Tardi v. Casler-Bladek

212 A.D.3d 904

182 N.Y.S.3d 769

Gissela TARDI, Respondent,

v. Susan CASLER–BLADEK et al., Defendants,andTimothy Harrigan, Appellant.

534077

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 16, 2022

Decided and Entered: January 5, 2023

Phelan, Phelan & Danek, LLP, Albany (Timothy S. Brennan of counsel), for appellant.

The Jacob D. Fuchsberg Law Firm, LLP, New York City (Nealraj S. Bhushan of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Aarons, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from an order of the Supreme Court (Susan M. Kushner, J.), entered July 13, 2021 in Albany County, which denied defendant Timothy Harrigan's motion for summary judgment dismissing the complaint against him.

In 2018, plaintiff presented to the emergency department of defendant St. Mary's Healthcare on two separate occasions with complaints of leg numbness and back pain. At the second presentation, plaintiff was seen by defendant Timothy Harrigan (hereinafter defendant), a physician's assistant, who diagnosed plaintiff with acute back pain and discharged her. Shortly thereafter, plaintiff was diagnosed with deep vein thrombosis (hereinafter DVT) and underwent multiple surgeries to treat it. Plaintiff then commenced this medical malpractice action against defendant, among others, stemming from his alleged improper treatment with respect to her complaints of pain to her leg and lower back and his failure to diagnose her with DVT. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint insofar as asserted against him. Supreme Court denied the motion, prompting this appeal by defendant.

In support of his motion, defendant tendered, among other things, his deposition testimony in which he stated that he examined plaintiff and, while doing so, was aware that plaintiff had presented to the emergency department two days earlier due to complaints of lower back pain. Defendant's examination of plaintiff's lower back revealed that the lumbar musculature was tender to palpation and that there was no erythema, edema or ecchymosis. Based on the examination and plaintiff's X ray from her earlier presentation to the emergency department, defendant was concerned about the possibility of DVT and ordered a venous duplex ultrasound. According to defendant, the ultrasound was negative, and he felt comfortable discharging plaintiff without a diagnosis of DVT. Defendant prescribed plaintiff a muscle relaxant and pain medication.

Defendant's expert opined that, based upon plaintiff's symptoms and prior medical history and defendant's physical examination of plaintiff, defendant acted within the standard of care by ordering a duplex venous ultrasound. According to the expert, a duplex venous ultrasound is the "diagnostic test of choice in the emergency department" given that it is non-invasive, easy to administer and had a very high accuracy rate of detecting DVT. The expert noted that a radiologist interpreted the ultrasound as revealing no evidence of DVT, and concluded that defendant was entitled to rely on the radiologist's interpretation. The expert also concluded that defendant conducted a proper examination of...