New York Appellate Court Affirms Orthopedic Surgeon Not Liable To Patient For Failure To Diagnose Lung Cancer

162017_132140396847214_292624_nThe Supreme Court of the State of New York Appellate Division, Second Judicial Department (“New York Appellate Court”) held in its decision filed on May 10, 2017 that the defendant orthopedic surgeon’s duty of care as an orthopedic surgeon did not extend to the alleged departures in failing to discover the plaintiff’s lung cancer. The New York Appellate Court further held that the defendant radiologist’s interpretation of the plaintiff’s shoulder MRI did not depart from the radiologic standard of care, and that the plaintiff’s tumor would present on an MRI “as a mass in the apex of the lung” and that none of the MRI films interpreted by the defendant radiologist on August 7, 2007 showed the apex of the lung.

The plaintiff had filed her New York medical malpractice lawsuit against the orthopedic surgeon, the radiologist, and their respective medical practices for medical malpractice and lack of informed consent, alleging that the defendant radiologist negligently failed to timely identify a malignant process in her left lung as evidenced by an MRI performed on or about August 7, 2007, and that the defendant orthopedic surgeon departed from accepted medical practice in, among other things, misinterpreting X rays of her shoulder, failing to document any pathology in the lung, failing to diagnose lung cancer, and negligently diagnosing shoulder impingement syndrome and rotator cuff pain.

The defendant orthopedic surgeon and his experts contended that the plaintiff remained under the care of her primary care physician, who had referred the plaintiff to the defendant orthopedic surgeon after diagnosing a rotator cuff tear, and that the defendant’s role was limited to evaluating and treating the plaintiff’s orthopedic issues. They further contended that the defendant orthopedic surgeon properly diagnosed the plaintiff with left rotator cuff disorder, and that the plaintiff’s symptoms, a physical examination, and positive findings on X rays and an MRI of the left shoulder were consistent with his impression of shoulder impingement syndrome. In addition, the defendant orthopedic surgeon’s expert opined, among other things, that the defendant, as an orthopedist, appropriately obtained X rays of the plaintiff’s left shoulder that were optimized for the bone and did not show any evidence whatsoever of a lung tumor.

The New York Appellate Court stated that the plaintiff’s expert, a board-certified radiologist, did not indicate any familiarity with the standards of orthopedic care and that the expert’s opinion that the defendant orthopedic surgeon assumed a duty to discover the plaintiff’s lung cancer was a bare legal conclusion that is unsupported by the record and insufficient to raise a triable issue of fact.

With regard to the liability of the defendant radiologist, the New York Appellate Court stated that under the circumstances, the opinion of the plaintiff’s expert radiologist that the plaintiff’s tumor was visible on the MRI films taken in August 2007 as “a left lung mass . . . in the lateral left upper lobe adjacent to the chest wall” was conclusory and failed to raise a triable issue of fact as to whether the defendant radiologist departed from accepted medical practice (none of the MRI films interpreted by the defendant radiologist in August 2007 showed the apex of the lung, and the lateral, upper part of the lung seen on some of the August 2007 MRI images was not the apex of the lung).

The New York Appellate Court therefore affirmed summary judgment granted to the defendants.

Source Donnelly v. Parikh, 2017 NY Slip Op 03731.

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This entry was posted on Saturday, June 3rd, 2017 at 5:34 am. Both comments and pings are currently closed.

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