Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ellis v. Eng

February 16, 2010

SHAVON ELLIS, ETC., ET AL., APPELLANTS-RESPONDENTS,
v.
KENNETH ENG, ETC., ET AL., RESPONDENTS, GEORGE GUSSET, ETC., RESPONDENT-APPELLANT, ET AL., DEFENDANTS.



In an action to recover damages for wrongful death and pain and suffering allegedly arising from medical malpractice, (1) the plaintiffs appeal, as limited by their brief, from (a) so much of an order of the Supreme Court, Kings County (Dabiri, J.), dated July 17, 2008, as granted those branches of the motion of the defendants Kenneth Eng, Delphic Surgical Associates, P.C., New York University Medical Center, and Jed Kaminetsky which were for summary judgment dismissing the causes of action based upon failure to refer the plaintiffs' decedent to an oncologist, failure to properly monitor the decedent for the recurrence of cancer, and failure to obtain the decedent's informed consent to forego adjuvant therapy after surgery insofar as asserted against Kenneth Eng and Delphic Surgical Associates, P.C., and granted those branches of the separate motion of the defendant George Gusset which were for summary judgment dismissing the causes of action based upon failure to obtain the decedent's informed consent to forego adjuvant therapy and failure to refer the decedent to an oncologist insofar as asserted against him, and (b) so much of an order of the same court dated March 25, 2009, as denied their motion for leave to renew and reargue, and granted the cross motion of Kenneth Eng and Delphic Surgical Associates, P.C., for reargument, and upon reargument, vacated the original determination denying those branches of the motions which were for summary judgment dismissing the cause of action alleging failure to recommend that the decedent receive adjuvant therapy insofar as asserted against Kenneth Eng, Delphic Associates P.C., and George Gusset, granted those branches of the motions, and directed dismissal of that cause of action against Kenneth Eng, Delphic Associates P.C., and George Gusset, and (2) the defendant George Gusset cross-appeals from so much of the order dated July 17, 2008, as denied that branch of his motion which was for summary judgment dismissing the cause of action based upon failure to properly monitor the decedent for the recurrence of cancer insofar as asserted against him. The cross-appeal by George Gusset from so much of the order dated July 17, 2008, as denied that branch of his motion which was for summary judgment dismissing the cause of action based upon failure to properly monitor the decedent for the recurrence of cancer insofar as asserted against him brings up for review so much of the order dated March 25, 2009, as, in effect, upon reargument, adhered to the original determination denying that branch of his motion which was for summary judgment dismissing that cause of action insofar as asserted against him (see CPLR 5517).

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, LEONARD B. AUSTIN, JJ.

(Index No. 13209/05)

DECISION & ORDER

ORDERED that the appeal by the plaintiffs from so much of the order dated March 25, 2009, as denied that branch of their motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the cross appeal by George Gusset from the order dated July 17, 2008, is dismissed, as the portion of that order cross-appealed from by him was superseded by so much of the order dated March 25, 2009, as, in effect, upon reargument, adhered to the original determination denying that branch of his motion which was for summary judgment dismissing the cause of action based upon failure to properly monitor the decedent for the recurrence of cancer insofar as asserted against him; and it is further,

ORDERED that the order dated July 17, 2008, is affirmed insofar as appealed from by the plaintiffs; and it is further,

ORDERED that the order dated March 25, 2009, is affirmed insofar as reviewed; and it is further,

ORDERED that the defendants Kenneth Eng and Delphic Surgical Associates, P.C., are awarded one bill of costs, payable by the plaintiffs and George Gusset.

On May 1, 2002, the defendant George Gusset performed a colonoscopy on the decedent, and found a cancerous lesion. He referred the decedent to the defendant Kenneth Eng, a gastrointestinal surgeon. On May 21, 2002, Eng removed the lesion, which was diagnosed as stage IIB colon cancer. On June 7, 2002, Eng advised Gusset that the decedent would not require adjuvant therapy (chemotherapy).

In August, September, and October 2002, the decedent continued to see Gusset, who monitored his general physical condition, ordered blood tests, and purportedly was monitoring him for the recurrence of cancer. Gusset did not advise chemotherapy. On October 3, 2002, Gusset recommended that the decedent return to work with no restrictions. Thereafter, the decedent did not see Gusset for more than a year.

The decedent continued to see Eng through November 2003, for the monitoring of his surgical wound. On December 1, 2003, the decedent returned to Gusset, and shortly thereafter was diagnosed with inoperable cancer of the colon. The decedent died on May 4, 2004.

The administrator of the decedent's estate, in that capacity and individually, commenced the instant action on April 28, 2005, against, among others, Eng, Eng's professional corporation, Delphic Surgical Associates, P.C. (hereinafter Delphic Surgical), and Gusset. The plaintiff alleged that Eng and Gusset departed from accepted standards of medical care by failing to recommend that the decedent receive adjuvant therapy, failing to obtain the decedent's informed consent to forego such therapy, failing to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.