Ashton v D.O.C.S. Continuum Med. Group
Annotate this CaseDecided on April 28, 2009
Supreme Court, New York County
Randall Ashton, Plaintiff,
against
D.O.C.S. Continuum Medical Group, Robert L. Warner, M.D. and Jeffrey S. Roth, M.D., Defendants.
102486/07
Attorney for Plaintiff
Sharon Elmaleh-Schoenman, Esq.
Rosenberg, Minc, Falkoff & Wolff, LLP
122 East 42nd Street, Ste. 3800
New York, NY 10168
212-697-9280
Attorney for Defendants
Linda S. Elman, Esq.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP
150 East 42nd Street
New York, NY 10017-5639
212-490-3000
Alice Schlesinger, J.
In this medical malpractice action, after the completion of discovery and the discontinuance of the action against defendants Dr. Laurie Rice and Dr. Kass Sadri, the remaining above-captioned defendants have moved for summary judgment. The basic claim that plaintiff Randall Ashton is making is that there was a delay in diagnosing his Hodgkin's Lymphoma. Further, that such delay, from 2004 until 2006, necessitated more aggressive treatment; i.e., chemotherapy plus radiation as opposed to only chemotherapy.[FN1]
The plaintiff received a conclusive diagnosis of stage IIXB Hodgkin's Lymphoma in July of 2006 by Dr. Carol Portlock at Memorial Sloan Kettering. Neither Dr. Portlock nor the hospital are defendants here. However, Dr. Jeffrey S. Roth, Dr. Robert L. Warner, and D.O.C.S. Continuum Medical Group are defendants in this matter. Mr. Ashton presented to both of these physicians in January of 2005. He continued under their care for a year, to January 2006. It is his claim that despite his exhibiting signs and symptoms of Hodgkin's Lymphoma, these doctors failed to diagnose the condition and failed to provide him with proper treatment for it.
The defendants' papers consist of an affidavit from Dr. Miguel Conde, a board certified oncologist, as well as argument from counsel. Dr. Conde discusses the mechanism of staging and states that at the time the diagnosis was made here, by a CT Scan and a PET Scan, the diseased nodes were found to be bulky and confined to the area above the diaphragm. He goes on to say that it was standard for Stage I or Stage II patients of Hodgkin's (Mr. Ashton was Stage II) to receive a combination of chemotherapy and radiation treatment. [*2]
In Dr. Conde's opinion, the plaintiff had symptoms of itching as far back as November of 2004, and this symptom is a sign of advanced disease which would have prompted a full treatment regiment for advanced or bulky lymphoma. Therefore, this expert concludes that even if a diagnosis had been made earlier, the treatment would have been exactly the same. Dr. Conde finally opines, as stated earlier, that Mr. Ashton's prognosis is excellent and is the same even if the diagnosis had been made earlier.
The plaintiff opposes. However, the opposition solely relates to the mechanism of treatment. In an affirmation submitted by a board certified medical oncologist, an opinion is given that a diagnosis should have been made earlier by the defendant doctors based on the presence of itching and that the delay did allow the disease to progress from a nodal disease to a bulky presentation. Further, and significant, is that expert's opinion that a non-bulky presentation in 2004 and 2005 would have required only chemotherapy as a treatment. In other words, radiation would not have been necessary.
This of course is in sharp contrast to the opinion expressed by Dr. Conde. The plaintiff's expert cites to a position paper of December 2005 delivered by a Dr. Joseph Connors at a meeting of the American Society of Hematology that supports his opinion that chemotherapy alone can be the appropriate treatment for non-bulky presentation. He also disagrees with Dr. Conde as to the significance of Mr. Ashton's itching symptom. This doctor opines in his affirmation (at ¶ 23) that "this simply is not so". He further states that itching or "pruritus' is not a prognostic indicator, particularly when it is the sole symptom. Therefore, this expert physician believes that Dr. Conde was wrong when he characterized the stage of Mr. Ashton's disease as "bulky" in early 2005 because of the itching.
