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NY: failure to inform patient of risks of surgery: Dr.'s motion for summary judgment denied.

CASE FACTS: From October 12, 1995, until May 27, 1997, Elaina Lucia received medical treatment from Drs. Michael Kelly, Susan Guralnick, Latha Chandran, Jignesh Dalal, Max April, Wesley Carrion, Alan Baldridge, New York Spine and Brain Surgery, P.C., and Brook Children's Service, P.C. The patient sued all of those named alleging malpractice by the defendants in rendering medical treatment to her regarding what appeared to be a Chiari malformation with a nasopharyngeal sinus tract. The patient alleged that the defendants negligently rendered medical care and treatment to her causing her to suffer severe and irreparable injuries. The patient also alleged that she was never advised of the possible risks and dangers or the possibility of permanent damage resulting from the treatment rendered, and that had she been fully informed, she would not have consented to such treatment. Specifically, as to Dr. April, the bill of particulars alleged, inter alia, that he failed to timely and properly recognize the significance of, determine the etiology of, and act upon the plaintiff's complaints of nausea, weight loss, and vomiting; failed to timely refer her to a neurologist; failed to timely and properly formulated an appropriate differential diagnosis; misdiagnosed the plaintiff's true condition; failed to timely and properly order appropriate blood testing, CT scans, MRIs, and x-rays; performed transpalatal sinus repair surgery in a negligent manner; negligently severed a nerve in the plaintiff's palate; failed to timely diagnose the presence of a cerebrospinal fluid leak; and failed to render appropriate preoperative, operative and postoperative care and treatment. Dr. April moved for summary judgment to dismiss all claims against him. In support thereof he submitted his own affidavit, a copy of the pleadings, a verified bill of particulars, and two operative reports from University Hospital, where the surgery was performed.

COURT'S OPINION: The Supreme Court of New York denied Dr. April's motion for summary judgment to dismiss all claims against him and to amend the caption of the case to reflect that he was not a party in the case. The court held that Dr. April's affidavit was wholly conclusory and that he failed to meet his burden of showing an absence of medical malpractice. The court noted that Dr. April asserted that the only thing he did was an endoscopy, and that he did it correctly. The court observed that Dr. April gave no details as to how the endoscopy was performed, what he found, what his assessments were, what he communicated to the other physicians in the operating room, how the plaintiff's care was handed over to other physicians. He clearly failed to meet the criteria for a motion for summary judgment. Lucia v. Kelly-NY-0119.291 (11/25/2008)--NY

Meet the Editor & Publisher: A. David Tammello, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island Firm of A. David Tammello & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousand of articles, as well as his achievement as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Laywers, Marquis Who's Who in America Law, Who in America and Who's Who in the World.
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Title Annotation:Medical Law Cases of Note
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Article Type:Case overview
Date:Jan 1, 2009
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