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Alvarez v. Prospect Hosp.

Court of Appeals of New York

October 6, 1986, Argued ; November 11, 1986, Decided

No Number in Original


 [*322]   [**572]   [***924]  OPINION OF THE COURT

In this medical malpractice action, the Appellate Division has affirmed Supreme Court's denial of defendant Stark's motion for summary judgment and has granted leave to appeal [****6]  to this court on the certified question: "Was the order of Supreme Court, as affirmed by this Court, properly made?" For the reasons that follow, we reverse the order of the Appellate Division, grant defendant Stark's motion for summary  [**573]  judgment, and answer the certified question in the negative.

Plaintiff Maria Alvarez was admitted to Prospect Hospital twice in 1978 and twice in 1979, each time complaining of abdominal pain. Dr. Stark, as the chief of radiology at the hospital, interpreted several radiological studies performed on plaintiff during these visits. As relevant here, during plaintiff's second visit to the hospital in 1978, Dr. Stark interpreted a barium enema X ray as revealing "cecal neoplasm" of the  [*323]  cecum of the colon, and so indicated in his written report transmitted to plaintiff's attending physician. Plaintiff was discharged from the hospital a short time later with a diagnosis of gastroenteritis. During plaintiff's second visit in 1979, Dr. Stark again interpreted a barium enema X ray of the plaintiff and again made a finding of "cecal neoplasm", which was indicated in his written report again transmitted to plaintiff's attending physician.  [****7]  A short time later, plaintiff underwent surgery to remove a malignant growth in her colon.

This action was thereafter commenced against the hospital and nine physicians, including Dr. Stark. Plaintiff's amended complaint alleges, in general and unparticularized terms, that the medical care and treatment rendered by each defendant "was so negligent, reckless and careless as to constitute the * * * care and treatment as negligence, carelessness, recklessness, misfeasance, malfeasance and malpractice". In her bill of particulars, plaintiff alleged that she was unable to state with exactitude which specific negligent acts were performed by each particular defendant but claimed that "defendants violated every known medical standard in existence at the time of plaintiff's care and treatment" and in over three pages of boilerplate allegations described acts and omissions constituting medical malpractice. Plaintiff relied almost entirely upon Dr. Stark's reports indicating the presence of a cecal neoplasm in order to establish her claim of malpractice for "failing to discover and/or treat the nature and cause of lesions and/or irregularities noted in barium enemas", "failing to explain,  [****8]  attempt to explain, or perform tests, procedures, examinations, and/or surgery which would have explained the inconsistency between the normal colonoscopic examination of plaintiff and the lesions and/or irregularities noted upon the barium enema(s) performed" and "failing to determine the origin, nature and/or cause of a lesion which was found in a barium enema".

Following completion of his examination before trial, Dr. Stark moved for summary judgment, including in his motion papers an affirmation of his attorney, to which were attached the relevant hospital records and portions of his deposition testimony. The attorney's affirmation pointed out that plaintiff had adopted Dr. Stark's interpretations of the barium enema X rays as the basis for her claim against the other defendants that there was a failure to diagnose the cecal neoplasm at an early stage of her treatment. Counsel argued that because  [*324]  plaintiff had not alleged in either her complaint or bill of particulars that Dr. Stark's interpretation of the X rays was erroneous or incomplete, judgment as a matter of law was warranted. It was argued that the hospital records supported the conclusion that Dr. Stark [****9]  had made a timely and accurate diagnosis which formed the basis for plaintiff's allegations of malpractice against her treating doctors. Dr. Stark's deposition testimony asserted that his diagnosis was correct and that, as a radiologist, he is not required to treat patients and indeed never performed a physical examination on the plaintiff.

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68 N.Y.2d 320 *; 501 N.E.2d 572 **; 508 N.Y.S.2d 923 ***; 1986 N.Y. LEXIS 20561 ****

Maria Alvarez, Respondent, v. Prospect Hospital et al., Defendants, and Jesse D. Stark, Appellant. (And a Third-Party Action.)

Prior History:  [****1]  Appeal, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered December 26, 1985, which affirmed an order of the Supreme Court at Special Term (Anthony J. Mercorella, J.), entered in Bronx County, denying a motion by defendant Jesse D. Stark for summary judgment. The following question was certified by the Appellate Division: "Was the order of the Supreme Court, as affirmed by this Court, properly made?"

 Alvarez v Prospect Hosp., 115 AD2d 444.

Disposition: Order reversed, with costs, defendant Stark's motion for summary judgment granted, and question certified answered in the negative.


malpractice, summary judgment motion, summary judgment, deposition testimony, bill of particulars, affirmation, allegations, fractures, barium, enema, matter of law, radiologist, attending, records

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Burdens of Proof, Motions for Summary Judgment, Opposing Materials, Supporting Materials, Torts, Malpractice & Professional Liability, Healthcare Providers, Healthcare Law, Healthcare Litigation, Actions Against Healthcare Workers, Doctors & Physicians