascribed no act or omission constituting malpractice to Dr. Rubins, the radiologist, and he stated that the chemotherapy administered by Dr. Erdman was adequate. (Appeal from Order of Supreme Court, Monroe County, Stander, J. — Summary Judgment.) Present — Green, J. P., Fallon, Boomer, Davis and Boehm, JJ.