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Brief of Cucchiara v. Fucinelli

Written February 4, 2021

Chiropractor, Neurologist Did Not Violate Standard of Care for
Not Diagnosing Patient’s Skin Cancer

In the case of Cucchiara v. Fucinelli, 2020 NY Slip Op 07859, the plaintiff’s appeal of a summary judgment from the New York Supreme Court was dismissed by the Appellate Division, Second Department. The dismissal was based on a failure of the plaintiff to establish that the defendants violated their duty of care in failing to diagnose a carcinoma. The lower court granted the defendant’s motion for summary judgment, and the Second Department affirmed.

The plaintiff in this case is the brother of a man who allegedly sustained injuries to his back and neck in a motor vehicle accident on March 25, 2011. Due to these injuries, the plaintiff’s brother sought chiropractic and neurological care from the defendants, who were a licensed chiropractor and neurologist, respectively. At the time, the plaintiff’s brother, now deceased, complained of no issues with his skin, according to both defendants.

Several years later, in May 2014, the plaintiff’s brother went to a dermatologist complaining of strange swelling behind his ear. On June 4, 2014, the dermatologist conducted a biopsy of the swollen area, and eight days later, it was confirmed to be an adenocarcinoma, a type of skin cancer. The plaintiff brought a medical malpractice suit against the neurologist on behalf of his brother, and additionally brought forth an allegation of chiropractic malpractice against the chiropractor, for failing to diagnose the skin cancer when they examined him, alleging that their failure to diagnose a potential skin condition may have impacted his chances of survival.

In response to the lawsuit, both defendants made a motion for summary judgment seeking to have the medical malpractice case dismissed. They argued, based on their medical records and the sworn testimony of their staff, as well as the testimony of their expert witnesses, that they had no reason to believe the decedent had any skin problems while they treated him. In addition, they argued that their actions had no impact on the decedent’s chances of survival, considering that he promptly sought dermatological care when he noticed the swollen area in May 2014.

The lower court agreed with the defendants, showing they had not substantially deviated from the standard of care expected of them as medical professionals. The court stated that the defendants had proved a prima facie case that there were no issues of triable fact with respect to their own conduct towards the decedent, and that their conduct was otherwise not a proximate cause of the decedent’s injuries. As a result, they granted the motion for summary judgment and dismissed the case. The plaintiff appealed the case to the Appellate Division, Second Department, seeking to have the case restored.

Unfortunately for the plaintiff, the Second Department agreed with the lower court’s ruling. The Second Department pointed to an additional dermatologist’s appointment that the decedent had in July 2013, almost a year prior to the diagnosis of an adenocarcinoma, in which the dermatologist noticed “no suspicious lesions.” As such, the Second Department said that the plaintiff had failed to show that there were any issues of triable fact, making the dismissal appropriate. As a result, the Second Department affirmed the lower court ruling, and the case was dismissed.

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