KAREN v. HOON CHOI (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated against defendant Hoon Choi, M.D.

Memorandum:  Plaintiff commenced this medical malpractice action seeking to recover damages for injuries sustained by her daughter (patient) as a result of defendants' alleged failure to address postsurgery complications in an appropriate and timely manner.  We agree with plaintiff that Supreme Court erred in granting the motion of Hoon Choi, M.D. (defendant) for summary judgment dismissing the complaint against him.  Defendant's own submissions, particularly his own deposition testimony and that of the attending neurosurgeon, raise an issue of fact whether defendant exercised independent medical judgment (see Burnett–Joseph v. McGrath, 158 A.D.3d 526, 527, 71 N.Y.S.3d 413[1st Dept. 2018];  Reading v. Fabiano, 137 A.D.3d 1686, 1687, 28 N.Y.S.3d 194 [4th Dept. 2016] ).  Indeed, the attending neurosurgeon testified that, in developing a treatment plan for the patient, he relied upon defendant's interpretation of the first, postsurgical CT scan.  Defendant testified that he formed his own interpretation of the CT scan in consultation with a team of physicians.  There is no basis for the court's conclusion that defendant relied upon a report prepared by a radiologist, particularly inasmuch as defendant testified that he did not believe that the report was available to him.