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Pointing to the failure of a medical malpractice plaintiff's expert to address a defense expert's opinions, and to the law on failing to medically discover an "unindicated condition," a state appeals court on Tuesday threw out a malpractice and wrongful death action lodged against a Manhattan hospital center after an emergency patient died.

An Appellate Division, First Department panel wrote in the decision tossing out the suit against one named defendant, New York Presbyterian Hospital-New York Weill Cornell Medical Center, that plaintiff Donna Rotante's expert "failed to address the opinions and conclusions of defendant's expert regarding decedent's condition upon arrival at the [hospital center's emergency department]."

In a case involving a patient on dialysis who had a bacterial staph infection that a laboratory discovered but did not report to the patient, the panel also wrote that "the failure to investigate a condition that would have led to an incidental discovery of an unindicated condition, does not constitute malpractice," quoting David v Hutchinson, 114 AD3d 412.

The unanimous panel's opinion affirmed the 2018 decision of Bronx Supreme Court Justice Lewis Lubell that granted summary judgment dismissal of the suit against the hospital center. At least one other defendant, a doctor, is named in the lawsuit as a defendant, according to the caption of the First Department's decision.

Rotante's lawsuit, which appears to have alleged both medical malpractice and wrongful death, was filed in 2010. Underlying documents in the action were unavailable.

The patient who, according the panel, died three days after arriving at the hospital center's emergency department years ago, was not named by the panel.

Rotante's attorney in the appeal of Lubbell's dismissal, Annette Hasapidis of The Hasapidis Law Offices in Scarsdale, said Wednesday that she and her client "are disappointed with the court's determination, and we felt confident that our expert witness' opinion was sufficient to warrant a jury trial."

She added that they are "weighing our options at this point" regarding whether seek leave to appeal the First Department's ruling. She also noted that her client, Rotante, is the widow of the decedent in the case, and she noted that other defendants still remain in the suit, including a dialysis center where the decedent had been treated.

Daniel Ratner, a partner at Heidell, Pittoni, Murphy & Bach, who represented New York Presbyterian  hospital-New York Weill Cornell Medical Center, could not be reached for comment.

According to the panel, the male patient arrived at the hospital center's emergency department in the days after an unaffiliated laboratory had found he'd tested positive for Methicillin Sensitive Staphylococcus Aureus, a bacterial staph infection.

Panel Justices Tom Sweeny, Sallie Manzanet-Daniels, Barbara Kapnick, Jeffrey Oing and Anil Singh wrote that the male patient had low blood pressure when he came the emergency department. But he was coherent, didn't need assistance to walk, and was able to play with his child in a waiting room, the justices also wrote.

The patient was then reassessed by a triage nurse about 90 minutes later. About 15 minutes after that, though, he went unconscious and into cardiac arrest, said the justices.

An attending physician and a resident were able to resuscitate him and return his pulse to normal, the justices wrote, and he was then transferred to an intensive care unit.

When the patient's dialysis treatment center was then called, said the justices, the hospital staff learned that the male was positive for the bacterial staph infection.

At the summary judgment dismissal stage in the years-long litigation, the defendants submitted multiple types of evidence—an expert affirmation, the testimony of the attending medical personnel, the testimony of plaintiff, and the decedent's medical records—and were able to make a prima facie showing of entitlement to dismissal, the justices wrote.

As part of the evidence, the hospital center's expert opined that, because the male patient was coherent, could walk without assistance, and had denied chest paints at the emergency department, "there was no reason for the ED to suspect that he had MSSA and required immediate attention," the justices wrote.

The expert also opined that, based on medical records and experience, "even if [the hospital center] was to have quickly discovered the bacteremia, decedent's cardiac arrest was unavoidable."

In turn, said the justices, "plaintiff's expert failed to address the opinions and conclusions of defendant's expert regarding decedent's condition upon arrival at the ED, which included … no indication that he was bacteremic."

"Further, plaintiff's expert merely speculated that if defendant had timely discovered the life-threatening condition, decedent would have had a 30 percent chance of recovery," the justices continued.

They concluded the opinion by writing that "the failure to investigate a condition that would have led to an incidental discovery of an unindicated condition, does not constitute malpractice."