Dov Sternberg (Partner- New York, NY) and Francis Howell (Associate-New York, NY) obtained summary judgment in the Supreme Court of the State of New York, Kings County, on behalf of Wilson Elser’s client, a primary care physician (PCP). This medical malpractice and wrongful death action arose from the death of the client’s 60-year-old patient, who suffered a fatal pulmonary embolism after being diagnosed and treated for pneumonia. The plaintiff alleged our client failed to properly rule out a pulmonary embolism by not ordering a CT scan or D-Dimer testing. After the patient suffered a syncopal episode while driving on June 23, 2019, causing a fatal motor vehicle accident that also left his wife with multiple fractures requiring hospitalization and rehabilitation, he was diagnosed with a saddle pulmonary embolism and died two days later.

In moving for summary judgment and dismissal of the wife’s claims, Dov and Frank successfully countered procedural arguments about the motion's timeliness, and the court found good cause for a brief delay in filing beyond the deadline. On the merits, they established through expert testimony and medical records that the PCP conducted a thorough workup over three visits between June 13 and June 18, 2019. Although pulmonary embolism was appropriately considered in the differential diagnosis, a battery of tests supported the pneumonia diagnosis and made pulmonary embolism highly unlikely. The client subsequently referred the patient to a pulmonologist for evaluation, who agreed with the PCP’s diagnosis.

Dov and Frank further argued that the saddle pulmonary embolism was an acute event that developed approximately 48 hours before the patient’s death ‒ well after the PCP’s last examination. Their defense expert opined that even if a CT scan had been performed during the treatment period, it would not have revealed an embolism because one had not yet developed. Although plaintiff’s expert maintained additional testing should have been ordered, the court found those opinions conclusory and speculative, and determined they failed to establish a departure from the standard of care or proximate causation.

Dov and Frank also secured dismissal of the wife’s personal injury claims; the court held the PCP owed no duty of care to the wife, who was not the patient, and that no exception applied. The court also found the motor vehicle accident was too remote from the alleged failure to diagnose the pulmonary embolism to support liability, and that our client had no duty to warn or prevent the decedent from driving. Accordingly, the court granted summary judgment, dismissing this highly sympathetic and high-stakes case, a phenomenal result for the client.