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Expertly Explained (NY)

February 20, 2020

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<p style="text-align: justify;">The New York First Department recently held in<em> <a href="">Perez v. 139 Med Facility PC</a>,</em> that the defendants’ failure to order a diagnostic work-up of plaintiff’s decedent, including a chest x-ray, constituted a deviation from the standard of care sufficient to constitute a triable issue of fact and warranted reversal of the trial court’s grant of summary judgment to the defendants.</p>
<p style="text-align: justify;">In <em>Perez</em>, the plaintiff, the Estate of decedent Ramona Perez, filed this medical malpractice action against 139 Medical Facility, a medical group in Manhattan where Ms. Perez was treated from 2008 to 2013.  In 2013, Ms. Perez was diagnosed with metastasized stage IV lung cancer and subsequently succumbed to the condition.  Her Estate came to believe that the failure of 139 Medical Facility to give her a chest x-ray constituted medical malpractice, and the lawsuit was initiated.  139 Medical Facility subsequently moved for summary judgment and dismissal of claims against them, which the trial court granted.</p>
<p style="text-align: justify;">The First Department reversed, reaffirming the prior decision of <em>McManus v. Lipton</em>, on the basis that the plaintiff’s expert’s affirmation was sufficient to defeat summary judgment dismissal of the claims related to the failure to perform the chest x-ray because it contained “adequately detailed assertions”, which were predicated on “specific factual evidence, and were not merely speculation.”</p>
<p style="text-align: justify;">The defense bar should take note of this threshold when retaining experts.  Further this case illustrates that the defense bar should also ensure that its defense experts draft reports to meet this standard, as well as note this as a potential ground upon which to attack inadequate plaintiff expert affirmations.</p>
<p style="text-align: justify;">Thanks to Shira Straus for her contribution to this post.  Please email <a href="">Colleen E. Hayes</a> with any questions</p>


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