NOEL ABRAHAM ROSE, AS EXECUTOR OF THE ESTATE OF HERMINE BROWNE, plf-ap, v. DR. SALVATORE CONTE def-res, PHILIP J. KLAPPER, M.D. def

9657. NOEL ABRAHAM ROSE, AS EXECUTOR OF THE ESTATE OF HERMINE BROWNE, plf-ap, v. DR. SALVATORE CONTE def-res, PHILIP J. KLAPPER, M.D. def — Duffy & Duffy, Uniondale (James N. LiCalzi of counsel), for ap — LeClairRyan, P.C., New York (Barry A. Cozier of counsel), for res — Order, Supreme Court, Bronx County (Diane A. Lebedeff, J.), entered August 26, 2011, which granted the motion of defendants Dr. Salvatore Conte (Dr. Conte), Salvatore Conte, M.D., P.C., and Conte and Matfus, M.D., P.C. to set aside the jury verdict and grant a new trial, reversed, on the facts, without costs, and the motion denied.

In this wrongful death action predicated on medical malpractice, the jury heard testimony from plaintiff’s oncology expert that the decedent’s long-term primary care practitioner, defendant Dr. Conte, deviated from accepted medical standards when, upon the decedent’s return to Dr. Conte’s practice in February 2001, after a 21-month absence, with complaints of pain and other abdominal symptoms, he diagnosed her with irritable bowel syndrome (IBS), without referring her for an abdominal CT scan or a gastrointestinal (GI) work-up (which would have included the scan), so as to exclude other conditions, and that these diagnostic tests would likely have detected the presence of the tumor in the upper left quadrant of the abdomen. Due to this failure, the tumor was not definitively identified until March 2002, when the decedent returned from her native Jamaica with a positive abdominal sonogram, and Dr. Conte immediately referred her for a CT scan, which confirmed the mass. Plaintiff’s expert also opined that, based on this extended delay, the decedent was deprived of the opportunity for a cure, defined as five years’ survival without the disease, insofar as her tumor was much smaller at the time of her first complaints and would likely have been completely surgically resectable and amenable to treatment. By the time of the eventual surgery in May 2002, the tumor had become so massive, and invaded so many organs, that it was only partially resected, and, despite several years of oncological treatment, the decedent died in September 2007.