Bylander v Jahn

Bylander v Jahn 2017 NY Slip Op 08446 Decided on November 30, 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 30, 2017
Renwick, J.P., Manzanet-Daniels, Mazzarelli, Kahn, Moulton, JJ.
800031/12 -5090A 5090 5089

[*1] Yovanka Bylander, etc., Plaintiff-Appellant,

v

Anthony Jahn, M.D., et al., Defendants-Respondents.

Jaroslawicz & Jaros PLLC, New York (Natascia Ayers and David Tolchin of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for respondents.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about May 18, 2015, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied. Appeal from orders, same court and Justice, entered October 14, 2015 and October 16, 2015, which granted plaintiff's motion to reargue and adhered to the original determination, and denied her motion to renew, unanimously dismissed, without costs, as academic.

The record presents triable issues of fact as to whether defendant Anthony Jahn, M.D. departed from good and accepted medical practice (see Severino v Weller, 148 AD3d 272, 276 [1st

Dept 2017]). Defendants' experts opined that Dr. Jahn acted appropriately and consistent with the standard of care based on plaintiff's decedent's test results and presenting symptoms, which was mainly episodic dizziness. However, in opposition, plaintiff's experts opined, based on a review of the medical records, that decedent exhibited symptoms, such as episodic vision problems, dizziness, and imbalance, consistent with the presence of the brain aneurysm that eventually ruptured and caused his death. Plaintiff's experts further opined that Dr. Jahn should have referred decedent for a neurological consult or for additional neurological testing, which would have detected his unruptured cerebral aneurysm and permitted timely treatment. Plaintiff's experts further raised questions of fact as to whether Dr. Jahn failed to follow up on an abnormal finding on a videonystagmography test administered to decedent, consistent with a central nervous system disorder, by making appropriate referrals that would have led to the timely discovery of the aneurysm.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 30, 2017

CLERK