This appeal followed the denial of defendants’ motion for summary judgment by the Supreme Court of Erie County. Plaintiff Joanne Wilk, administratrix of decedent Steven Wilk, filed a wrongful death action against defendants David James, Louis Baumann, Carlo Perfetto, and Western New York Urology Associates.
On February 16, 2004, the decedent called Defendants, complaining of kidney stones. Defendants reviewed a CT scan of the decedent’s abdomen taken one day prior and instructed the decedent to go to the hospital in order to receive a catheter, since their facility did not have enough staff present to perform the procedure. Defendants also instructed the decedent to schedule a follow-up appointment immediately after his hospital procedure. The decedent, however, did not schedule a follow-up appointment with Defendants, and he was transported to the hospital three days later, complaining of immobility in his legs. After several surgeries, the decedent passed away on March 3, 2004, due to a “cerebral infarct with herniation.”
Plaintiff alleged that Defendants deviated from the standard of care by failing to order a CT scan of the decedent’s abdomen and pelvis on February 16 and that, but for such deviation, Defendants or other medical providers would have diagnosed the purported underlying cause of the decedent’s condition. In order to establish Defendants’ departure from accepted medical practice and that the departure was the proximate cause of the decedent’s eventual death, Plaintiff’s expert witness testified that Defendants should have diagnosed the decedent’s condition on February 16 based on his complaints of kidney stones and pain.
The appellate division held that general allegations of medical malpractice, which were merely conclusory and unsupported by competent evidence, were insufficient to defeat Defendants’ summary judgment motion. Here, Plaintiff only introduced evidence that the CT scan of the decedent’s back could have possibly revealed the fatal injury, but not that Defendants should have performed the scan. Plaintiff introduced no other evidence to show that Defendants deviated from good and accepted medical practice. The court held that, since Plaintiff did not introduce any evidence to establish that Defendants departed from good and accepted medical practice, their motion for summary judgment should be granted.
108 A.D.3d 1140, 969 N.Y.S.2d 359 (4th Dep’t, 2013)