Judge Edwards of Kings County Grants Summary Judgment in Favor of Medical Malpractice Defendants in Moore v. Volokh—Holds Plaintiff’s Experts Failed to Refute Causation Arguments

Written by: Jeffrey T. Wolber, Esq.

Editor: Nicole Callahan, Esq.

On June 11, 2021, Kings County Supreme Court Justice Genine Edwards issued a decision granting summary judgment in favor of a radiology center and its radiologist.  In this action, the plaintiff claimed a failure to diagnose stomach cancer following an abdominal contrast study. The radiology defendants moved for summary judgment, offering an expert affirmation stating that (1) there was no departure because the study was unremarkable and gave no indication of an abnormality in plaintiff’s stomach; (2) the radiologist’s interpretation of the study could not have caused the claimed injuries because a contrast study is not customarily used to rule out stomach cancer; and (3) the co-defendant physicians were aware that a negative, normal upper GI series does not exclude a diagnosis of ulcer or malignancy.

After considering the expert affirmations submitted in opposition, the Court concluded that the plaintiff failed to rebut the defendants’ prima facie showing. It explained:

Although plaintiff’s experts opine as to departure and causation, their submissions are insufficient to rebut defendants’ evidence of the lack of causation. Indeed, neither expert specifically addressed Dr. Novick’s opinion regarding the contrast study’s inability to rule out stomach cancer. Moreover, neither expert addresses co-defendant Dr. Makalatia’s deposition testimony regarding same. Furthermore, Dr. Haber’s opinion that a properly performed contrast study would have changed the outcome is premised on a string of assumptions. Particularly, Dr. Haber opined that a properly performed contrast study would have resulted in better visualization of the mucosal pattern, which would have led to it’s realization by Dr. Weiner, which would have led to a request for an upper endoscopy and, ultimately, a timely diagnosis. Additionally, Dr. Hirschman’s opinion that plaintiff had stage 1B stomach cancer at the time of the contrast study is not supported by any evidence in the record (internal citations omitted).

The recitation of the law in this trial court decision regarding the sufficiency of expert affirmations may be a helpful guideline to the evidentiary support and opinions needed by experts, and particularly beneficial to any medical malpractice defendant when replying to an opposition on a motion for summary judgment. Specifically, it addresses (1) the failure to respond to a key argument relating to a material fact; (2) basing an opinion on speculative assumptions; and (3) the lack of evidentiary support in the record. These deficiencies can be common in expert affirmations and dispositive motion papers and attorneys should be prepared to highlight them for the court.

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Citation: Moore v. Volokh, 2021 NY Slip Op 50541(U) (N.Y. Sup. Ct., Kings Jun. 11, 2021)