Appellate Division, Fourth Department
Deviation of Standard of Care
Wilk v. James, M.D.
Appealed from Supreme Court, Erie County
Background: The plaintiff administratrix of her husband’s estate commenced a medical malpractice and wrongful death action. She alleged that the defendants’ misdiagnosis led to the death of her husband. The defendants appealed from the denial of their motion for summary judgment.
Ruling: The Appellate Division reversed. The court found that the defendants had met their burden that they did not deviate from acceptable medical practice. The court further found that the plaintiff failed to raise a triable issue of fact. Specifically, the affidavit of the plaintiff’s urological expert was insufficient as the expert did not opine that the defendants should have diagnosed an aortic dissection allegedly existing at the time of the misdiagnosis. Further, the expert opined that the defendants should have ordered a CT scan to rule out a number of other conditions. However, the conditions to be ruled out were not the cause of the decedent’s death, nor had he, in fact, had such conditions. Therefore, the deviation of standard of care was that the defendants did not rule out a condition the decedent did not have.
John T. Loss of Connors & Vilardo for the defendants-appellants; Richard P. Valentine of Hamsher & Valentine for the plaintiff-respondent