Credit: gpointstudio/Shutterstock.com

A medical malpractice plaintiff's presenting of medical records was sufficient to show the potential merits of her claim and allow her to survive a dismissal motion in a case focused on whether her fallopian tubes were removed without her consent, a state appeals court has ruled.

In a tightly written opinion, an Appellate Division, First Department panel said Patrice McKenzie's records, which “contain admissions sufficient to establish the potential merits of [her] action based on the conduct of non-moving defendant Dr. Gary Goldberg for, inter alia, lack of informed consent,” allowed her to survive dismissal.

In making that part of its ruling, the panel cited in its opinion Adams v. Agrawal cf. (meaning, compare) Marcello v. Fletcher, and it included in the Marcello cite the following quoted language from that decision: “There indeed are limited instances in which … the pertinent hospital/medical records … may be tendered in lieu of an affidavit of merit.”

Addressing content found in McKenzie's medical records, the unanimous panel wrote that the “records suggest that McKenzie consented to the removal of her fallopian tubes in the event that malignancy was discovered during the exploratory laparoscopy which she was scheduled to undergo.”

The panel said, “no malignancy was discovered during the procedure; but, defendants nonetheless removed her fallopian tubes bilaterally and, in doing so, caused defects of the small bowel and sigmoid colon.”

The panel further said in its decision that the lower court had properly exercised its discretion in denying the motion to dismiss by the defendants based on McKenzie's failure timely serve her 2016-filed complaint.

“In opposition to [the] motion [on timely service], plaintiffs were required to 'demonstrate a reasonable excuse for the delay and a meritorious claim,'” the panel wrote, quoting Stevens v. Stevens.

“Here, plaintiffs offered a reasonable excuse based on their need to receive and review the medical records forming the basis for the medical malpractice and lack of informed consent claims,” the panel said, citing, among other cases, Rose v. Our Lady of Mercy Medical Center.

The April 23 decision by the panel of Justices Dianne Renwick, Rosalyn Richter, Ellen Gesmer, Cynthia Kern and Anil Singh affirmed a 2018 decision by Bronx Supreme Court Justice Lewis Lubell that denied dismissal.

Doralba Lassalle of Morelli & Lassallem, representing the plaintiffs, including McKenzie, said in an email: “We are pleased with the court's decision. The panel's decision was thoughtful and insightful.”

Judy Selmeci, a Wilson Elser Moskowitz Edelman & Dicker partner in New York, represented the defendants and could not be reached for comment. According to the First Department panel's decision, the defendants included Jack D. Weiler Hospital and Montefiore Health System, among others.