MARTINEZ v. RPA (2023)

Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about July 12, 2021, which denied defendants Venkata R. Ravi, M.D., Medinova Physicians, PLLC, and Ravi Physician, P.C.’s motion for summary judgment dismissing the complaint as against them, and denied defendant Marisa Leonardo, RPA–C's motion for summary judgment dismissing the complaint as against her, unanimously modified, on the facts and in the exercise of discretion on consent of the parties, to dismiss the complaint as against Ravi Physician, P.C., and otherwise affirmed, without costs.

As an initial matter, plaintiffs do not dispute that the complaint should be dismissed against Ravi Physician P.C., as the corporation ceased to exist prior to the alleged malpractice.  Accordingly, we dismiss the complaint as against it.

The remaining defendants failed to demonstrate prima facie their entitlement to summary judgment because they failed to submit evidence establishing that they “did not depart from good and accepted medical practice, or that any such departure was not a proximate cause of the plaintiff's alleged injuries” (Anyie B. v. Bronx Lebanon Hosp., 128 A.D.3d 1, 3, 5 N.Y.S.3d 92 [1st Dept. 2015]).  Plaintiffs’ bill of particulars asserted a claim for inaccurate record keeping, and point to specific inaccuracies in defendants’ medical records, such as duplicate notes during visits and conflicting assessments on the same visits.  Defendants’ expert did not address those inaccuracies and discrepancies in the records (see Cregan v. Sachs, 65 A.D.3d 101, 108, 879 N.Y.S.2d 440 [1st Dept. 2009]).

A reasonable jury could credit decedent's testimony over the allegedly inaccurate records.  Moreover, plaintiffs’ expert affidavit, which conflicted with defendants’ expert as to, among other things, whether Dr. Ravi properly supervised the physician's assistants and whether decedent's blood work or his weight loss was a sign of pancreatic cancer, raised further issues of fact to defeat summary judgment (see Shewbaran v. Laufer, 177 A.D.3d 510, 511, 111 N.Y.S.3d 601 [1st Dept. 2019]).