Professional Negligence Law Reporter

A New York appellate court held that in a medical negligence case where the parties present conflicting medical expert opinions, summary judgment is not appropriate.

Here, a CT scan revealed that Doe had an abdominal mass. Physician Scott Tenner performed an endoscopy of Doe’s stomach, taking several biopsies. Doe was then diagnosed with adenocarcinoma and underwent chemotherapy and surgery. A pathology study taken on the mass led to the determination that it was not adenocarcinoma but a gastrointestinal stromal tumor, which required different treatment. Tenner then compared Doe’s DNA to the original biopsy and concluded that the adenocarcinoma diagnosis had been correct.

After Doe’s death, the administrator of his estate sued Tenner, alleging medical negligence and wrongful death. Tenner moved for summary judgment, arguing that he had correctly performed the endoscopy and biopsies and diagnosed Doe’s condition. The plaintiff countered that Tenner should have obtained and reviewed the CT scan results before the endoscopy and should have performed an endoscopic ultrasound and a repeat ultrasound. These departures led to a delayed treatment of the adenocarcinoma, the plaintiff asserted. The trial court denied the defense motion.

Affirming, the appellate court found that Tenner had met his prima facie burden of establishing judgment as a matter of law. Nevertheless, the court said, the plaintiff has raised a triable issue of fact by presenting the affidavit of a board-certified gastroenterologist who contradicted the conclusions of the defense experts that Tenner had not departed from the standard of care. Citing case law, the court concluded that summary judgment is not appropriate in medical negligence lawsuits where the plaintiff and defendant present conflicting medical expert opinions.

Citation: Buch v. Tenner, 2022 WL 1020778 (N.Y. App. Div. Apr. 6, 2022).

Plaintiff counsel: Aleksey Feygin, New York City.