Ryan v. Santana

Appeals from an order of the Supreme Court, Oswego County (Norman W Setter, Jr., J.), entered May 12, 2008 in a medical malpractice action. The order, insofar as appealed from, denied in part the motions of defendants Hector B. Santana, M.D. and James B. Turchik, M.D. for summary judgment dismissing the complaint against them. It is hereby ordered that the order so appealed from is affirmed without costs. Memorandum: Plaintiffs commenced this action seeking damages for, inter alia, the medical malpractice of Hector B. Santana, M.D. and James B. Turchik, M.D. (defendants), which included their failure to diagnosis and treat the alleged case of Lyme disease sustained by Jessica Ryan (plaintiff). Defendants appeal from an order denying those parts of their respective motions seeking summary judgment dismissing the complaint against them with respect to plaintiff. We affirm, inasmuch as we agree with Supreme Court that plaintiffs raised a triable is [1538] sue of fact with respect to those parts of defendants’ motions (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]). In opposition plaintiffs submitted the affirmation of a neurological expert stating that, because defendants’ differential diagnoses for plaintiff included Lyme disease, defendants’ reliance on negative test results of Lyme disease tests in the absence of a confirmed alternative diagnosis deviated from the accepted standard of medical care. According to that expert, the immediate commencement of antibiotic therapy was required because early intervention offered a patient the best chance of recovery. The expert further stated that discharging plaintiff without a confirmed diagnosis and without consideration of antibiotic or antibacterial treatment in the absence of a confirmed diagnosis was also a significant departure from the accepted standard of medical care, particularly in light of the warning given on plaintiff’s discharge that plaintiff might become comatose (see Wahila v Kerr, 204 AD2d 935, 937 [1994]). Additionally, plaintiffs submitted the letter affirmation of an expert in infectious diseases who stated that the initial negative result on the Lyme disease test could have resulted from medication taken by plaintiff prior to her examination by defendants. The infectious diseases expert similarly concluded that defendants’ failure to confirm an alternative diagnosis or to begin plaintiff on an appropriate antibiotic therapy was a deviation from the accepted standard of medical care (see id.). We cannot agree with the dissent that the record is devoid of evidence that plaintiff in fact suffered from Lyme disease (cf. Kane v City of New York, 137 AD2d 658, 660 [1988]). The record establishes that, when they examined plaintiff, defendants observed that she exhibited symptoms that could be attributed to Lyme disease, and plaintiffs’ neurologist stated that those symptoms, including target lesions, were in fact indicative of Lyme disease (cf. Czeisler v Williams, 259 AD2d 278, 279 [1999]). Further, the conclusions of plaintiffs’ experts were also based in part on the medical records of a physician who examined plaintiff subsequent to defendants’ examination of her. Although those medical records are unsworn, they nevertheless are in admissible form inasmuch as they were submitted in support of the motion of defendants A.L. Lee Memorial Hospital and Jasmdiner Luthra, M.D. for summary judgment dismissing the complaint against them and are included in the record on appeal (see Kearse v New York City Tr. Auth., 16 AD3d 45, 47 n 1 [2005]). Thus, plaintiffs are entitled to rely on those records in opposing defendants’ respective motions (see gener [1539] ally Feggins v Fagard, 52 AD3d 1221, 1223 [2008]). The physician noted therein that there was “reasonable serologic evidence of Lyme disease,” that plaintiffs symptoms were similar to two of his patients with Lyme disease, and that plaintiffs test results supported a diagnosis of central nervous system Lyme disease. The physician also indicated that he had seen improvement in plaintiff with the application of antibiotics with respect to her cerebellar syndrome and the evidence of Lyme disease. We thus conclude that plaintiffs raised triable issues of fact concerning the alleged malpractice of defendants (see generally Alvarez, 68 NY2d at 324-325). All concur except Peradotto and Pine, JJ., who dissent and vote to reverse the order insofar as appealed from in accordance with the following memorandum.