Edmonds v. QuellmanEdmonds v. Quellman
Appeal from an order of the Supreme Court (Dier, J.), entered June 24, 1999 in Warren County, which, inter alia, denied a motion by defendant North Country Vascular Diagnostics, Inc. for summary judgment dismissing the complaint against it.
On February 15, 1994, George Edmonds was examined by defendant Joseph L. Quellman, an orthopedic surgeon, who recommended that Edmonds undergo knee replacement surgery. At that time, Quellman’s physical examinatiоn of Edmonds revealed a near total occlusion of the arteries in his right leg, that is, Quellman was unable to palpate Edmonds’ fоot pulses. To confirm this clinical finding, Quellman ordered noninvasive diagnostic tests which were performed by defendant North Country Vasсular Diagnostics, Inc. on April 14,
At issue on appeal is the limited question of the liability, if any, of North Country for Edmonds’ injuries and death. Specifically, plaintiffs claim that there is а question of fact as to whether North Country timely communicated the results of Edmonds’ arterial tests to Quellman before he performed the surgery, a contention with which Supreme Court agreed in its denial of North Country’s motion for summary judgment. Even if we were to assume that such a claimed question of fact were material to the legal question of whether North Country could be liable for damages in this malpractice and wrongful death action for failing to timely communicate the results of the tests (which we do not), a review of the record reveals that no such factual question actually exists. Accordingly, North Country’s motion for summary judgment should have been granted.
At his November 16, 1998 examination before trial, Quell-man clearly testified that he received the results of the arterial tests from North Country before he performed surgery on Edmonds. In an effort to counter this direct testimony, plaintiffs point to an earlier deposition of North Country’s medical director in which he described a July 1996 telephone conversation with Quellman in which the latter allegedly claimed thаt he had not received the report prior to the surgery. We do not agree with plaintiffs’ contention that this hearsay version of a prior inconsistent statement creates a question of fact since the substance of the telephone conversаtion was unequivocally contradicted by Quellman’s subsequent sworn testimony. When confronted at his own deposition with the alleged July 1996 telephone conversation, Quellman testified that he did not recall having the conversation. While we recognize that a priоr inconsistent hearsay statement may, under certain circum
In any event, evеn if this Court were to conclude that the hearsay statement is admissible and indeed creates a question of fact as to whether the test results were timely communicated to Quellman, summary judgment in favor of North Country is nevertheless appropriate. Whether Quellman did or did not receive the test results prior to surgery is not material to the question of whether North Country can have any legal liаbility for Edmonds’ injuries and death. Quellman already knew of the arterial occlusion before he ordered the tests and his decision tо proceed with the surgery was not dependant on their results. Even if Quellman had not received the results of the tests prior to surgery, the decision to proceed in the absence of same was his alone to make. As North Country aptly points out, any clerical error of failing to timely mail the test results could have been easily remedied by a telephone call from Quell-man requesting an additional copy or a verbal confirmation of their results. Said differently, the claimed failure to timely mail or communicate the test results was not a proximate cause of the alleged malpractice and wrongful death. No act of North Country caused the surgeon to proceed with an allegedly contraindicated surgery (see, Sheehan v City of New York,
As a final matter, we reject plaintiffs’ contention that the issue of proximate cause is not properly before this Court. Of note, North Country’s medical dirеctor averred that its only role in the care and treatment of Edmonds was to perform studies on the circulatory status of Edmonds’ legs. Hе specifically averred that “[a]t no time was [he] or anyone at North Country * * * requested by * * * Quellman, or anyone else, to detеrmine or render any opinion as to whether * * * Edmonds was an appropriate surgical candidate.” He further noted that had Quеllman not received the test results in the mail prior to surgery, he could have contacted North Country for an additional faxed copy or even a verbal report. In our view, these
Mercure, J. P., Peters, Spain and Graffeo, JJ., concur. Ordered that the order is modified, on the law, with costs to defendant North Country Vascular Diagnostics, Inc., by reversing so much thereof as denied the motion by defendant North Country Vascular Diagnostics, Inc.; motion granted, summary judgment awarded to said defendant and complaint and all cross claims dismissed against it; and, as so modified, affirmed.