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Brown v. Arnot Medical Center

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


October 1, 2010

TRISHA BROWN, INDIVIDUALLY AND AS CO-EXECUTOR OF THE ESTATE OF LOYOLA MCCORMICK, DECEASED, AND GREG MCCORMICK, INDIVIDUALLY AND AS CO-EXECUTOR OF THE ESTATE OF LOYOLA MCCORMICK, DECEASED, PLAINTIFFS-RESPONDENTS,
v.
ARNOT MEDICAL CENTER, ET AL., DEFENDANTS, AND KEVIN D. O'SHEA, M.D., DEFENDANT-APPELLANT.

Appeal from an order of the Supreme Court, Steuben County (Joseph W. Latham, A.J.), entered November 9, 2009 in a medical malpractice action. The order denied the motion of defendant Kevin D. O'Shea, M.D. for summary judgment dismissing the complaint.

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.

PRESENT: MARTOCHE, J.P., CARNI, GREEN, PINE, AND GORSKI, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

Kevin D. O'Shea, M.D. (defendant) appeals from an order denying his motion for summary judgment dismissing the complaint in this medical malpractice action. We affirm. Even assuming, arguendo, that defendant met his initial burden on the motion, we conclude that plaintiffs raised issues of fact to defeat the motion by submitting the affidavit of their medical expert (see Selmensberger v Kaleida Health, 45 AD3d 1435, 1436; Ferlito v Dara, 306 AD2d 874; see generally Zuckerman v City of New York, 49 NY2d 557, 562). Among those issues of fact raised by the expert's affidavit are whether defendant deviated from the accepted standards of medical care by failing to take decedent's vital signs or to order a urinalysis test in a timely fashion, failing to ensure that decedent's care was transferred to another doctor when defendant left the hospital, and failing to have decedent's CT scan results reviewed and interpreted by a radiologist (see Latona v Roberson, 71 AD3d 1498; Selmensberger, 45 AD3d at 1436).

20101001

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