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New York Court Discusses Grounds for Granting Reargument on a Motion for Summary in Failure to Diagnose Case

Patients rely on doctors to provide adequate care, which includes properly diagnosing any injury or illness. If a doctor fails to diagnose a medical issue in a timely manner it can result in significant harm or even death and may be grounds for a medical malpractice action. In weighing whether you have sufficiently proven your treating physician’s failure to diagnose constitutes malpractice the court will assess the evidence produced by you and your physician. If the court negligently overlooks evidence of malpractice, such as an expert affidavit, it can result in an improper dismissal of your claim, as illustrated in a recent case decided by a New York appellate court.  If you or a loved one suffered harm due to a doctor’s failure to provide an accurate diagnosis, you should meet with a seasoned Rochester medical malpractice lawyer regarding the facts of your case and what you need to prove to recover damages.

Facts Regarding the Plaintiff’s Treatment

Reportedly, the plaintiff’s decedent underwent a gastric bypass, after which she treated with the defendant gastroenterologist at the defendant gastroenterology practice. She died shortly thereafter from a gastrointestinal hemorrhage. The plaintiff then filed a malpractice lawsuit against the defendant, alleging that the defendant failed to properly diagnose and treat the decedent with an anastomotic leak, resulting in her death. Following discovery, the defendants moved for summary judgment, which the court granted as to the defendant practice. The plaintiff filed a motion for reargument which the court granted. Upon reargument, the court vacated the order granting summary judgment, after which the defendant appealed.

Conflicting Expert Reports

Under New York law, whether to grant a motion for reargument is within the discretion of the court that decided the original motion. A court may choose to grant reargument where a party produces evidence the court overlooked or misunderstood pertinent facts and mistakenly decided the prior ruling. In the subject case, the court found that the trial court properly chose to grant reargument due to the fact it had previously overlooked an expert affidavit that the plaintiff submitted in support of his opposition to the motion for summary judgment, and therefore, incorrectly ruled the plaintiff failed to raise an issue of fact.

The court stated that in a medical malpractice case, the plaintiff must show a departure from the accepted standard of care and evidence that the departure caused the alleged harm. In turn, the defendant must either show that there was no departure or that the departure did not cause the harm the plaintiff suffered. The burden then shifts to the plaintiff to show a triable issue of fact. Here, the defendant set forth a prima facie case that it was not responsible for the plaintiff’s harm. The plaintiff’s expert affidavit, however, showed a triable issue of fact existed as to whether the defendant caused the plaintiff’s harm. Thus, the court found that the trial court properly granted the plaintiff’s motion for reargument and reversed its previous ruling.

Meet with a Skilled Rochester Medical Malpractice Attorney

You should be able to rely on your doctor to provide you with competent care. If you or a loved one suffered harm due a failure to diagnose or treat a medical condition you should meet with a skilled Rochester medical malpractice attorney adept at handling cases involving failure to diagnose to discuss your case. At DeFrancisco & Falgiatano Personal Injury Lawyers our medical malpractice attorneys will aggressively pursue the full extent of compensation you may be owed for the harm you suffered. We can be reached at 833-200-2000 or through our online form to set up a confidential and free consultation.


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