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Successful Motion for Summary Judgment Results in Dismissal of Wrongful Death Action

July 21, 2020

Senior Partner Michael Sonkin and Partner Conrad Chayes, Jr.’s motion for summary judgment on behalf of our client, an Internist, was granted by the Hon. Justice Spodek in the Supreme Court, Kings County, resulting in the dismissal of all malpractice and wrongful death claims as against her.  This is an action brought on the behalf of a then-34 year old morbidly obese Decedent, wherein it is alleged that defendants negligently failed to diagnose and treat lower extremity thrombophlebitis during a period of treatment at the codefendant medical practice from 2013 to 2015.  The patient deceased in December 2015 secondary to pulmonary thromboembolism, and in addition to wrongful death claims, it was claimed that the Decedent provided financial and parental support to her then-14 year old daughter.  Plaintiff claimed that our Internist failed to recognize the signs and risk factors for deep vein thrombosis in the Decedent, who presented in August 2015 with shortness of breath upon exertion and a history of presenting to multiple emergency departments where she received relief from administration of bronchodilators and reported negative chest x-rays.  Our Internist immediately referred the Decedent for a PFT test and pulmonology workup with Codefendant.  The patient ultimately presented to the pulmonologist three months later, at which time she relayed a one-week history of shortness of breath. 

 

We argued, through multiple affirmations on behalf of our Board Certified Internal Medicine physician, that our client properly appreciated the Decedent’s history and clinical presentation, which in the absence of any leg swelling, tenderness, discoloration or other symptoms or risk factors for DVT/PE, was suggestive of a chronic or asthmatic process which did not warrant a cardiac referral.  Further, we differentiated the August 2015 complaints of shortness of breath from the “one week” history of shortness of breath complained of in December 2015, as the onset of a new condition.  This was supported further by the Death Certificate, which characterized Decedent’s December 2015 pulmonary embolism as a “recent” acute event.  We further highlighted the speculative nature of the Plaintiff’s expert’s purported opinions, as the expert opined our client should have referred the Decedent for a cardiac workup in August 2015 on the basis of the pulmonology consultation, which was not resulted until November 2015.  Additionally, we argued the Plaintiff’s Expert Affirmation must be disregarded as without basis in fact, as the expert opined these cardiac tests would have “likely” indicated the need for further testing, which “more likely than not” would have revealed DVT/PE.  Justice Spodek agreed, holding that the Plaintiff’s Expert’s opinions constituted conclusions based on speculation, misstatements of the facts, were without basis in medicine, and were insufficient to overcome the opinions set forth in our Expert Affirmation and Reply Expert Affirmation.   

 

Moreover, on the basis of the facts set forth in our Expert Affirmations, the Court also granted summary judgment to the Codefendant Nurse Practitioner, whose counsel moved using our own expert opinions in support.  The case will proceed against the Codefendant medical practice and pulmonologist. 

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