Senior Trial Partner Peter T. Crean, Partners Emma B. Glazer, Kathryn R. Baxter and Associate Gabrielle F. Murray obtained summary judgment in Westchester County on behalf of our client, a urologic surgeon, who plaintiff alleged failed to remove a tumor from the kidney during a partial nephrectomy. Intraoperative pathology of the resected lesion was equivocal. A follow-up scan after the surgery revealed the mass remained in the kidney, and it was then surgically removed several months later. The patient did not require any further treatment.
MCB moved for summary judgment with the support of a urologic expert, who opined that it was reasonable for our client surgeon not to remove the mass during the first surgery as it can be difficult to translate the location of the mass on preoperative imaging into the actual location of the mass in the kidney. In opposition, plaintiff did not submit an expert affirmation but instead focused on the plaintiff’s own deposition, where he testified that the surgeon told the plaintiff that he should have checked the other side of the kidney, and that this ‘admission’ was sufficient to raise a triable issue of fact without an expert affirmation. In reply, MCB argued that the plaintiff’s failure to have an expert in opposition was fatal and summary judgment must be granted. MCB also argued that any hearsay testimony is insufficient to bar summary judgment if it is the only evidence submitted.
The Court agreed with MCB’s position and granted summary judgment on behalf of our client, dismissing this case in its entirety.