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When she reported intense abdominal pain during her pregnancy's course, L.A.’s primary-care physician sent her to a radiologist.  Dr. B.S. took two sonograms and ultimately concluded her baby was fine, and even though he could not determine the cause of her pain, he issued a report which concluded there were “no abnormalities.”

Claiming that B.S. failed to properly diagnose her, and that other doctors purportedly relied on the report, which caused a delay in seeking treatment for her appendicitis during her pregnancy, and that delay eventually lead to the loss of the baby and injuries to L.A., a personal-injury case was later filed with the New York County Supreme Court.

After trial, when a jury returned a verdict against B.S., he sought to vacate the outcome (as against him). And when that request was denied, an appeal to the Appellate Division, First Department, followed.

On its review of the record, the AD1 concluded that since the radiologist’s function was limited in scope – i.e., to determine whether the source of the pain was gynecological in origin – and given that the primary care doctor testified that she did not rely on the radiologist’s report “in ruling in or out the possibility of appendicitis,” the judgment against Dr. B.S. was vacated.

The AD1 was of the view that there was “no valid line of reasoning or permissible inferences which could possibly lead the jury to the conclusion” that any purported departure by Dr. B.S. from the governing standard of care “was a substantial factor in causing the delay in diagnosis of plaintiff's appendicitis and her resulting injuries.” (Interestingly, the decision notes that B.S. testified that it was “not within his role to provide recommendations in his report or advise physicians what they should do next.”)

Was the primary care physician primarily liable?

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L.A. v. B.S.