Joe Whitcomb
In Powell v. Oudkerk, the Appellate Division of the New York Supreme Court addressed competing expert opinions in a medical malpractice and wrongful death case. The decedent, struck by a vehicle while standing on a sidewalk, was treated and discharged by a physician at Brookdale Hospital. She died two days later from a pulmonary embolism linked to deep vein thrombosis (DVT). The trial court denied the defendants' motion for summary judgment on malpractice and wrongful death claims, and the appellate court affirmed that decision, while dismissing a separate negligent hiring and retention claim.
Conflicting Medical Opinions on Standard of Care
The incident occurred in September 2017 when the decedent was hit by a car. She was treated at Brookdale Hospital by Dr. Akeem Atanda and discharged the next day. Two days later, she experienced cardiac arrest and died shortly thereafter. An autopsy determined the cause of death as a pulmonary thromboembolism resulting from DVT of the lower extremities.
The plaintiff, the decedent's estate representative, sued the hospital and physician for medical malpractice and wrongful death, also alleging negligent hiring and retention against the hospital. The defendants sought summary judgment, submitting expert testimony that they did not deviate from the standard of care and had no reason to suspect DVT at the time of discharge.
However, the plaintiff submitted a countering expert affirmation from a board-certified internist and pulmonologist. That expert argued the decedent's clinical presentation and recent trauma placed her at high risk for DVT and that failure to evaluate for it constituted a departure from accepted medical practice.
Court Affirms Malpractice and Wrongful Death Claims Can Proceed
The appellate court found the defendants had met their initial burden by producing evidence that their actions adhered to accepted medical standards. Nonetheless, the plaintiff's expert testimony raised a triable issue of fact regarding whether the defendants failed to consider and test for DVT in a high-risk patient.
The court reiterated that summary judgment is generally inappropriate in medical malpractice cases when opposing expert opinions create factual disputes. As the plaintiff's wrongful death claim was premised on the same alleged malpractice, it too was permitted to proceed to trial.
Dismissal of Negligent Hiring and Retention Claim
While allowing the malpractice and wrongful death claims to continue, the court modified the trial court’s decision to dismiss the negligent hiring and retention claim against Brookdale Hospital. The plaintiff had not specifically opposed that part of the motion or raised any evidence suggesting the hospital was negligent in its hiring or supervision of the treating physician.
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