Lyons v. DeNise

118 A.D.3d 554, 987 N.Y.S.2d 156

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 2014
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Stanley Green, J.), entered February 25, 2013, which, to the extent appealed from as limited by the briefs, granted defendants-respondents’ (defendants) motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting their expert radiologist’s affirmation, which explained that defendant radiologist’s interpretation of a July 2008 Doppler study was within good and accepted medical practice and was not a proximate cause of the delay in plaintiff Patrick Lyons’s cancer diagnosis (see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]). Further, defendants’ expert showed that since the study encompassed Patrick’s upper leg, defendant radiologist could not have detected the cancer later diagnosed in the calf (see Foster-Sturrup v Long, 95 AD3d 726, 728 [1st Dept 2012]).

In opposition, plaintiffs failed to raise a triable issue of fact that any abnormality their expert radiologist found in the Doppler study was related to the cancer in Patrick’s lower left leg. Indeed, plaintiffs’ expert radiologist failed to indicate where the alleged abnormality appeared on Patrick’s left leg (see Carlton v St. Barnabas Hosp., 91 AD3d 561, 562 [1st Dept 2012]). Furthermore, the record contains no evidence that defendant radiologist’s alleged misreading of the Doppler study of Patrick’s upper left leg was a substantial factor in the delay in the cancer diagnosis of the lower left leg (see Dockery v Sprecher, 68 AD3d 1043, 1046 [2d Dept 2009], lv denied 17 NY3d 704 [2011]).

Concur — Sweeny, J.E, Renwick, Andrias, Richter and Kapnick, JJ.