Shulman v East Riv. Med. Imaging Assoc., P.C.

[*1] Shulman v East Riv. Med. Imaging Assoc., P.C. 2005 NY Slip Op 50829(U) Decided on May 10, 2005 Supreme Court, New York County Sklar, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2005
Supreme Court, New York County

TAMARA SHULMAN and BARRY JAY BENDES, Plaintiffs,

against

EAST RIVER MEDICAL IMAGING ASSOCIATES, P.C., Defendant.



118609/02

Stanley L. Sklar, J.

In this medical malpractice action, commenced on August 20, 2002, alleging a failure to timely diagnose breast cancer, which was ultimately diagnosed in the Spring of 2000, defendant East River Medical Imaging Associates, P.C. ("East River"), which performed mammograms and sonograms on plaintiff, moves for an order pursuant to CPLR §§ 3211 (a)(5) and 3212 dismissing the action as to it on the grounds that all acts of malpractice accruing before February 20, 2000 are time-barred, and there was no malpractice with respect to the mammogram and sonogram of March 29, 2000 which resulted in the recommendation for a biopsy which led to the diagnosis of breast cancer in plaintiff Tamara Shulman's right breast.

FACTS

Shulman apparently had her first mammogram at East River in 1990. See Goldman EBT pp 49, 52 Shulman then on the referral from her gynecologist, Dr. David James, went to East River on October 1993 for another mammogram. She was then about 40. The mammogram report of that date found no suspicious densities or calcification and no evidence of malignancy and indicated that compared with a prior exam of August 10, 1990 there had been no significant change. That report, as did all subsequent reports, except the 2000 report, recited "[a] repeat examination in 12 months for continued stability would be helpful", and that "[m]anagement of a palpable mass must be based on clinical grounds". According to Dr. Jeffrey Goldman, one of East River's radiologists, East River's routine was to do yearly routine mammogram screening for women over 40 and then if something worrisome was found to have the patient come back sooner or have have another procedure. EBT p 103 Shulman testified (EBT p 33) that she was told by East River in 1993 to come back annually and that she would be sent a reminder. According to Dr. Stephen Greenberg, another East River radiologist, he believed, but was not sure, that the American College of Radiology recommended for women 40-50 a mammogram every two years but annually if there was a family history of cancer.

Shulman had her next mammogram at East River in August 1995. The report sent to Dr. James was almost identical to the 1993 report. About a year later Shulman had her next mammogram. The report sent to Dr. James noted benign appearing calcifications in the right [*2]breast one of which was present in the 1995 mammogram and that there were no suspicious densities or calcifications, i.e. smaller, irregular microcalcifications (See Goldman EBT, p 76). The report's conclusion was that there was no mammographic evidence of malignancy and that except for the benign appearing calcifications on the right there had been no significant change since the 1990 and 1995 examinations. Shulman's next mammogram was in July 1997. The report to Dr. James found no change when compared to the 1993 films, no suspicious densities or calcifications and no secondary signs of malignancy. The report also contained the usual language about a repeat mammogram in 12 months and management of "a" palpable mass. Shulman could not recall anything with respect to the 1997 mammogram being different than the other mammograms. EBT p 38-39

In 1998 Shulman's 39 year old sister was diagnosed with breast cancer. Shulman returned to East River on May 13, 1998 for her annual mammogram. Before being seen by the radiologist after the mammogram was performed, she was given a "Patient History - Mammogram" questionnaire to fill out which was a routine procedure at East River. Shulman indicated on that form's family history section that her sister had had breast cancer. Shulman also indicated that she herself presently had a breast lump. The technologist with respect to the questionnaire would ask the patients follow up questions. Greenberg EBT, p 51

In 1998 patients coming in for a routine mammogram would have a total of four views taken, two of each breast, by the technologist. Greenberg EBT, pp 34-35 The technologist would then bring the questionnaire and the films to the radiologist to review along with available old films to compare and if additional views were needed the radiologist would so inform the technologist. The mammogram films in 1998 were placed in jackets that contained clinical information filled out by the technologist. See Greenberg EBT, p 30 Dr. Greenberg stated that in comparing films he would generally always use the most recent films for comparison and whether he went back further would depend on a "case-by-case basis". Id 48

