Summary Judgment Dismissal


Raphael Berman, Joseph Shmulewitz and Mandy Nguyen recently obtained summary judgment dismissal on behalf of an attending orthopedist in a medical malpractice case venued in Queens County Supreme Court. The plaintiff-mother claimed a failure to diagnose and treat her daughter’s osteosarcoma (bone cancer) of the left leg, resulting in multiple surgeries and a leg length discrepancy.


Justice Peter J. O’Donoghue agreed with defendant’s contention that plaintiff’s pediatric hematology/oncology expert did not lay the requisite foundation to render an opinion as to the standard of care for orthopedists. Moreover, Justice O’Donoghue found that plaintiff’s expert failed to rebut defendant’s argument regarding lack of causation. In his Decision & Order, Justice O’Donoghue dismissed the case in its entirety and concluded that plaintiff’s expert failed to articulate how the infant-plaintiff’s outcome would have differed with an earlier diagnosis.