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Brief of Assunta v. Rubin

Written February 11, 2021

Failure to Disclose Risk of Neurosyphilis Did Not Deviate from Standard of Care Resulting in Delayed Diagnosis When Patient Didn’t Take Ordered Tests

In the case of Assunta v. Rubin, 2020 NY Slip Op 07847, the Appellate Division, Second Department, ruled that a case from the New York Supreme Court was appropriately dismissed after a motion for summary judgment by the defendant, and that the plaintiff should not be allowed to reargue her case. In the ruling, the Second Department stated that the plaintiff had failed to establish that the defendants had acted improperly in treating her husband, resulting in the worsening of his condition. Moreover, they stated that the complaint against the defendant was overly broad and conclusory in its allegations. As a result, they affirmed the lower court’s motion to dismiss, with costs awarded to the defendants.

The plaintiff in this case is the wife of a man who sought medical care from one of the defendants, a neurologist, after suffering from seizures. The plaintiff’s husband (herein “the patient”) was diagnosed with a seizure disorder during his first visit in July 2015, and was treated with anti-seizure medication on that basis. On several repeated visits to the defendant, the patient’s diagnosis remained the same. That changed on the fourth and final visit to the neurologist in December 2015, when the doctor discovered the patient showed signs of potential memory loss. 

Due to the development of the patient’s memory loss, the defendant ordered a variety of tests for the plaintiff’s husband, including a test known as a rapid plasma reagin, which would rule out neurosyphilis. The patient never actually had these tests done, however, and instead sought out another neurologist, the second defendant in this case. In a phone conversation, the plaintiff notified the first plaintiff that the patient had failed to take any of the tests that had been ordered, and that he had no intention of doing so. Subsequently, the patient’s condition worsened, and he was finally diagnosed with neurosyphilis in June 2016, six months after the first defendant ordered tests that might have confirmed the diagnosis.

The plaintiff brought a medical malpractice lawsuit against both neurologists on behalf of her husband for failing to diagnose his neurosyphilis, resulting in a delay of treatment that resulted in severe impairment. She alleged that her husband might have gone through with the tests that were ordered by the first defendant if he knew there might have been a risk of neurosyphilis, and that the failure to disclose this information led to a delay in treatment. As such, she alleged the neurologists violated their duty of informed consent by failing to fully disclose the possible consequences of not taking the ordered tests.

In response, the defendants made a motion for summary judgment, arguing that they had not violated their duty of care towards the patient and that there were no issues of triable fact with respect to their own conduct. The Supreme Court agreed, stating in its ruling that the defendants had shown they had not deviated from the accepted standard of care, and their actions had not caused the patient’s injuries. Moreover, the court noted that the plaintiff’s expert witness failed to adequately demonstrate the patient would have gone through with the ordered tests if the reason for the tests were explained. As such, the motion for summary judgment was granted.

On appeal to the Appellate Division, Second Department, the plaintiff asked for an opportunity to reargue the case against the motion for summary judgment. The Second Department dismissed this request, saying that none of the evidence submitted by the plaintiff shows the defendants acted inappropriately in any way. As such, the request to reargue the motion for summary judgment was denied, and a bill of costs was awarded to the defendants.

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