HASHEM v. OSORIO (2021)

Judgment, Supreme Court, New York County (Martin Shulman, J.), entered August 5, 2020, dismissing the complaint, and bringing up for review an order, same court and Justice, entered on or about June 16, 2020, which granted defendants’ motion for summary judgment, unanimously affirmed, without costs.

Defendants’ expert addressed all aspects of plaintiff's claim, opining that defendants did not deviate from good and accepted medical care in timely diagnosing plaintiff with HIT, that they correctly used her post-surgical platelet levels as a baseline, considered HIT in the differential diagnosis, and performed diagnostic tests for HIT when plaintiff's clinical presentation warranted it (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];  Roques v. Noble, 73 A.D.3d 204, 899 N.Y.S.2d 193 [1st Dept. 2010]).  Plaintiff presented with a number of comorbidities, including Raynauds Syndrome and significant cardiovascular disease, thus requiring multiple consultations from multiple disciplines to determine the cause of her low platelet count and her cyanotic left fingers.

In response, plaintiff's expert failed to raise a question of fact, the opinion being vague and conclusory (see De Jesus v. Mishra, 93 A.D.3d 135, 139, 939 N.Y.S.2d 403 [1st Dept. 2012];  Abalola v. Flower Hosp., 44 A.D.3d 522, 843 N.Y.S.2d 615 [1st Dept. 2007]).  While the expert disagreed with the use of a post-surgical platelet count as a baseline, the expert failed to explain why, a particular flaw where defendants’ expert explained that surgery generally lowers platelet levels, making that period of time the appropriate choice to begin following the platelet count.  The expert also stated that HIT should have been diagnosed earlier, but did not say when, or address the comorbidities complicating the diagnosis.  Also fatal to plaintiff's case is that her expert failed to sufficiently aver how an earlier diagnosis would have prevented plaintiff's loss of fingers when heparin had already been discontinued days earlier (see Concepcion v. City of New York, 139 A.D.3d 606, 33 N.Y.S.3d 28 [1st Dept. 2016];  David v. Hutchinson, 114 A.D.3d 412, 980 N.Y.S.2d 38 [1st Dept. 2014]).