Conti by Conti v. Lende

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MIKOLL; MERCURE; MIKOLL
• Citation: Conti by Conti v. Lende, 599 N.Y.S.2d 310, 194 A.D.2d 892 (N.Y. App. Div. 1993)
• Decision Date: 10 June 1993
• Parties: Marlana CONTI, an Infant, by Anthony F. CONTI, Her Father and Natural Guardian, Respondent, v. Danielle G. LENDE, as Personal Representative of the Estate of Richard A. Lende, Deceased, et al., Appellants.

Page 310

599 N.Y.S.2d 310

194 A.D.2d 892

Marlana CONTI, an Infant, by Anthony F. CONTI, Her Father and Natural Guardian, Respondent, v. Danielle G. LENDE, as Personal Representative of the Estate of Richard A. Lende, Deceased, et al., Appellants.

Supreme Court, Appellate Division Third Department.

June 10, 1993.

Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander (Frank J. Warner Jr., of counsel), Albany, for appellants.

Insogna & McCoski (Richard A. Insogna, of counsel), Amsterdam, for respondent.

Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and CASEY, JJ.

MERCURE, Justice.

Appeal from an order of the Supreme Court (Kahn, J.), entered April 22, 1992 in Albany County, which denied defendants' motion for summary judgment dismissing the complaint.

This medical malpractice action was brought to recover damages allegedly suffered by plaintiff, then four years old, in connection with the subtotal surgical removal of a tumor in her brain in December 1971, subsequent radiation and chemotherapy, and additional related medical care. On a previous appeal, to which we refer for a more complete statement of the facts, this court reversed Supreme Court's denial of a motion for summary judgment by defendants Albany Medical Center Hospital, Arthur A. Stein and Donald N. Baxter and dismissed the complaint against them (see, Conti v. Albany Med. Ctr. Hosp., 159 A.D.2d 772, 551 N.Y.S.2d 994, lv. denied, 76 N.Y.2d 702, 559 N.Y.S.2d 239, 558 N.E.2d 41). As indicated on the prior appeal, the complaint alleges "a failure to properly diagnose and treat plaintiff's condition, the performance of surgery which resulted in the irreversible destruction of brain tissue, the introduction of bacteria and other infectious material into plaintiff's skull, the mistaken evaluation of plaintiff's condition as hopelessly terminal and the failure to adequately monitor plaintiff while she was under defendants' care and supervision" (id., 159 A.D.2d at 773, 551 N.Y.S.2d 994).

In the previous decision, we focused primarily upon the claims that the pathology reports prepared by Stein and defendant Kevin D. Barron were inconsistent with one another, that Stein's report, which diagnosed a far more treatable cancer, was the correct one, and that, had the treating physicians not improperly relied upon Barron's incorrect diagnosis, a far more conservative and less destructive course of treatment would have been employed. On the record then before us (and in the absence of a competent evidentiary showing by plaintiff), we found as a matter of law that the reports of Stein and Barron did not contradict one another; to the contrary, consistent with the policy then in effect at the hospital, Barron's report was merely more definitive (id. at 774-775, 551 N.Y.S.2d 994). We also found that the claimed discrepancy between the reports would have had no bearing upon the ultimate course of radiation therapy in any event. Finally, we determined that the claims of (1) failure to properly treat plaintiff's condition, (2) introduction of bacteria and other infectious material into her skull, (3) failure to monitor her with the same degree of thoroughness and diligence accorded to patients not considered terminal and having hope of recovery, and (4) other acts and omissions constituting malpractice and negligence, were so devoid of particularity as to place no initial burden upon the moving defendants with regard to them (id. at 774 n., 551 N.Y.S.2d 994).

On the current motion, the remaining defendants, Danielle G. Lende, as personal representative of the estate of Richard A. Lende, deceased, the neurosurgeon who performed the surgery upon plaintiff, Peggy A. Hanson (incorrectly sued as Hansen), a child neurologist, Barron, Louis R. Nelson,...