PLAINTIFF’S EXPERT’S AFFIDAVIT WAS NOT CONCLUSORY AND SPECULATIVE; DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s (Falkovsky’s) motion for summary judgment in this medical malpractice case should not have been granted. Although the doctor made out a prima facie case demonstrating there was no departure form good and accepted medical malpractice, plaintiff’s expert raised questions of fact about whether defendant should have considered cardiac disease in his differential diagnosis:

[Plaintiff] presented to Falkovsky … with complaints of loss of taste and appetite for two weeks, the unintentional loss of ten pounds, and two episodes of dizziness and vomiting that resolved on their own. During a follow up visit on March 17, 2015, Falkovsky noted … that blood work had revealed that the decedent had anemia. Falkovsky believed the cause of the decedent’s symptoms was most likely a neoplasm, and referred the decedent to a gastroenterologist and a nephrologist. On March 19, 2015, the decedent was examined by a nephrologist, who noted … that the decedent had lower extremity edema. The decedent underwent an endoscopy with his gastroenterologist on March 25, 2015, which revealed … reflux and gastritis. A renal sonogram performed on April 11, 2015, showed that the decedent had a right renal cyst and a possible angeomyolipoma. The decedent died on April 16, 2015. An autopsy revealed that the decedent died as a result of atherosclerotic and hypertensive cardiovascular disease. * * *

… [T]he opinions of the plaintiff’s expert were not speculative and conclusory … . The plaintiff’s expert opined, inter alia, that Falkovsky departed from the standard of care by failing to include cardiac disease in his differential diagnosis based upon the decedent’s symptoms in light of his medical history, and failing to order proper tests or to refer the decedent to a cardiologist for cardiac-related tests, which resulted in a lack of proper treatment that could have prevented the decedent’s death. Shirley v Falkovsky, 2022 NY Slip Op 04659, Second Dept 7-20-22

Practice Point: A conclusory or speculative expert affidavit will not raise a question of fact in a medical malpractice case. Here plaintiff’s expert opined that defendant doctor should have considered cardiac disease in his differential diagnosis, based on plaintiff’s symptoms, which included swelling of the lower extremities. Plaintiff died from his cardiac disease. Supreme Court should not have found plaintiff’s expert’s affidavit to have been speculative and conclusory and therefore should not have granted the doctor’s motion for summary judgment.