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Polanco v. Reed - 2013 NY Slip Op 2317, 105 A.D.3d 438, 963 N.Y.S.2d 57 (App. Div.)

Rule:

Where oncological experts present competing opinions on causation, particularly about the progression of the disease, there is an issue of fact for a jury to decide.

Facts:

Plaintiff Carmen Polanco was diagnosed with stage IIB *** cancer in 2001 by nonparty Montefiore Hospital Center ("Montefiore"). She underwent a lumpectomy followed by radiation and chemotherapy. Polanco continued treating at Montefiore through 2006 at which time she transferred to defendant Martin Luther King, Jr., Health Center, a clinic affiliated with defendant Bronx-Lebanon Hospital Center, where she consulted with defendant Dr. Mary Reed, M.D. After discussing Polanco's history and hearing her complaints of back pain and pain in her right arm, Dr. Reed ordered a bone scan, a Positron Emission Tomography ("PET") scan and some other tests to "rule out metastasis." Polanco underwent all of the tests that Dr. Reed ordered and was given a negative result for recurrence of cancer. Polanco continued to get more tests within six months' time without any surgery, hormonal therapy or chemo therapy. It was only after Polanco changed doctors that she found out that her cancer had recurred. Polanco filed a medical malpractice lawsuit against defendants in New York state court. Defendants did not dispute that they departed from the accepted standard of care by incorrectly informing Polanco that her PET scan was negative for recurrent cancer, but argued that the six-month delay in notification did not cause Polanco any injury. The trial court granted defendants' motion for summary judgment dismissing the complaint. Polanco appealed.



Issue:

Was summary judgment in favor of defendants proper?

Answer:

No.

Conclusion:

The appellate court noted that Polanco provided the affidavit of an oncologist who opined that the departure from accepted standards of care were substantial factors in causing Polanco's pain and suffering, including increased breast pain, emotional trauma, unnecessary surgery to the lung, a reduced chance of recovery and the diminution of her life expectancy by 10 percent. The court held that the affidavit established the requisite nexus between the alleged malpractice and Polanco's injury, thereby rebutting defendants' prima facie showing. The trial court erroneously decided a disputed fact issue. Thus, the judgment was reversed and vacated, the motion for summary judgment was denied, and the complaint was reinstated. 



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