With respect to Shulman's 1998 visit Dr. Greenberg stated that the indication on the questionnaire of a breast lump was an area of concern above and beyond normal routine, and the fact that Shulman's sister had breast cancer increased "a little stronger" Shulman's risk for cancer. Id 52 Dr. Greenberg hung up the four views taken by the technologist. A marker was placed by the technologist in the area where the patient had been complaining of a lump. According to Dr. Greenberg, that area looked normal on the film. Id 60-62, 73-74 In perusing the MLO view of Shulman's right breast Dr. Greenberg saw something which appeared to look like a small nodular density, a focal area of asymmetric parenchyma in an area which was "nowhere near where the marker was placed". Id 63-64, 71 So he worked up that apparent nodular density by having the technologist do a spot compression of that area to see if in fact it was a nodule. On the spot compression the area of questionable nodularity was no longer present, suggesting that it was pressed out and simply represented a superimposition of structures. Id 77 Dr. Greenberg concluded on that day, as a result of this workup, that there was nothing present other than normal parenchyma and characterized the mammogram as negative. Id 86 A sonogram was performed that day in the area of the marker which resulted in a normal finding ... "normal parenchyma, no abnormality". Id 82 The sonogram was apparently ordered by Dr. James in response to Shulman's complaint of a lumpy area or a thickening in her right breast and her sister's history of breast cancer. Shulman EBT, pp 39, 45, 49 Dr. Greenberg [*3]testified that since the studies were normal there was nothing to follow and he merely recommended that Shulman come back for her routine 12 month mammogram, which everyone her age should get. Greenberg EBT, pp 88-89, 105 Dr. Greenberg further testified that he did not do a spot compression of the area around the marker where Shulman had complained of a thickening because there was nothing abnormal there on the mammogram and nothing to press out. Id 99

Dr. Greenberg's report of the May 13, 1998 sonogram and mammogram concludes that there was no radiographic evidence of malignancy, no suspicious densities or calcifications, no secondary signs of malignancy [i.e. "areas of architectural distortion, puckering or tethering "(EBT pp 87-88)] and that the area of "questionable palpable abnormality" failed to reveal evidence of solid or cystic mass. The report further indicated that the mammogram was unchanged in comparison with the study of July 23, 1997. That report contained the usual language that "[a] repeat examination in 12 months for continued stability would be helpful" and that "[m]anagement of a palpable abnormality should be based on clinical grounds". According to Dr. Greenberg, that latter statement which may have been part of the "template report that went out in all cases" (Id 88) meant that he saw nothing on the mammogram or sonogram and that if the referring doctor was concerned about it such doctor could treat any palpable abnormality by biopsy if deemed necessary, but that there was "nothing on sonogram abnormal or to follow". Id 89

The envelope which contained the 1998 mammogram films which had preprinted materials circled or checked by the technologist reveals that the mammogram of that day was a "routine", that the preliminary findings were negative, that no mass was seen on the ultrasound and that the patient was to be seen in 12 months rather than being seen in 6 months, having a biopsy or other follow-up. The envelope also contained a note " 'Bump' felt by Dr", which according to Dr. Greenberg would not have meant the "radiologist" (EBT p 103). This is confirmed by Shulman who testified at her EBT (p 29) that no one at East River would examine her breasts (See also Goldman EBT, pp 33-34), and that she would see the radiologists to discuss the test results (Id 28). It appears that the note referring to a doctor feeling the bump referred to Dr. James. See Shulman, EBT p 39

