Myers v. Ferrara

In Myers v. Ferrara, 56 AD3d 78 (2d Dept. 2008) the plaintiff died as a result inter alia of a significant delay in discovering that he had sustained an esophageal perforation. Defendant Dr. Sharma, a pulmonologist, evaluated the plaintiff and had concluded that esophageal perforation was one among three possible diagnoses when the plaintiff was transferred to the care of defendant Dr. Saltman, a cardio-thoracic surgeon. Plaintiff alleged that Dr. Sharma committed malpractice by failing to inform a Dr. Saltman of his concern that the plaintiff might have suffered an esophageal perforation. Dr. Saltman testified that regardless of the possible diagnoses he would have performed an esophagoscopy, and that he looked for a perforation. The Second Department held that the plaintiff's expert's conclusory assertion that Dr. Saltman would have found the perforation had Dr. Sharma told him about his concerns was insufficient to raise a triable issue of fact on the issue of causation, writing: Significantly, Dr. Saltman's statement was not an opinion expressed in a battle of experts concerning what should have, or would have, happened; rather, it was a direct statement, by the doctor actually involved in the treatment, that knowledge of Dr. Sharma's concerns would have made no difference in what he did. Dr. Saltman's testimony that he would have done nothing differently had he known of Dr. Sharma's concerns -- either by reading Dr. Sharma's notes, which he did not, or by speaking directly with him -- renders the plaintiff's expert affidavit insufficient to raise a triable issue of fact on the issue of causation. (Myers, supra, 56 AD3d at 85-86.)