A.M. v Andrade

A.M. v Andrade 2017 NY Slip Op 07691 Decided on November 2, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 2, 2017
Tom, J.P., Renwick, Mazzarelli, Oing, Singh, JJ.
4887 350551/08

[*1]A.M., etc., et al., Plaintiffs-Respondents,

v

Joseph R. Andrade, M.D., Defendant, Chai-Luk Wo, M.D., Defendant-Appellant.

Dwyer & Taglia, New York (Peter R. Taglia of counsel), for appellant.

Jonathan C. Reiter Law Firm, PLLC, New York (Jonathan C. Reiter of counsel), for respondents.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 2, 2016, which denied the motion of defendant Chai-Luk Wo, M.D. for summary judgment dismissing the complaint as against him, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiffs allege that defendant, an ophthalmologist who saw infant plaintiff once and diagnosed him with a cataract, was negligent in failing to advise plaintiffs to urgently seek follow-up care from a specific pediatric ophthalmologist. Issues of fact exist as to whether defendant departed from good and accepted medical practice (see generally Anyie B. v Bronx Lebanon Hosp., 128 AD3d 1, 2 [1st Dept 2015]). However, plaintiffs cannot establish proximate causation.

Although defendant's failure to urge plaintiffs to promptly consult with a specific subspecialist may have resulted in a delay in intervention until the child's condition had worsened beyond repair, this was not the reason the child did not undergo the purportedly necessary surgery. Rather, the child did not undergo surgery because, when he later consulted with two pediatric ophthalmologists, they both determined that his cataract was congenital and, as a result, surgery would not be effective. There is no basis to infer that these diagnoses would have been different had the pediatric ophthalmologists examined the child earlier. As such, it is purely speculative that an earlier referral would have resulted in different treatment or a better result (see Berlinger v Kraft, 60 AD3d 489, 491 [1st Dept 2009]; Bartha v Lombardo & Assoc., 212 AD2d 494 [2d Dept 1995]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 2, 2017

CLERK