New York Appeals Court Restores Full Malpractice Claims Over Alleged Missed Lung Cancer Diagnosis

A New York appellate court reinstated all claims in a malpractice suit against Roswell Park Cancer Institute, finding issues of fact over whether its physician failed to timely detect a patient’s lung cancer. The estate of Michael X. Allman alleged negligent diagnosis and surveillance led to his death. While the trial court had granted partial summary judgment to Roswell Park, the Appellate Division, Fourth Department, held that the plaintiff’s expert — a board-certified oncologist — presented sufficient evidence of both deviation from the standard of care and causation to create a “classic battle of the experts.” The panel ruled these disputes must be decided by a jury, modifying the lower court’s order to deny summary judgment in full.

Case: Allman v. Roswell Park Cancer Institute CorP

Facts and procedural history: Michael X. Allman received treatment from the Roswell Park Cancer Institute Corp. prior to his death. The executrix of his estate later filed a malpractice suit against Roswell Park, asserting Allman’s treating physician had failed to timely detect his lung cancer.

Roswell Park moved for summary judgment dismissing the claims against it. Court of Claims Judge J. David Sampson granted the motion in part.

Analysis: The Appellate Division’s 4th Department said the motion should have been denied in full.

“[A] defendant moving for summary judgment in a medical malpractice action has the [initial] burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby,” the court said.

The court said Roswell Park met its initial burden through the submission of the treating physician’s expert affidavit, which was “detailed, specific and factual in nature” and addressed each negligence claim raised in the bill of particulars. The court said the burden then shifted to the executrix “to raise triable issues of fact by submitting an expert’s affidavit both attesting to a departure from the accepted standard of care and that defendant[‘s] departure from that standard of care was a proximate cause of the [alleged] injur[ies].”

The court said the executrix raised a triable issue of fact with respect to both deviation and proximate causation. Her expert, a board-certified general medical oncologist, laid a sufficient foundation to opine as to the standards of care applicable to both diagnostic pulmonary biopsies and the frequency of nodule surveillance, the court said. This expert raised triable issues of fact with respect to causation inasmuch as it “squarely oppose[d]” the treating physician’s expert affidavit with respect to the significance of the target nodule, resulting in “a classic battle of the experts that is properly left to a jury for resolution, the court.