FKB’s Tracy S. Katz Successfully Defends Second Department Appeal and Obtains Dismissal of Medical Malpractice Claims


FKB obtained a unanimous ruling from the Appellate Division, Second Department, affirming the dismissal of a medical malpractice case against a physician assistant for alleged failure to diagnose and treat a 48 year-old male plaintiff for endocarditis. Plaintiff claimed the alleged misdiagnosis resulted in treatment with antibiotics, a heart murmur, brain calcifications, transient global amnesia, and the potential need for a future valve replacement surgery.

Oral argument in the Second Department focused on questions about the standard of care as well as the diagnosis of endocarditis that was made via a blood culture approximately 12 days after the patient was seen in the defendants’ ER.  FKB successfully argued that Kings County Supreme Court correctly determined that there was a lack of proximate cause and granted summary judgment dismissal.  The Second Department rejected plaintiff’s expert’s only theory that the defendant should have done “additional testing or studies” in the ER, which would have led to the administration of antibiotics.  Plaintiff’s expert failed to explain what those studies were, what they would have shown or how that would have altered the outcome.

In this case, additional testing including a chest x-ray, WBC, urinalysis echocardiogram and EKG were done 6 days after the defendant’s treatment and were all negative. Therefore, even had the defendants done additional testing, the results would have been negative and would not have led to the administration of antibiotics.  Furthermore, plaintiff’s expert never opined that any infection was present at the presentation to the defendants’ ER, nor did he opine that any such infection was diagnosable at that time.  To the contrary, the defendant’s expert specifically explained that any work-up would have revealed no evidence of infection, and the Second Department unanimously concurred with this finding and affirmed the defendant’s summary judgment dismissal.

If you have any questions about this decision, or the defense of medical practitioners in general, please contact Neil Kornfeld or Tracy Katz.


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