Roth v. Velasquez
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Attorneys and Parties
Brief Summary
Medical malpractice arising from emergency-department evaluation of possible pulmonary embolism (PE), including whether the providers should have ordered a CT pulmonary angiogram (CTPA) during plaintiff's November 10, 2015 visit.
The trial court denied defendants' motion for summary judgment, finding that plaintiff's expert submission raised triable issues of fact on negligence and causation.
The Appellate Division modified the order by dismissing the complaint against Dr. Anthony Velasquez, M.D., while otherwise affirming the denial of summary judgment as to the hospital.
The court held that plaintiff's expert raised fact issues against the hospital by opining that plaintiff's presentation, Wells score, and post-imaging circumstances warranted further testing for pulmonary embolism (PE). But as to Dr. Velasquez individually, the expert relied on facts contradicted by the record, offered speculative and conclusory opinions, failed to rebut evidence that a CT pulmonary angiogram (CTPA) carried renal-risk concerns, and did not show that Dr. Velasquez proximately caused the delayed diagnosis because later treating physicians completed the workup and made the final testing decisions after his shift ended.
Background
Plaintiff alleged that when he presented to New York Presbyterian/Columbia University Medical Center on November 10, 2015 with pain and breathing-related complaints, defendants failed to diagnose a pulmonary embolism (PE). He claimed they should have ordered a CT pulmonary angiogram (CTPA), which his expert described as the gold standard for pulmonary embolism testing. Defendants argued there was no departure from accepted care and no causation. Plaintiff opposed with an expert affirmation from Dr. David A. Mayer, a general surgeon with extensive experience diagnosing and treating pulmonary embolism (PE), who opined that plaintiff's symptoms, Wells score of 4.5, electrocardiogram (EKG) findings, and the elimination of kidney stones after abdominal computed tomography (CT) required further evaluation for pulmonary embolism (PE).
Lower Court Decision
Supreme Court, New York County, denied defendants' summary judgment motion. It found that although the hospital had made a prima facie showing of entitlement to judgment, plaintiff's expert affirmation was sufficient to raise triable issues of fact regarding whether defendants failed to properly evaluate and diagnose pulmonary embolism (PE) and whether the delay caused preventable or mitigable injuries.
Appellate Division Reversal
The Appellate Division agreed that summary judgment was properly denied as to the hospital because plaintiff's expert created factual disputes over whether the hospital should have pursued a CT pulmonary angiogram (CTPA), whether reliance on the negative D-dimer test was misplaced because it was performed too early, and whether earlier diagnosis would have prevented or lessened plaintiff's injuries. However, it reversed as to Dr. Velasquez. The court found that the record showed plaintiff did not complain of chest pain to emergency medical services (EMS), in triage, or in the emergency-department records, and that Dr. Velasquez reasonably considered but found pulmonary embolism (PE) and acute coronary syndrome (ACS) unlikely during his limited involvement. The court also held that plaintiff failed to raise a fact issue on causation because later physicians reviewed the computed tomography (CT) results, reassessed for pulmonary embolism (PE), and decided not to order a CT pulmonary angiogram (CTPA) after Dr. Velasquez's shift had ended.
Legal Significance
The decision illustrates two key summary-judgment principles in New York medical malpractice litigation. First, an expert from a related specialty may be qualified to opine if the expert demonstrates sufficient experience with the condition at issue. Second, an expert affirmation will not defeat summary judgment against an individual physician if it is contradicted by the contemporaneous medical record, depends on hindsight, does not address material defense evidence, or fails to connect the physician's own conduct to proximate causation when later providers made the relevant treatment decisions.
A hospital may still face trial on a delayed-diagnosis theory where competing experts dispute whether additional pulmonary embolism (PE) testing was required, but an individual emergency physician can obtain dismissal if the plaintiff's expert opinion is unsupported by the record and cannot show that the physician's brief involvement caused the ultimate outcome.