Prete v. Rafla-Demetrious
| Decision Date | 26 February 1996 |
| Docket Number | RAFLA-DEMETRIOUS |
| Citation | 224 A.D.2d 674,638 N.Y.S.2d 700 |
| Parties | Dominick PRETE, etc., et al., Respondents, v. Sameer, et al., Defendants, Hosny M. Selim, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Aaronson Rappaport Feinstein & Deutsch, New York City (Carol E. Russell, of counsel), for appellant Hosny M. Selim.
Garbarini & Scher, P.C., New York City (Kenneth Mauro, of counsel), for appellant Lulu Thomas.
Bauman & Kunkis, P.C., New York City (Weiss & Wexler, P.C., Louis R. Salvo, of counsel), for respondents.
Before BALLETTA, J.P., and JOY, KRAUSMAN and FLORIO, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for medical malpractice, etc., the defendants Hosny M. Selim and Lulu Thomas appeal from a judgment of the Supreme Court, Kings County (Spodek, J.), entered June 21, 1994, which, upon a jury verdict, is in favor of the plaintiffs and against them in the principal sum of $175,000.
ORDERED that the judgment is reversed, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, and the complaint is dismissed insofar as asserted against the appellants.
In 1984, Frank Prete was diagnosed with prostate cancer. In June 1987, the cancer had spread to his hip and he was treated by Dr. Hosny M. Selim with palliative radiation treatment, after which he resumed his normal activities. One evening in January 1988, he experienced slurred speech, disorientation, and unfocused vision. Shortly thereafter he had a CAT scan which was interpreted by Dr. Thomas Mooken to depict the spreading of the prostatic cancer to Prete's brain. Based on that diagnosis, Dr. Selim administered palliative radiation therapy to Prete's head.
During the course of treatment, Prete sustained, according to family members, discoloration of the skin, peeling and breaking of the skin all over his body, exhaustion and weakness, inability to walk without assistance, and disorientation. These conditions were alleged to continue until Prete died on October 31, 1988.
In early April 1988 Prete had a seizure and was taken to Maimonides Medical Center. The admission records did not indicate that Prete had the symptoms allegedly resulting from the radiation therapy. A new CAT scan was taken, and it was determined that Prete had suffered a stroke and did not have a tumor in the brain. This action ensued, seeking damages resulting from the needless course of radiation therapy.
The elements of proof in a medical malpractice action are (1) deviation or departure from accepted practice and (2) evidence that such departure was a proximate cause of injury or damage (see, Bloom v. City of New York, 202 A.D.2d 465, 609 N.Y.S.2d 45; Kletnieks v. Brookhaven Mem. Assn., 53 A.D.2d 169, 176, 385 N.Y.S.2d 575). To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence...
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Expert witnesses
...establish proximate cause, unless the matter is within the experience and observation of the ordinary juror. Prete v. Rala-Demetrious , 224 A.D.2d 674, 638 N.Y.S.2d 700 (2d Dept. 1996); see Sohn v. Sand , 180 A.D.2d 789, 580 N.Y.S.2d 458 (2nd Dept. 1992) (departure from standard of care); S......
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Expert witnesses
...establish proximate cause, unless the matter is within the experience and observation of the ordinary juror. Prete v. Rala-Demetrious , 224 A.D.2d 674, 638 N.Y.S.2d 700 (2d Dept. 1996); see Sohn v. Sand , 180 A.D.2d 789, 580 N.Y.S.2d 458 (2nd Dept. 1992) (departure from standard of care); S......
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Expert witnesses
...establish proximate cause, unless the matter is within the experience and observation of the ordinary juror. Prete v. Rafla-Demetrious , 224 A.D.2d 674, 638 N.Y.S.2d 700 (2d Dept. 1996); see Sohn v. Sand , 180 A.D.2d 789, 580 N.Y.S.2d 458 (2nd Dept. 1992) (departure from standard of care); ......
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Expert witnesses
...establish proximate cause, unless the matter is within the experience and observation of the ordinary juror. Prete v. Rafla-Demetrious , 224 A.D.2d 674, 638 N.Y.S.2d 700 (2d Dept. 1996); see Sohn v. Sand , 180 A.D.2d 789, 580 N.Y.S.2d 458 (2nd Dept. 1992) (departure from standard of care); ......