Opinion
317 CA 19–00754
03-20-2020
Patrick J. WHELAN and Shirley P. Whelan, Plaintiffs–Appellants, v. MOUNT ST. MARY'S HOSPITAL OF NIAGARA FALLS, Timothy G. Dyster, M.D., and Niagara Frontier Radiologic Associates, PC, Defendants–Respondents, et al., Defendants.
FARACI LANGE, LLP, BUFFALO (JENNIFER L. FAY OF COUNSEL), FOR PLAINTIFFS–APPELLANTS. GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
FARACI LANGE, LLP, BUFFALO (JENNIFER L. FAY OF COUNSEL), FOR PLAINTIFFS–APPELLANTS.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER Appeal, by permission of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Niagara County (Frank Caruso, J.), entered April 16, 2019. The order denied the motion of plaintiffs to compel defendant Timothy G. Dyster, M.D. to attend a further deposition.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is granted.
Memorandum: Supreme Court erred in denying the motion of plaintiffs to compel defendant Timothy G. Dyster, M.D. to attend a further deposition and answer questions regarding the subsequent treatment of Patrick J. Whelan (plaintiff) at the Naples Community Hospital and Jackson Memorial Hospital. We agree with plaintiffs that Dr. Dyster may be questioned at a further deposition as an expert in the field of radiology regarding plaintiff's subsequent CT and contrast CT imaging and reports, the subsequent medical records, and the findings documented in the angiogram report (see Johnson v. New York City Health & Hosps. Corp., 49 A.D.2d 234, 236–237, 374 N.Y.S.2d 343 [2d Dept. 1975] ; see generally McDermott v. Manhattan Eye, Ear & Throat Hosp., 15 N.Y.2d 20, 26–30, 255 N.Y.S.2d 65, 203 N.E.2d 469 [1964] ). We also agree with plaintiffs that any such questions would not relate solely to the negligence of another defendant physician (see Clack v. Sayegh, 148 A.D.3d 1664, 1665, 50 N.Y.S.3d 227 [4th Dept. 2017] ; Carvalho v. New Rochelle Hosp., 53 A.D.2d 635, 635, 384 N.Y.S.2d 508 [2d Dept. 1976] ) and are relevant to plaintiffs' contention that defendants' negligent diagnosis and failure to adequately treat and care for plaintiff was the proximate cause of plaintiff's injuries (see Forgays v. Merola, 222 A.D.2d 1088, 1088, 636 N.Y.S.2d 509 [4th Dept. 1995] ; cf. Dare v. Byram, 284 A.D.2d 990, 991, 726 N.Y.S.2d 885 [4th Dept. 2001] ). We therefore reverse the order and grant the motion to compel Dr. Dyster to submit to a further deposition after he has had an opportunity to review the medical records related to plaintiff's subsequent treatment.