Senior Partner Kenneth Larywon, and Partners Gregory Cascino and Karen Corbett previously obtained summary judgment on behalf of our hospital client and one of its emergency department attending physicians, which has now been affirmed by the Second Department. Plaintiff alleged that MCB’s clients failed to diagnose her with an ischemic stroke and administer thrombolytic therapies, including tissue plasminogen activator (“TPA”). In the emergency room, Plaintiff reported “feeling dizzy” and fatigued since she woke up that morning, however, when she presented to the hospital over 16 hours later, she did not have slurred speech, facial asymmetry or one sided weakness. After being worked up, the patient was diagnosed with and treated for anxiety and vertigo, before being discharged. The following afternoon she began to display right-sided weakness and slurred speech, and a CT performed at another hospital revealed an ischemic stroke. Plaintiff claimed that a doctor at this second hospital told her that “whatever symptoms she had the day before, that’s more or less when [she] had the stroke”.
MCB moved for summary judgment, submitting an affirmation from an emergency medicine expert who explained that “general fatigue and dizziness, in the absence of any other signs of stroke, are not strongly suggestive of stroke”. Moreover, even if Plaintiff had been diagnosed with a stroke at our hospital her outcome would have been the same because she presented more than 16 hours after the onset of her symptoms. Thus, not only was she outside the window to administer TPA, but administering thrombolytics under these circumstances could have induced brain hemorrhage or even death. In opposition, Plaintiff’s expert opined that she was not actually having a stroke at the time of her presentation to our hospital but was instead having a transient ischemic event (“TIA”) and should have been administered anticoagulants. Plaintiff’s expert also opined that she suffered the stroke at some point between her discharge from our hospital and presentation to a different hospital the following day. The Queens County Supreme Court granted our motion and dismissed Plaintiff’s claims, and Plaintiff appealed.
This dismissal was affirmed by the Second Department. In a lengthy, detailed decision, a 3-Justice majority of that Court found that when viewed against Plaintiff’s specific allegations of malpractice, our expert established that the failure to administer TPA at our hospital was not a departure from accepted standards of care and could not be a proximate cause of Plaintiff’s injuries, since such therapy could not have been safely administered at the time of her presentation. The Majority further found that Plaintiff failed to raise a triable issue of fact, because her expert failed to support the theories of liability alleged in her pleadings regarding the alleged failure to diagnose a stroke or to administer TPA. Rather, Plaintiff’s expert advanced an entirely new theory of liability for the first time in opposition to the motion. Since this is procedurally improper, the Majority refused to consider this and held that the Supreme Court properly dismissed Plaintiff’s claims.