| Aparicio v Goldberg |
| 2012 NY Slip Op 02610 [94 AD3d 502] |
| April 10, 2012 |
| Appellate Division, First Department |
| Ada Pretto Aparicio, Appellant, v Gary Goldberg,Respondent, et al., Defendants. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Robert A. Spolzino ofcounsel), for respondent.
Judgment, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered November 22,2010, dismissing the complaint pursuant to an order, same court and Justice, entered November10, 2010, which granted defendant Dr. Gary Goldberg's motion to set aside the verdict,unanimously affirmed, without costs.
In this medical malpractice action, plaintiff Ada Pretto Aparicio alleges that defendant wasnegligent in his treatment of decedent May Aparicio for a form of abdominal cancer, known aspseudomyxoma peritonei. Defendant performed surgery on decedent in November 1997,removing, inter alia, tumors from her abdomen. Over the next several years, defendant monitoreddecedent's health, ordering tumor marker blood tests and CT scans to detect the return of disease.He testified that, although blood tests performed in June 2000, December 2000 and March 2001revealed increasing levels of tumor markers, and a June 2001 CT scan showed recurrence ofdecedent's disease, his treatment plan was to intervene surgically only in the event that decedentbecame symptomatic, as surgery would only be palliative in nature. Defendant stopped treatingdecedent in May 2003 and in August 2003, another physician performed surgery in anunsuccessful attempt to remove or "debulk" decedent's tumor. She died approximately six weekslater.
At trial, plaintiff's experts opined that defendant's failure to perform a second surgery after arise in tumor markers and the results of the June 2001 CT scan constituted a deviation fromaccepted medical practice. While defendant's experts disagreed with plaintiff's experts, theweight to be accorded to conflicting expert testimony is within the province of the jury (see Torricelli v Pisacano, 9 AD3d291 [2004], lv denied 3 NY3d 612 [2004]). The jury clearly credited the testimonyof plaintiff's experts on the issue of deviation from the standard of care and its determination onthat issue was not one that "could not have been reached on any fair interpretation of theevidence" (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995] [internal quotationmarks omitted]).[*2]
However, plaintiff failed to establish that defendant'snegligence was "a substantial factor in producing the injury" as the "injury [wa]s one whichmight naturally occur" in the progress of decedent's disease and in the absence of negligence(Mortensen v Memorial Hosp., 105 AD2d 151, 158 [1984]). Plaintiff's experts'speculation and conclusory assertions that decedent would have otherwise had a more favorableprognosis is insufficient to establish causation (see Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]; Rodriguez v Montefiore Med. Ctr., 28AD3d 357, 357-358 [2006]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Andrias, J.P., Friedman, Acosta, Freedman and Richter, JJ.