Estate of Simeone v. Intermed Med.: Court Weighs Malpractice and Wrongful Death

On February 19, 2002, Toni Anne Simeone, age 18, suffered cardiac arrest at her home and was transported to the hospital, where she was pronounced dead. An autopsy revealed that she died from pulmonary thromboemboli caused by pelvic vein thrombosis and immobility due to a ruptured ovarian neoplasm. In 2003, her estate, represented by Anthony Simeone, along with other family members, filed an action for medical malpractice and wrongful death. The suit was brought against Intermed Medical of NY, Inc., and several physicians, including Dr. Osias Diaz and Dr. Irine Corst, who had treated her in the weeks preceding her death.

Trial Court Proceedings

Following discovery, Dr. Diaz moved for summary judgment seeking dismissal of the complaint against him. Dr. Corst also moved for summary judgment dismissing the claims against her. On June 15, 2020, the Supreme Court, Kings County, denied Diaz’s motion and denied Corst’s motion as well.

Appellate Division Review

Both Diaz and Corst appealed. The Appellate Division, Second Department, reviewed the standards for summary judgment in medical malpractice cases. To obtain summary judgment, a defendant must establish either that there was no departure from accepted medical practice or that any alleged departure did not proximately cause the patient’s injuries. Once that showing is made, the burden shifts to the plaintiff to raise a triable issue of fact, often through competing expert opinions.

The court found that Diaz had made a prima facie showing by submitting expert affirmations stating that his care during a January 26, 2002, emergency room visit was appropriate. The plaintiffs, however, submitted an expert affirmation raising triable issues as to whether Diaz’s failure to order diagnostic tests to rule out an ovarian cyst departed from accepted medical practice and proximately caused the death. Nonetheless, the appellate court determined that the plaintiffs failed to show evidence supporting a claim of lack of informed consent against Diaz. Therefore, the court modified the lower court’s order by granting Diaz summary judgment on that specific claim, while affirming the denial of summary judgment on the remaining malpractice allegations.

As for Corst, the court found that she also established a prima facie entitlement to judgment by submitting an expert affirmation stating that her care on February 13, 2002, was appropriate. In opposition, the plaintiffs’ expert raised triable issues of fact regarding whether her care departed from accepted standards and whether those departures caused the decedent’s death. Accordingly, the appellate court affirmed the denial of Corst’s motion.

Court’s Ruling

The Appellate Division modified the Supreme Court’s order. It granted summary judgment to Dr. Diaz only on the claim of lack of informed consent, while affirming the denial of summary judgment on all other malpractice allegations against Diaz and Corst. The case was allowed to proceed on those remaining claims.

Assistance with Medical Malpractice Matters

If you have concerns about potential negligence in medical treatment or wrongful death claims, Whitcomb, Selinsky PC assists with medical malpractice cases. Contact us to learn how our team can help with your situation.