Shulman returned a year later for a mammogram on April 23, 1999. The questionnaire of that date filled out by Shulman repeated that she had a breast lump and that her sister had had breast cancer. Written in hand with respect to the breast lump was "rt-nothing new". The report of Jeffrey Goldman, M.D., East River's radiologist found no suspicious densities or calcifications, no secondary signs of malignancy, no radiographic evidence of malignancy and no significant interval change compared to "previous exams dating back to 1995". The report to Dr. James recited, as did all prior reports, that "[a] repeat examination in 12 months for continued stability would be helpful" and that "[m]anagement of a palpable mass must be based on clinical grounds". According to Dr. Goldman's EBT (p 52) testimony the routine four films were taken that day. He was given those films in the mammogram jacket which also contained the questionnaire. Evidently all mammogram jackets after 1996 contained the printed form filled out by the technologist as referred to previously with respect to the 1998 mammograms as to whether for example the mammogram was routine, diagnostic or follow-up (See Goldman EBT, pp 52-54), but no copies of the jackets for 1999 or 2000 have been provided [*4]here. Dr. Goldman was also given the prior films found at that facility, and testified that his practice in comparing films was to go back a sufficient number of years, usually 3-4 years, which was a "judgment call", "something that was recent enough to be comparable but far enough away to look to see if there was a change". Id 49 In this case he would have looked back at least as far as the 1995 films and the ones in between. Ibid He stated that he would have looked at the 1998 films because in 1998 there had been a workup for a palpable mass and he wanted to understand what the final analysis was. Goldman EBT, pp 73-74 He noted that nothing was seen on the 1998 sonogram. Dr. Goldman reviewed the 1998 spot compression which looked like normal tissue and stated that he would have looked at that area on the 1999 films. Id 79-80 Dr. Goldman from the 1998 to 1999 films did not see anything worrisome (Id 81). Nor did he see any worrisome calcifications (Id 75). He ordered a spot compression of the left breast and found no worrisome masses. Id 85 He did find that Shulman's breast tissue was minimally denser than in 1998, but that density was symmetric between both breasts and was thus not worrisome because "[t]hat often happens due to different times of the month". Id 86-87, 101 Because the density was symmetric no sonogram was warranted in 1999. Id 101 In the area where the marker had been placed in 1998 Dr. Goldman saw no significant change between 1996 and 1999. Id 89, 100 Dr. Goldman's practice would be to discuss his findings orally with the patient and send a copy of the report to the referring physician and recommend that the patient come back for their yearly screening mammogram. Id 102-103 Each patient was always sent a reminder card about a follow-up mammogram. Id 104 If there were something worrisome they would be asked to come back earlier or they might be asked to have another procedure. Id 103 Dr. Goldman indicated that the portion of the report about "a" palpable mass being handled on clinical grounds was part of a routine report put into East River's template, and not part of the report he dictated. Id 105-106

In August 1999 Shulman thought that the lump in her right breast was "slightly" bigger, and she informed Dr. James. Shulman EBT, p 48 She returned to Dr. James in February 2000 and was then referred to Dr. Lauren Cassell, a breast specialist. Id 51 Dr. Cassell did a needle biopsy which was negative. Dr. Cassell asked Shulman when her next mammogram was, and Shulman told her that it was a few weeks off. Id 53 When asked if the mammogram was at Dr. Cassell's recommendation or was it a routine mammogram, Shulman answered that "[i]t was routine". Ibid Dr. Cassell told Shulman that before deciding how to proceed she wanted to see the next mammogram, which was performed at East River on March 29, 2000. That study was interpreted by Dr. Barbara Braffman of East River who found "an area of parenchymal distortion in the right upper outer quadrant in the region of palpable concern". The report indicated that this was "a new finding from the prior exam", and that comparison was made to films dating back to 1995. Dr. Braffman recommended a breast ultrasound for "further evaluation", which was performed that day at East River. The ultrasound showed an ill-defined 12.0 mm mass in the right 10 o'clock axis, 5.0 cm from the nipple corresponding to the area of architectural distortion on the mammogram. As a result of this suspicions sonographic finding, a biopsy was recommended. Shulman then had the mass biopsied and had a limited resection of her breast performed on April 3, 2000 [See Bill of Particulars 9 (a)]. At the time Shulman discovered she had cancer she still had in excess of 7 months in which to commence this action to ensure that the 1998 visit to East River fell within the 2 ½ year Statute of Limitations. [*5]

Shulman, who does not claim to have been given copies of the reports as they were issued by East River, testified at her deposition that before the 2000 mammogram she was always told after each sonogram that everything was fine or normal (See EBT p 29, 40), that it was pretty much the same routine every year, that the physician would come in, tell her the results and tell her to come back in a year (Id 36), and that she had no recollection of any East River's physician telling her there was an area of concern before 2000 (Id 38).

