Murray v. Hirsch
| Citation | 2009 NY Slip Op 00359,871 N.Y.S.2d 673,58 A.D.3d 701 |
| Decision Date | 20 January 2009 |
| Docket Number | 2008-01463. |
| Parties | DAVID MURRAY et al., Respondents, v. STEPHEN HIRSCH et al., Appellants. |
| Court | New York Supreme Court Appellate Division |
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The plaintiff David Murray (hereinafter the plaintiff) went to the defendant Stephen Hirsch (hereinafter the defendant), a urologist, in January 2004 complaining of darkened semen. The defendant advised the plaintiff that the darkening was caused by blood in his semen, a condition known as hematospermia. The defendant examined the plaintiff's prostate and found it normal. The plaintiff's prostate specific antigen (PSA) score was 1.87, a rise of .57 from the test conducted in 2001. The defendant told the plaintiff that the condition was benign and would clear up on its own. The plaintiff was subsequently diagnosed with prostate cancer. The plaintiff and his wife commenced this action against the defendants asserting, inter alia, that the defendant should have ordered a prostate sonogram and biopsy when he had first complained of hematospermia because his rising PSA scores, combined with the hematospermia, were indicative of an elevated risk of prostate cancer. The Supreme Court denied the defendants' motion for summary judgment dismissing the complaint. We reverse.
On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby (see Shahid v New York City Health & Hosps. Corp., 47 AD3d 800 [2008]; Rebozo v Wilen, 41 AD3d 457 [2007]; Williams v Sahay, 12 AD3d 366 [2004]). The affirmation of the defendants' expert was sufficient to establish that the defendant did not depart from good and accepted medical practice.
Once a defendant has made this prima facie showing, the burden shifts to the plaintiff to establish the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition, the plaintiff must submit a physician's affidavit...
To continue reading
Request your trial
-
Montagnino v. Inamed Corp.
...585 (2d Dept. 2010); Anonymous v. Wyckoff Heights Medical Center, 73 A.D.3d 1104, 902 N.Y.S.2d 147 (2d Dept. 2010); Murray v. Hirsch, 58 A.D.3d 701, 871 N.Y.S.2d 673 (2d Dept. 2009); Rebozo v. Wilen, 41 A.D.3d 457, 838 N.Y.S.2d 121 (2d Dept. 2007)). Defendant Shons has made a prima facie sh......
-
Montagnino v. Inamed Corp.
...Dept.2010); Anonymous v. Wyckoff Heights Medical Center, 73 AD3d 1104, 902 N.Y.S.2d 147 (2d Dept.2010); Murray v. Hirsch, 58 AD3d 701, 871 N.Y.S.2d 673 (2d Dept.2009); Rebozo v. Wilen, 41 AD3d 457, 838 N.Y.S.2d 121 (2d Dept.2007)). Defendant Shons has made a prima facie showing of entitleme......
-
Christie v. Island Urological Assoc., P.C., 2010 NY Slip Op 30817(U) (N.Y. Sup. Ct. 3/23/2010)
...the plaintiff was not injured thereby." (Shectman v. Wilson, 68 A.D.3d 848, 890 N.Y.S.2d 117 (2d Dept., 2009), citing Murray v. Hirsch, 58 A.D.3d 701, 871 N.Y.S.2d 673 (2d Dept., 2009); Shahid v New York City Health & Hospitals Corp 47 A.D.3d 800, 850 N.Y.S.2d 519 [2d Dept., 2008]; Alvarez ......
-
Chipley v. Stephenson
...any departure from good and accepted medical practice or that the plaintiff [and her son were] not injured thereby" ( Murray v. Hirsch, 58 A.D.3d 701, 702, 871 N.Y.S.2d 673, lv. denied 12 N.Y.3d 709, 881 N.Y.S.2d 18, 908 N.E.2d 926; see O'Shea v. Buffalo Med. Group, P.C., 64 A.D.3d 1140, 88......