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Broke the chain of causationMay 1, 2010

Wilkins v Khoury, 2010 NY Slip Op 03435 (2d Dept. 2010)

“While the plaintiff, in opposition, raised a triable issue of fact as to whether the defendants departed from good and accepted podiatric practice by failing to diagnose her potentially gangrenous condition and failing to instruct her to go to a hospital immediately for intravenous antibiotic treatment, she failed to raise a triable issue of fact as to whether the defendants’ conduct was a proximate cause of her injuries (see Brocco v Westchester Radiological Assoc., 175 AD2d 903, 904-905). The plaintiff’s voluntary act of not going to the hospital for intravenous antibiotic treatment when she was instructed to do so by an orthopedic surgeon, who saw the plaintiff after she was treated by the defendants, was independent of and far removed from the defendants’ conduct and, thus, was a superseding act which broke the causal nexus (see Pierre v Lieber, 37 AD3d 572; Brocco v Westchester Radiological Assoc., 175 AD2d at 904-905).”

The question of whether an intervening act breaks the causal nexus between the accident and injury plays out frequently enough in no-fault practice that it seems instructive to follow this line of cases.

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