Gambles v. Davis

Friedman and Sullivan, JJ.,

dissent in a memorandum by Sullivan, J., as follows: In my view, Supreme Court’s denial of leave to amend to add a cause of action for wrongful death was correct. The expert affirmation submitted by plaintiffs states, without any express references to the medical records that the expert says were reviewed, only that the decedent “would have required less extensive treatment and she would have had a significantly better survival rate” if defendants had “timely and properly diagnosed” her cancer. This conclusory statement, bereft of evidentiary support, fails to satisfy the requirement of proof which includes a statement of the acts and omissions that deviated from accepted medical practice and that such departures were the proximate cause of the decedent’s death (see Paolano v Southside Hosp., 3 AD3d 524 [2004]; Layz v City of *227New York, 205 AD2d 460 [1994]; McGuire v Small, 129 AD2d 429 [1987]). Even though there was no affidavit or affirmation from a physician in McGuire, where the court denied leave to amend, the patently insufficient affirmation here renders the two cases virtually indistinguishable. Other than the expert’s affirmation’s bare reference to the “alleged failure to diagnose” decedent’s cancer, which can hardly be considered “competent medical proof’ (see McGuire, supra; see also Paolano, supra), there is no mention of any acts or omissions on the part of either the physician or the hospital that contributed to decedent’s death.*

The majority ignores the requirement of a causal connection between the alleged malpractice and the decedent’s death by asserting that to require plaintiff to make a more detailed showing of defendant hospital’s negligence would impose a “burden of proof associated with summary judgment without affording the plaintiffs full discovery on the issue” (Zuck v Sierp, 169 AD2d 717, 718 [1991]). Zuck does not support the majority’s position since in that case the “hospital’s staff and facilities aided in the operation” (id. at 718) upon which the malpractice claim was based. In contrast, here, the malpractice claim is premised on a failure to diagnose, as to which there is no proof of the hospital’s involvement.

Since plaintiffs have failed to meet their burden on this motion, defendant physician’s failure to oppose it does not warrant a different result.