Rodriguez v. Montefiore Medical Center

28 A.D.3d 357, 814 N.Y.S.2d 59

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 2006
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about January 13, 2005, which denied the motion by the Montefiore defendants, Mohan and Rubin for summary judgment, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed as against them. The Clerk is directed to enter judgment accordingly.

Appellants made out a prima facie case by establishing that they did not commit medical malpractice in their treatment of plaintiff. The burden then shifted to plaintiff to adduce admissible proof raising a triable issue of fact. However, plaintiffs expert offered only conclusory assertions and mere speculation that her cancer would have been discovered earlier and would not have spread if appellants had more aggressively pursued her, and expedited and tracked her follow-up visits more actively {see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Bullard v St. Barnabas Hosp., 27 AD3d 206 [2006]; DeFilippo v New York Downtown Hosp., 10 AD3d 521, 523 [2004]). Furthermore, in concluding that plaintiffs cancer should have been discovered by December 1998, plaintiffs expert improperly relied on information which could not have been known to plaintiffs doctors during the time they treated her (see Lederman v Lawrence Hosp., 202 AD2d 198, 199-200 [1994]). Concur—Mazzarelli, J.P., Marlow, Nardelli, Gonzalez and McGuire, JJ.