| McManus v Lipton |
| 2013 NY Slip Op 04277 [107 AD3d 463] |
| June 11, 2013 |
| Appellate Division, First Department |
| Jeanne McManus, Individually and as Administratrix of theEstate of Denis McManus, Deceased, Respondent, v Mark S. Lipton, M.D., etal., Appellants. |
—[*1] David L. Taback, P.C., New York (Jennifer A. Fleming of counsel), forrespondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered February15, 2012, which denied defendants' motions to dismiss as time-barred any medicalmalpractice claims arising from care rendered before December 6, 2004, and forsummary judgment dismissing any surviving claims, unanimously modified, on the law,to grant the motion to dismiss plaintiff's medical malpractice claims, and otherwiseaffirmed, without costs.
Plaintiff commenced this action on June 6, 2007, alleging that defendant Liptondeparted from accepted medical practice by failing to order a diagnostic CT scan and apulmonological work-up when plaintiff's decedent presented to NYU Medical Center inSeptember 2004 with symptoms of shortness of breath and edema, inter alia. The2½-year statute of limitations on medical malpractice claims was not tolled by thecontinuous treatment doctrine for the period before December 6, 2004 becausedefendant's treatment of the decedent before that date was not for "the same, illness,injury or condition" that gave rise to this action (CPLR 214-a; see Young v NewYork City Health & Hosps. Corp., 91 NY2d 291 [1998]; Chestnut v Bobb-McKoy, 94AD3d 659, 661 [1st Dept 2012]). The decedent presented with myriad symptoms,including chest tightness after walking uphill, anemia, tooth complaints, heartburn, andgastrointestinal complaints; he did not present with symptoms typical of pulmonologicalproblems, such as coughing or wheezing, his chest was clear on x-ray, and the tightnessin his chest was consistent with his cardiac history.
However, defendants' motion for summary judgment was properly denied withrespect to plaintiff's wrongful death claim. That claim is not time-barred, since the statuteof limitations was tolled (see EPTL 5-4.1). While defendants offered a primafacie showing that Lipton did not depart from accepted medical practice by failing toperform diagnostic scans, since such scans were not warranted by the decedent'spresenting symptoms, a question of fact was created by the expert opinion offered byplaintiff (see Cruz v St.Barnabas Hosp., 50 AD3d 382 [1st Dept 2008]). Plaintiff's expert asserted thatthe failure to order a pulmonary work-up, including a CT scan, constituted a deviationfrom the standard of care, in view of the decedent's presenting symptoms of persistentchest complaints coupled with his past history of testicular cancer, his pastradiation treatment, his past history of smoking, and his family history, which wassignificant for lung and throat cancer—additional risk factors that increased hisrisk of lung cancer; the expert [*2]further asserted thatwithin a reasonable degree of medical certainty, a CT scan at that time would haverevealed the primary lung cancer at an early stage. These adequately detailed assertionswere sufficient to defeat summary judgment, since they were predicated on specificfactual evidence, and were not merely speculation (see Deutsch v Chaglassian, 71 AD3d 718, 719 [2d Dept2010]). Concur—Tom, J.P., Mazzarelli, Saxe and Manzanet-Daniels, JJ.