| Curry v Dr. Elena Vezza Physician, P.C. |
| 2013 NY Slip Op 03163 [106 AD3d 413] |
| May 2, 2013 |
| Appellate Division, First Department |
| Saundra Curry, as Executrix of Doris Beverly Burton,Deceased, Appellant, v Dr. Elena Vezza Physician, P.C., et al.,Respondents. |
—[*1] Dwyer & Taglia, New York (Peter R. Taglia of counsel), for respondents.
Judgment, Supreme Court, Bronx County (Howard H. Sherman, J.), enteredDecember 30, 2011, dismissing the complaint, and bringing up for review an order, samecourt and Justice, entered on or about December 14, 2011, which, after a jury verdict inplaintiff's favor, granted the motion of defendants Dr. Elena Vezza Physician, P.C. andElena Lorraine Vezza (Dr. Vezza) for judgment notwithstanding the verdict,unanimously affirmed, without costs. Appeal from the above order unanimouslydismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff's decedent, Doris Beverly Burton, while a patient of defendant Dr. Vezza,underwent an echocardiogram in February 2007, following complaints of dizzy spells,confusion, and visual changes. The echocardiogram was normal, but for the presence of abrightly refractive narrow linear density traversing the region of the right atrium-rightventricle. The reading cardiologist observed that the anomaly "requir[ed] furtherinvestigation and clinical correlation; chest CT and/or chest x-ray may be indicated." Dr.Vezza concluded, based upon the location and description of the anomaly, that it was anartifact having to do with the manner in which the test was performed, not the plaintiff'sphysiology, and not requiring further diagnostic testing. In 2009, plaintiff was diagnosedwith Stage IV lung cancer.
Liability is not supported by an expert offering only conclusory assertions and merespeculation that the condition could have been discovered and successfully treated hadthe doctors not deviated from the accepted standard of medical practice (see Rodriguez v Montefiore Med.Ctr., 28 AD3d 357 [1st Dept 2006]; Bullard v St. Barnabas Hosp., 27 AD3d 206 [1st Dept2006]). Moreover, failing to investigate an otherwise unindicated disease is notmalpractice (see Rivera vGreenstein, 79 AD3d 564 [1st Dept 2010]).
Plaintiff did not submit legally sufficient evidence in support of her claim ofmalpractice. Defendant's expert, a physician board certified in internal medicine,cardiology, cardiac imagining, and nuclear cardiology, testified that the "brightlyrefractile" line on the echo was an artifact, and since a line of that type did notcorrespond to any known chest pathology, there was no need to investigate it via X ray orCT scan. He further testified that the finding was unrelated [*2]to plaintiff's lungs in general, or the primary presumed siteof her cancer, which was not even visible within the scan. Plaintiff offered no evidenceto rebut this testimony and her expert conceded that he could not say within a reasonabledegree of medical certainty that the anomaly had anything to do with plaintiff'ssubsequent cancer. Instead, the expert essentially opined that Dr. Vezza was guilty offailing to discover the cancer by accident. On cross-examination, plaintiff's expertultimately conceded that, if the anomaly was, in fact, an artifact, then a failure to performadditional diagnostic testing would be "fine."
And while plaintiff's expert testified that plaintiff's cancer would have been a onecentimeter localized Stage I lesion at the time of the echocardiogram, detectable by CTscan, he testified only that he based his opinion on his experience as an oncologist as tohow cancers progress, with insufficient further details. And since the pathologist did notnote the cell's specific biology in the biopsy report, plaintiff's expert could not point toany evidence concerning how aggressive plaintiff's particular cancer was. Thus, hisopinion concerning when the cancer developed, and what size it would have been in2007, was pure speculation, insufficient to support the jury's finding of causation (seeRodriguez, 28 AD3d at 357).
Plaintiff's remaining contentions are either unavailing or rendered moot by thisdecision. Concur—Tom, J.P., Friedman, Sweeny and Feinman, JJ.