Fourth Department – Medical malpractice: Revere v. Burke, et al.

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New York State Supreme Court, Appellate Division, Fourth Judicial Department

Medical malpractice — Failure to follow up — Knowledge of missed visit

Revere v. Burke, et al.

CA 23-01146

Appealed from Supreme Court, Oneida County

Background: The plaintiff commenced a medical malpractice action following the discovery of a brain tumor. She alleged that the defendants failed to discover the tumor at an earlier time. She alleged that the defendants departed from the standard of care by failing to engage in appropriate follow-up, planning, and treatment. A jury returned a verdict in favor of the defendants, but the court granted the plaintiff’s CPLR 4404(a) motion to set aside the verdict.

Ruling: The Appellate Division reversed and reinstated the verdict. The court held that there was ample evidence supporting the conclusion that the defendant should have reported the plaintiff’s missed appointment to the primary care physician had she known about it. However, it was undisputed that the defendant was not aware of the plaintiff’s failure to follow up with the practice until well after the lawsuit was commenced.

C. Taylor Payne, of Martin, Ganotis, Brown, Mould & Currie, for the defendants-appellants; Robert F. Julian for the plaintiffs-respondents.

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