Summary Judgment Dismissal


HPM&B recently obtained summary judgment dismissal on behalf of a gynecologist and surgeon in Kings County Supreme Court. Plaintiff alleged that the defendants failed to timely diagnose breast cancer based upon a mammogram that revealed suspicious calcifications but did not identify a mass. Plaintiff claimed that defendants delayed the diagnosis of Plaintiff’s breast cancer by ordering further imaging studies of the breast to evaluate the suspicious findings and search for a target to biopsy. Defendants argued, persuasively that this additional imaging confirmed a Stage 2 cancer in the breast where there was a suspicious finding and it revealed Plaintiff also had a Stage 1 cancer in the contralateral breast, where there had been no prior indication of cancer based upon past breast imaging. Defendants’ motions were made with expert support in gynecology and surgery, establishing that Defendants met the standard of care and that diligent workup resulted in early detection of a previously unknown tumor. In opposition to the motion, Plaintiff abandoned the claims against the gynecologist. Plaintiff opposed the motion with an expert radiologist. However, the Court agreed with our arguments that Plaintiff’s radiology expert failed to lay a foundation for opining outside his/her area of expertise and that this expert’s opinions were otherwise conclusory, failed to indicate that he/she appreciated all of the relevant evidence and did not opine on causation. Accordingly, this failure to diagnose cancer case was dismissed in its entirety.