She further testified with respect to the 1998 visit that she could not recall the details of any discussion at East River in 1998, but that she was always told that she was fine and that as far as she could recall at that visit she was again told to follow-up in a year for her "regular" mammogram. Id 40 When asked if she had discussed the thickening at the 1998 visit with a physician at East River she testified at her EBT (p 46), "I don't _ _ , I don't think so. I don't know". She did not recall being told anything specifically in 1998 about the thickening, just that she was fine. Id p 40 Shulman further testified that before 2000 no one at East River had ever discussed calcifications with her. Id 41 With respect to her 1999 visit Shulman could not recall anything different about this visit and could not recall if the thickening had felt any different than it had the year before. Id 41, 48

East River now seeks an order dismissing all of Shulman's claims arising before February 20, 2000, i.e. all claims antedating the March 2000 visit to East River, on the ground that they are time-barred. East River further claims that all claims arising out of the March 2000 visit must be dismissed since there was no malpractice committed with respect to that visit.

As to that latter claim plaintiffs' counsel does not dispute East River's counsel's assertion that there was no malpractice, presumably because that assertion is valid. Plaintiffs are free to chart their own course. Accordingly all claims arising on or after March 29, 2000 are dismissed.

This leaves the issue of whether all of the claims prior to February 20, 2000 are time-barred. Plaintiffs claim that the continuous treatment doctrine applies and that therefore East River's application must be denied. As an exception to the usual accrual rule, the burden of establishing that the continuous doctrine applies and that any claim arising more than 2 ½ years before this action was commenced is timely is on the plaintiffs. Massie v. Crawford, 78 NY2d 516, 519 (1991), rearg denied 79 NY2d 978. After reviewing the papers submitted in connection with this motion and the applicable case law I find that plaintiffs have failed to raise an issue of fact as to the applicability of the doctrine.

All of the reports prior to 2000 were read as negative, and Shulman repeatedly testified that prior to that date she was always told that everything was normal and to come back in a year. See Davis v. City of New York, 38 NY2d 257, 260 (1975) Drs. Goldman and Greenberg testified that the mammograms and sonograms were negative and that Shulman's recall visits were routine, as buttressed by the 1998 mammogram jacket. Plaintiffs, who have the burden of proof, have not provided the 1997, 1999 or 2000 jackets, nor have they provided the affidavit of an expert indicating that any particular finding in any particular mammogram or sonogram was continuously being treated. No expert's affidavit has been provided regarding the benign appearing calcifications noted in the 1996 report or as to anything in any 1998 or 1999 report linking them to the cancer ultimately diagnosed in 2000. Indeed the 2000 report characterizes the findings as new. Thus no expert evidence has been provided even indicating [*6]that East River was monitoring a particular condition. Contrast, e.g. Prinz-Schwartz v. Levitan, ___ AD2d__( 1st Dept) 2005 WL 851081, at p 2 Moreover as Shulman stated at her January 2004 deposition, she had no recollection of any East River doctor telling her before 2000 that there was an area of concern. Shulman's nebulous assertions in her November 29, 2004 affidavit that she was always told to return "for monitoring or follow-up" so that there would be stability and continuity in her testing and so that they could evaluate her "condition" and compare the next year's films with her current ones and that she was "assured" (by whom or by what is not stated) that "East River was continuously following the lump", are unavailing, especially since the conclusory and vague allegations are undercut by her earlier deposition testimony (See e.g. EBT pp 29, 38-41, 46, 48), are unsupported by the record, and appear to have been tailored to avoid the consequences of Shulman's earlier deposition testimony [See Rodriguez v. NYCHA, 304 AD2d 468 (1st Dept, 2003); Gomez v. City of NY, 304 AD2d 374 (1st Dept, 2003); New Haven Properties, Ltd. v. Grinberg, 293 AD2d 386 (1st Dept, 202); Harty v. Lenci, 294 AD2d 296 (1st Dept, 2002); Novoni v. La Parma Corp., 278 AD2d 393 (2nd Dept, 2000); Barretta v. Trump Plaza Hotel and Casino, 278 AD2d 262 (2nd Dept, 2000)] The evidence establishes that the yearly diagnostic examinations were "discrete and complete, and did not constitute continuous treatment". Nykorchuck v. Henriques, 78 NY2d 255, 259 (1991), citing Davis 257; see also Shiffman v. Harris, 280 AD2d 752, 753 (3rd Dept, 2001).

