Patrick J. Brennan and Jennifer Y. Gutterman win summary judgment in a medical malpractice action alleging failure to diagnose cervical cancer.

FKB represented a large diagnostic laboratory in a case where the plaintiff alleged a failure to diagnose cervical cancer by misreading a pathology slide. The plaintiff sued the laboratory after the 2 ½ year statute of limitations for medical malpractice had expired, but before the 3 statute of limitations for negligence had expired. The plaintiff attempted to characterize her claim as sounding in ordinary negligence and not medical malpractice by alleging that the laboratory had misread the slide because it had not maintained the proper protocols and guidelines, or followed the appropriate regulations. Prior to the end of discovery, FKB moved for summary judgment arguing that the claim was barred by the statute of limitations because, in reality, it sounded in medical malpractice and not ordinary negligence. The court agreed, and dismissed the complaint in its entirety. The order was upheld by the Appellate Division, 1st Department.