Dylan Braverman Obtains Dismissal of Death and Malpractice Claims Against a Pulmonologist

On a motion to reargue the court’s prior decision, Dylan Braverman argued that the court applied the wrong standard of review in denying a pre-answer motion to dismiss all claims against a pulmonologist who was treating a lung cancer patient. Dylan had originally moved on the grounds that the claim was barred due to the EDTPA COVID-19 immunity, since the lung cancer patient’s care was impacted by the fact that all outpatient care was closed due to COVID-19 restrictions in the early days of the pandemic. Plaintiff countered that there were factual questions relevant to surgical decisions that required discovery and a determination by the jury. The court agreed. However, in moving to reargue, Dylan pointed out that the court applied the wrong standard of review in this instance, where the proper standard of review was merely whether the care was impacted by the COVID-19 pandemic. Finding that BPN met that burden, and that the factual issues introduced by plaintiff were not supported by the record, all claims against the pulmonologist were dismissed.