Darlene Miller and James Miller v. John Ross McGrath, M.D., Kaleida Health, Inc., Buffalo General Medical Center, Gates Vascular Institute, WNY Radiology Associates, LLC, Carla A. Frederick, M.D., and UBMD Internal Medicine

Summary

The Appellate Division, Fourth Department, modified an order granting summary judgment in a medical malpractice action arising from a bronchial artery embolization procedure. The court reinstated claims against the interventional radiologist concerning the performance of the procedure without bronchoscopy data, its medical indication, and the untimely post-procedure note, while affirming dismissal of specified claims against the consulting pulmonologist and her practice.

Holdings

1. Claims dismissed with plaintiffs' counsel's consent were not properly before the Appellate Division because no appeal lies from that portion of the order.
2. Summary judgment was improperly granted on claims that McGrath performed the procedure without first having the data a completed bronchoscopy would have provided and failed to ensure that the procedure was medically indicated.
3. Summary judgment was improperly granted on the claim that McGrath failed to prepare a timely post-procedure note.
4. Summary judgment was properly granted to the UBMD defendants on claims that Frederick failed to coordinate with medical providers before the embolization and failed to follow up with Miller after the procedure.

Questions Presented

1. Whether plaintiffs raised triable issues of fact concerning whether McGrath departed from the applicable standard of care by performing the bronchial artery embolization without data that a completed bronchoscopy would have provided and without ensuring that the procedure was medically indicated.
2. Whether plaintiffs raised a triable issue of fact concerning McGrath's alleged failure to prepare a timely post-procedure note and whether that failure was a proximate cause of injury.
3. Whether summary judgment was properly granted to Frederick and UBMD on claims that Frederick failed to coordinate with medical providers before the procedure and failed to follow up with Miller afterward.
4. Whether plaintiffs could appeal claims dismissed on consent.

Disposition

reversed_and_remanded