Part 1 of this article addressed proof of diminished chance for a cure or better outcome or increased injury and pain and suffering as a substantial factor or proximate cause of injury in failure to diagnose cancer cases. This article will address the application of law and evidence to medical malpractice cases dealing with failure to diagnose other medical conditions and illness.

The Second Department in Jump v. Facelle, 275 A.D.2d 345 (A.D.2d 2000) reversed the lower court’s setting aside of the verdict in favor of the plaintiff and reinstated the verdict finding the plaintiff’s expert’s testimony tends to establish that the negligent 11 or 12 hour delay in performing surgery increased the harm to the decedent by infection and decreased his chances of survival. There is also evidence that the decedent became septic over the 11-hour period of delay.