Alvarez v. Prospect Hosp.

CourtNew York Supreme Court — Appellate Division
Writing for the CourtROSS; ASCH
Citation115 A.D.2d 444,496 N.Y.S.2d 1006
PartiesMaria ALVAREZ, Plaintiff-Respondent, v. PROSPECT HOSPITAL et al., Defendants, Dr. Jesse D. Stark, Defendant-Appellant, Dr. J. Neill, et al., Defendants. PROSPECT HOSPITAL, Third-Party Plaintiff, v. Patrick WALSH, M.D., Third-Party Defendant.
Decision Date26 December 1985

Page 1006

496 N.Y.S.2d 1006
115 A.D.2d 444
Maria ALVAREZ, Plaintiff-Respondent,
v.
PROSPECT HOSPITAL et al., Defendants,
Dr. Jesse D. Stark, Defendant-Appellant,
Dr. J. Neill, et al., Defendants.
PROSPECT HOSPITAL, Third-Party Plaintiff,
v.
Patrick WALSH, M.D., Third-Party Defendant.
Supreme Court of New York, Appellate Division,
First Department.
December 26, 1985

M.D. Kessler, New York City, for plaintiff-respondent. P. D'Alvia, New York City, for defendant-appellant.

Order, Supreme Court, Bronx County (Anthony Mercorella, J.), entered on or about November 4, 1983, affirmed, without costs and without disbursements.

All concur except ROSS and MILONAS, JJ., who concur in a memorandum by ROSS, J.; KUPFERMAN, J.P., and ASCH, J., dissent in a memorandum by ASCH, J.; and SANDLER, J., concurs in the result reached on the basis of Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642, all as follows:

ROSS, Justice (concurring):

In late 1978, as a result of the then thirty-two year old plaintiff's complaint of

Page 1007

abdominal pain, she was admitted as a patient to Prospect Hospital (Hospital), which was located in the Bronx. Thereafter, in December 1978, while plaintiff was in that Hospital, her attending physician, Dr. J. Neill (Dr. Neill), ordered certain x-rays, including a chest x-ray, an intravenous pyelogram and a barium enema. After these x-rays were taken, Dr. Jesse D. Stark (Stark), who was a Board Certified Radiologist and Chief of Radiology at the Hospital, interpreted the results. In pertinent part, Dr. Stark wrote in his report, dated December 7, 1978, to Dr. Neill, that the barium enema indicated cecal neoplasm of the cecum of the colon, which, in substance, is a cancerous growth in the intestinal area. Our review of the record reveals that Dr. Stark, besides submitting this report, did not discuss either the seriousness of this finding or anything else about this patient with Dr. Neill. Subsequently, on December 16, 1978, plaintiff was discharged from the Hospital with a diagnosis of acute gastroenteritis. Approximately a year later, on December 4, 1979, plaintiff was again a patient in this Hospital, since her abdominal pain had continued. This time the plaintiff's attending physician was Dr. P. Gubitose (Dr. Gubitose), and he, inter alia, requested that Dr. Stark perform another barium enema on the plaintiff. In pertinent part, in his written report, dated December 6, 1979, to Dr. Gubitose, Dr. Stark again made a finding of "cecal neoplasm". Later, in December 1979, the plaintiff underwe a bowel resection to endeavor to remove the malignancy. Subsequent to her surgery, in March 1981, plaintiff commenced this instant medical malpractice action against the Hospital and nine physicians, including Dr. Stark, Dr. Neill and Dr. Gubitose, for failure to make a proper and timely diagnosis of carcinoma of plaintiff's cecum, which is the first segment of her large intestine, and failure to render proper aftercare. Following service of his answer, the furnishing of a bill of particulars to him by plaintiff, and defendant Dr. Stark's own examination before trial, Dr. Stark moved for summary judgment. His motion, in substance, is based upon the ground that his only responsibility to the plaintiff was to interpret the x-rays correctly, which he did since the plaintiff admits that fact. Special Term denied the motion. We agree. Based upon our examination of the record, we find that defendant has failed to make a prima facie showing that entitles him to judgment as a matter of law. "[T]he bare conclusory assertions ... that ... [defendant Dr. Stark] did not deviate from good and accepted medical practices, with no factual relationship to the alleged injury ... [does] not establish that the cause of action has no merit so as to entitle ... [defendant] to summary judgment [citations omitted]". Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [material in brackets added]. Summary judgment is issue finding rather than issue determination (Sillman v. Twentieth Century...

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1 practice notes
  • Alvarez v. Prospect Hosp.
    • United States
    • New York Court of Appeals
    • November 11, 1986
    ...raised concerning the duty, if any, of the defendant with respect to the plaintiff's treatment. A divided Appellate Division affirmed (115 A.D.2d 444, 496 N.Y.S.2d 1006). We now As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entit......
1 cases
  • Alvarez v. Prospect Hosp.
    • United States
    • New York Court of Appeals
    • November 11, 1986
    ...raised concerning the duty, if any, of the defendant with respect to the plaintiff's treatment. A divided Appellate Division affirmed (115 A.D.2d 444, 496 N.Y.S.2d 1006). We now As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entit......

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