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QUESTION OF FACT WHETHER DEFENDANT NEUROLOGIST AND DEFENDANT CARDIOLOGIST WERE JOINTLY DIAGNOSING AND TREATING PLAINTIFF FOR HER STROKE; QUESTION OF FACT WHETHER THE NEUROLOGIST SHOULD HAVE ENSURED THAT A TEST ORDERED BY THE NEUROLOGIST, BUT TO BE PERFORMED BY THE CARDIOLOGIST, WAS DONE WITHIN 48 HOURS (FIRST DEPT),

The First Department, reversing Supreme Court, determined the defendant doctors’ motions for summary judgment in this medical malpractice case should not have been granted. There was a question of fact whether defendants were jointly diagnosing and treating the plaintiff. Defendant neurologist ordered a trans-esophageal electrocardiogram (TEE), to be done by a cardiologist, to determine the origin of plaintiff’s stroke. Plaintiff alleged defendant neurologist should have made sure the TEE was performed immediately. The TEE was performed more than two week’s after plaintiff’s initial stroke:

Plaintiffs allege that defendants were negligent for scheduling a TEE, the definitive diagnostic tool to detect the presence of atrial clots, more than two weeks after the patient’s initial stroke was confirmed and she was referred to the cardiology defendants. Plaintiffs allege that defendants should have scheduled the TEE to take place within 48 hours, or, alternatively, placed the patient on anticoagulants as a prophylactic measure.

The expert affidavit submitted by plaintiff raises an issue of fact whether the neurology defendants retained a duty to ensure that the patient received a timely TEE insofar as Dr. Xie referred her to the cardiology defendants as part of his overall neurological assessment, and he continued to manage her condition throughout. Under these circumstances, questions exist whether defendants were engaged in “joint action in diagnosis or treatment” so as to make it appropriate to impose liability on one for the negligence of the other … . Lin v Yi Xie, 2019 NY Slip Op 08943, First Dept 12-12-19

 

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