Senior Trial Partner Rosaleen T. McCrory, Partner Anthony M. Chionchio and Associate Joseph P. Ennis successfully secured summary judgment in a case involving a then 39-year-old Plaintiff alleging a delay in the diagnosis of an Achilles tendon injury, failure to order and perform an MRI, and negligent ordering of physical therapy without diagnosis, resulting in a partial tendon tear and the need for surgical intervention.
We moved for summary judgment utilizing an Affirmation from an orthopedic surgery expert in support. We argued that our client's workup of the patient was appropriate and that the diagnosis of Achilles tendonitis was reasonable given the patient's overall clinical presentation, including findings upon physical examination which included inspection, palpation, range of motion, provocative testing and x-ray imaging which were negative thereby establishing that there was not a complete rupture of the Achilles tendon. Accordingly, we asserted that the decision to refer the patient for physical therapy without first obtaining an MRI was entirely reasonable, appropriate, within the standard of care and was not contraindicated. Moreover, we contended that our client's treatment plan included a referral for an MRI in the event the plaintiff's condition did not improve with physical therapy. Finally, we argued that the referral for physical therapy did not result in any progression or worsening of plaintiff's underlying injury, as surgery would have been an option for the plaintiff regardless of when the diagnosis of a partial Achilles tendon tear was made.
In dismissing the action, the Court agreed with our argument that plaintiff’s expert, who specializes in psychiatry and neurology, was not qualified to comment on the standard of care as it related to orthopedic treatment and surgery. The Court determined that plaintiff’s expert failed to lay the requisite foundation supporting there liability of the opinion rendered thereby rending the expert Affirmation to have no probative value. Furthermore, the Court ruled that the opinions raised by plaintiff’s expert in opposition were insufficient to raise a triable issue of fact. Namely, plaintiff’s expert solely stated in conclusory terms that the plaintiff was improperly diagnosed with Achilles tendonitis rather than being sent for an MRI. The Court pointed out that plaintiff’s expert entirely expressed bare conclusory assertions of malpractice without stating what constituted good and accepted medical practice under these circumstances. Finally, the Court determined that plaintiff’s expert was entirely silent on the issue of proximate causation and failed to rebut the prima facie showing of the defendants.