It is well settled that the failure to diagnose a condition and thus to establish a course of treatment is not a course of treatment. Nykorchuck supra at 259 There is not even a specific claim by plaintiff that any particular doctor at East River told her that he would keep an eye on her bump, which in any event would not have availed her. See Nykorchuck, supra at 258 Nor is there any claim that East River put Shulman on an earlier recall schedule so as to demonstrate that its physicians were monitoring something of concern. See, e.g. Prinz-Schwartz, supra at p 1; Garcia-Alano v. Guttman Breast Diagnostic Institute, Inc., 188 AD2d 262 (1st Dept, 1992), lv. dsmd. 81 NY2d 1007 "A patient's continuing general relationship with [a medical provider] or routine, periodic health examinations will not satisfy the doctrine's requirement of continuos treatment". Young v. NYC Health & Hosp., 91 NY2d 291, 296 (1998); See also Shiffman, supra at p 753

East River's comparison of mammograms does not mandate a different conclusion. "A comparison of test results suggests adherence to appropriate diagnostic procedure, not a change in the level or nature of trust and confidence between patient and radiologist". Noack v. Symenow, 132 AD2d 965, 966 (4th Dept, 1987) Otherwise every patient who had more than one mammogram by one provider would be undergoing continuous treatment. Moreover, as noted previously, Drs. Goldman and Greenberg testified as to their practices in reading mammograms of comparing current mammograms with prior ones.

Plaintiff has not established or even raised an issue that East River diagnosed a particular disease or condition and was monitoring it. See e.g., Close v. Gorman, 284 AD2d 1013, 1014 (4th Dept, 2001); Pace v. Caron, 232 AD2d 617 (2nd Dept, 1996); (which seem to suggest that if fibrocystic breasts are diagnosed then the continuous treatment doctrine will apply) But see Nykorchuck, supra at 258 (which found that the continuous treatment doctrine did not apply where the doctor diagnosed fibrocystic disease, a noncancerous condition, and told the patient he would "keep an eye on it") In fact East River before 2000 found no radiographic [*7]abnormality with respect to the area where Shulman was complaining of a thickening, which finding is not disputed by expert testimony for plaintiffs. And, the area, remote from that complained of thickening, which was of concern in 1998 as a result of the 4 routine views, was after the spot compression, found to be, on that same day, nothing by Dr. Greenberg, as concurred to by Dr. Goldman and not refuted by plaintiffs via an expert. As Shulman testified, except for the results of the 2000 mammogram and sonogram, she was always told at each visit that everything was fine and that she should come back in a year. EBT pp 29, 36, 40 The 1998 mammogram jacket specifically indicated that Shulman was there for a routine mammogram. After the 1998 visit she was told to come back in a year for her "regular" mammogram (Id p 40), and she testified that the 2000 mammogram was scheduled by East River as a "routine" one (Id 53) The mammograms prior to 2000 and the 1998 sonogram "gave no indication of cause for concern. Absent any such indication, there is no link with the first indication of trouble in" 2000. Sinclair v. Cahan, 240 AD2d 152 (1st Dept, 1997)

Here where plaintiff was repeatedly told she was fine, and was recalled on a routine basis, the continuous treatment doctrine is inapplicable, since it "was created to enforce the view that a patient should not be required to interrupt corrective medical treatment by a physician and undermine the continuing trust in the patient - physician relationship in order to ensure the timeliness of a medical malpractice action". Young, supra at 296.

Accordingly the motion is granted and the action is dismissed.

Settle order.

Dated: May 10, 2005

60 Centre Street

New York, NY

J.S.C.