Deane v. Tracer (2025): Histopathological Proof as a Shield Against Summary Judgment in Foreign-Object Malpractice Claims

1. Introduction

Deane v. Tracer, 237 A.D.3d 1156 (2d Dep’t 2025) addresses whether a patient who discovers a foreign object in her colon nine years after a colonoscopy may survive a motion for summary judgment by relying on expert pathology and surgical opinions. The appellant, Ms. Durlia Deane, claimed that Dr. Robert Tracer negligently left a fragment of the colonoscope in her bowel during an April 2008 colonoscopy. Tracer (and a putative co-defendant, Dr. Charles Bigajer) argued that the object was an ingested chicken bone, not medical equipment, and successfully obtained summary judgment in the Supreme Court (Kings County). On appeal, the Second Department reinstated the malpractice claim against Tracer while affirming dismissal as to Bigajer. The Court’s decision clarifies two important procedural–substantive intersections:

Tolling of motion deadlines during the COVID-19 Executive Orders, and
The evidentiary threshold a plaintiff must meet—through histopathology and specialized surgical opinions—to raise a triable issue of fact that defeats summary judgment in “foreign-object” malpractice suits.

2. Summary of the Judgment

Timeliness of Motion: Defendants’ summary-judgment motion, filed July 31 2020, was deemed timely because the COVID-19 Executive Orders tolled the post–note-of-issue 60-day deadline until November 3 2020.
Prima Facie Showing: Defendants met their prima facie burden through an expert gastroenterologist who asserted that no part of a colonoscope could break off and that Ms. Deane likely ingested a bone.
Plaintiff’s Rebuttal: Ms. Deane produced two experts—a gastrointestinal pathologist and a general surgeon trained in endoscopy—who analyzed histology slides and operative photos, opining that the removed object was non-organic and consistent with colonoscope material.
Outcome: The appellate court held that the competing expert analyses created a classic “battle of the experts,” precluding summary judgment for Tracer. Conversely, no evidence linked Bigajer to the 2008 procedure; therefore, dismissal as to him remained intact.
Disposition: Judgment modified: claim against Tracer reinstated; claim against Bigajer dismissed.

3. Analysis

3.1 Precedents Cited

The Court wove together procedural and substantive precedents:

Brash v. Richards, 195 A.D.3d 582 (2021): Established statewide that Governor Cuomo’s Executive Orders tolled procedural time limits. Applied here to save the defendants’ motion.
Souffrant v. M&K Real Estate Assoc., LLC, 225 A.D.3d 914 (2024): Reiterated Kings County’s 60-day post–note-of-issue rule—contextual support for the timeliness discussion.
Santiago v. Abramovici, 226 A.D.3d 720 (2024); Martinez v. Orange Reg’l Med. Ctr., 203 A.D.3d 910 (2022): Articulated defendants’ dual prima facie burden—no deviation or no causation—underpinning the burden-shifting framework used here.
Stewart v. North Shore Univ. Hosp. at Syosset, 204 A.D.3d 858 (2022): Cautioned that conflicting medical opinions ordinarily foreclose summary judgment; relied upon to justify reinstatement.
Barnaman v. Bishop Hucles Episcopal Nursing Home, 213 A.D.3d 896 (2023): Warned that conclusory expert assertions are insufficient; the Court distinguished Deane’s experts as sufficiently specific.
Murphy v. Carleton Ave. Family Dental, 262 A.D.2d 376 (1999): Used to dismiss claims against co-defendant where mere billing references fail to show involvement.

Collectively, these cases supplied both the procedural scaffold (timeliness) and the substantive test (expert specificity) for the Court’s analysis.

3.2 Legal Reasoning

Burden-Shifting Framework. The Court restated the well-settled rule: defendant must first negate deviation or causation. Tracer’s gastroenterology expert provided a detailed affidavit addressing every allegation in the pleadings and bill of particulars, thereby satisfying this burden.
Plaintiff’s Counter-Evidence. To rebut, Ms. Deane had to produce non-speculative expert proof. The pathology expert anchored his opinion in microscopic slides from the sigmoid colectomy and concluded the object was “non-organic.” The surgeon expert linked that opinion to endoscopic mechanics, explaining how a colonoscope sheath could splinter without fully obstructing the lumen, harmonizing with Ms. Deane’s intermittent symptoms.
Triable Issue of Fact. Because both sides offered credentialed experts espousing diametrically opposed conclusions rooted in admissible evidence, the matter became quintessentially factual, unfit for summary adjudication.
Dismissal of Bigajer. Lacking operative notes, testimony, or any first-hand link, the Court found only stray references to Bigajer’s name on billing records. Under Murphy and similar authority, this was insufficient to raise even a factual dispute about his participation.

3.3 Impact

The decision carries several important consequences:

Elevating Histopathology. For foreign-object claims, microscopic analysis can now stand on equal footing with radiology or surgical narratives in defeating summary judgment.
Long-Latency Foreign-Object Cases. Deane shows that a nearly decade-long gap between procedure and discovery does not, by itself, doom a plaintiff if expert testimony plausibly bridges causation.
Clarifying COVID Tolling. The Court cements Brash’s interpretation, offering litigants certainty that motions filed within the executive-order window remain timely.
Defensive Drafting Lessons. Providers seeking dismissal must address not only radiological possibilities but also histopathological distinctions; blanket “it was a bone” assertions are vulnerable.
Narrowing Co-Defendant Liability. The decision warns plaintiffs that mere administrative references (e.g., billing codes) cannot manufacture liability without substantive evidence of participation.

4. Complex Concepts Simplified

Summary Judgment: A procedural device enabling a court to dispose of a claim without trial when no genuine factual issues require jury resolution.
Prima Facie Burden: The initial burden of proof resting on the moving party (here, defendants) to show entitlement to judgment as a matter of law.
Triable Issue of Fact: Any genuine dispute over material facts that must be decided by a fact-finder (jury or judge) rather than on papers alone.
Histopathology: Microscopic examination of tissue samples to identify disease processes or, as here, distinguish organic (bone) from non-organic (plastic/metal) matter.
Foreign-Object Doctrine: A malpractice principle often triggering a relaxed statute of limitations when a doctor leaves a “foreign object” in a patient. Though limitations were not at issue, causation hinged on whether the item was a foreign object or an ingested bone.

5. Conclusion

Deane v. Tracer illustrates the judiciary’s unwillingness to truncate medical-malpractice claims when plaintiffs marshal concrete, scientifically anchored evidence. By recognizing histopathological proof as sufficiently probative to create a factual dispute, the Second Department reinforces a rigorous evidentiary standard for defendants seeking early dismissal in foreign-object suits. Simultaneously, the Court fortifies precedent on COVID-19 tolling and clarifies that tangential billing references cannot sustain malpractice allegations against uninvolved physicians. Going forward, litigants in New York should expect closer scrutiny of the scientific foundations underpinning expert affidavits—an evolution that will likely influence both the prosecution and defense of complex medical negligence cases statewide.