Anderson v. Lamaute
| Decision Date | 02 June 2003 |
| Citation | 761 N.Y.S.2d 87,306 A.D.2d 232 |
| Parties | ADOLPH ANDERSON et al., Appellants,<BR>v.<BR>HENRY R. LAMAUTE et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendant Henry Robert Lamaute and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with one bill of costs payable to the defendant Wesner Moise by the defendant Henry Robert Lamaute, and the complaint is reinstated insofar as asserted against the defendant Henry Robert Lamaute.
The plaintiff Adolph Anderson went to the defendant Wesner Moise, an internist, with a complaint of swelling in his lower extremities. After ruling out deep vein thrombosis, Dr. Moise ordered, inter alia, a pelvic CT scan that indicated the presence of a retroperitoneal mass. Dr. Moise admitted Anderson to the hospital for a CT-guided needle biopsy to determine the nature of the mass. The pathologist reported that the needle biopsy showed atypical cells, but was inconclusive, and recommended an open biopsy. Dr. Moise referred Anderson to the defendant Henry Robert Lamaute, a surgeon, who performed an exploratory laparotomy and excision of the mass to obtain a definitive diagnosis. The resultant diagnosis was a retroperitoneal lipoma, a benign condition. After the surgery, Anderson had a recurrence of the swelling in his left leg. Dr. Moise, who suspected a venous insufficiency, prescribed an elastic stocking and recommended that Anderson consult with a vascular surgeon.
Anderson sought a second opinion from nonparty physician Mark Horowitz, who referred Anderson to nonparty physician B. Paul White. The diagnostic tests authorized by Dr. Horowitz and Dr. White revealed a mass in the retroperitoneum and gluteal region. Approximately eight months after the laparotomy performed by Dr. Lamaute resulted in the noncancerous diagnosis, a second CT-guided needle biopsy revealed a malignant lymphoma. Anderson underwent a successful regimen of chemotherapy and radiation therapy which shrank the tumor, and subsequent diagnostic testing revealed negative findings for any spread of the cancer.
"In a medical malpractice action, a plaintiff, in opposition to a defendant physician's summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). General allegations of medical malpractice, merely conclusory in nature and unsupported by competent evidence tending to establish the essential elements of the claim, are insufficient to defeat a defendant physician's entitlement to summary judgment (see Alvarez v Prospect Hosp., supra at 325). The...
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