Maynard v Mount Sinai Doctors Brooklyn Heights
Attorneys and Parties
Brief Summary
Medical malpractice—whether an internist departed from accepted practice by not ordering a stat CT scan to rule out appendicitis and whether any delay proximately caused injury.
Granted defendants’ motion for summary judgment dismissing the medical malpractice cause of action.
The dismissal of the medical malpractice claim; the Appellate Division denied summary judgment and reinstated the claim.
Conflicting, non-speculative expert opinions created triable issues of fact on departure from the standard of care and causation; summary judgment is improper where expert opinions conflict.
Background
Plaintiff presented to internist Michael I. Kim with severe abdominal pain. Kim ordered blood work and suggested scheduling a CT scan. The next day, labs showed elevated white blood cells and neutrophils; plaintiff reported an intervening emergency room diagnosis of a urinary tract infection. Kim advised a CT if symptoms worsened. Two days later, plaintiff went to another emergency room and was diagnosed with acute appendicitis, peritonitis, and multiple abscesses. She was hospitalized for 10 days for drainage and intravenous antibiotics; appendectomy was deferred due to inflammation. Four months later she underwent laparoscopic appendectomy with lysis of adhesions and partial cecectomy. She sued for medical malpractice and lack of informed consent.
Lower Court Decision
After discovery, the Supreme Court, Kings County, granted defendants’ motion for summary judgment dismissing the medical malpractice cause of action, crediting defense expert opinions that plaintiff did not exhibit classic appendicitis signs, that a stat CT was not indicated initially or after labs in light of the UTI diagnosis, and that the fluid collection preexisted due to endometriosis and was not proximately caused by any delay.
Appellate Division Reversal
The Appellate Division dismissed the appeal from the order as subsumed by the judgment but reviewed the issues under CPLR 5501(a)(1) [permits review on an appeal from a final judgment of issues raised by prior nonfinal orders]. It reversed the judgment insofar as it dismissed the medical malpractice claim, holding that plaintiff’s expert raised triable issues by opining that the presenting symptoms warranted an immediate stat CT to rule out appendicitis both at the initial visit and upon receipt of lab results, and that the delay allowed infection and inflammation to progress, causing prolonged hospitalization and adhesions. Because the parties submitted conflicting, non-conclusory medical expert opinions, summary judgment was improper. The court denied summary judgment, reinstated the malpractice cause of action, and awarded one bill of costs to plaintiff.
Legal Significance
Reaffirms that in medical malpractice cases, credible conflicting expert affidavits on standard of care and causation preclude summary judgment. Also clarifies that an intervening diagnosis (such as a urinary tract infection) does not, as a matter of law, eliminate the need to rule out appendicitis when symptoms and labs reasonably suggest it; and confirms that issues decided in a nonfinal order are reviewable on appeal from the final judgment under CPLR 5501(a)(1).
Where a plaintiff offers a competent expert opinion that an internist deviated from accepted practice by not ordering a stat CT to rule out appendicitis and that the delay exacerbated injury, summary judgment must be denied because such dueling expert opinions create triable issues of fact.