His belief, on the other hand, was that in early 2005, the bulky stage had not yet been reached. He therefore opined that, consistent with certain recent articles by doctors in this field, particularly one by Dr. Joseph Connors, that only chemotherapy would be needed in an earlier stage. Finally, this doctor states that radiation is generally not a good thing and can cause health problems.
In reply, Dr. Conde takes issue with virtually all of the opposition opinions and even with the interpretation of Dr. Connors' position paper. In fact, he cites to other writings. His position is that Dr. Connors' opinion at best remains an hypothesis, as opposed to the standard of care. He repeats that chemotherapy together with radiation, even for non-bulky Hodgkin's disease, is the proper therapy.
Moving counsel then argues that first, their papers make out a prima facie case for summary judgment which is not successfully rebutted. Second, that all claims regarding any lesser chance of survival should be dismissed as all experts agree on the success of the treatment And third, that a Frye hearing should be held on the issue of how to treat non-bulky Hodgkin's Lymphoma.
At oral argument, which was stimulating and informative, I agreed with some points argued by the defense. The absence of a dispute regarding prognosis is one. Second, that the opposition physician's affirmation, as to why he believed that Mr. Ashton was not in the bulky stage in 2004-2005 while under defendants' care, was too conclusory.
However, since this was a dispositive motion, one that could lead to a dismissal of the action with prejudice and deprive the plaintiff of his day in court, in my discretion I directed plaintiff to serve a supplemental affirmation elaborating on this sole issue. Moving counsel would then be given the last word in written papers. [*3]
That has now been done. In the supplemental affirmation, plaintiff's physician does provide the basis of his opinion that the delay in diagnosis allowed the disease to progress to a bulky stage. He bases his opinion, that the early stage was nodal, as opposed to bulky, on the absence in Mr. Ashton's records from 2005 of any reference to a cough or a bulge in his chest. The chronic cough, according to the plaintiff's deposition, occurred at the earliest a few months before an April 27, 2006 visit to Dr. Fratellone. This fact was significant to this doctor because it is the onset of coughing and the chest bulge which indicate progression of the disease to the bulky stage.
I find that the opposition papers in their entirety, including the supplemental affirmation provided at my request, do succeed in creating issues of fact as to the medical implications of an alleged failure to diagnose the disease in 2005. The staging of the Hodgkin's Lymphoma in 2005, whether or not it was bulky, and if it was not, whether chemotherapy was the proper treatment, are all factual issues that must be decided at a trial.
A brief final word on two subjects. First, I do not believe a Frye hearing is called for here. I have read Dr. Connors' paper and believe the interpretation of it by the plaintiff's physician is not a distortion. Also, I do not believe Frye hearings (at least I have found no cases on this at all) include the standard of care for treatment. They deal rather with methods of evaluation and causation theories.
Second, I do not believe that obtaining supplemental information is unprecedented or inappropriate, as argued by the defense. Nor is it in the nature of a motion to renew. While certain aspects of litigation involve strategy, we are all doing serious business here and in so doing, hoping to ascertain the true facts. My decision to obtain a further elaboration was such an attempt.
The motion for summary judgment must therefore be denied, except that there will be a dismissal of the claim which speaks to a lesser chance of survival for Mr. Ashton. All agree his prognosis vis-a-vis the Hodgkin's disease is excellent. Accordingly, it is hereby
ORDERED that defendants' motion for summary judgment is granted to the extent of severing and dismissing the claim relating to a lesser chance of survival and is otherwise denied. Counsel are directed to appear in Room 222 on May 14, 2009 at 10:00 a.m. for a pre-trial conference, prepared to select a firm trial date.
This decision supercedes the April 21, 2009 decision.
Dated: April 28, 2009
________________________
J.S.C.
Attorney for Plaintiff
Sharon Elmaleh-Schoenman, Esq.
Rosenberg, Minc, Falkoff & Wolff, LLP
122 East 42nd Street, Ste. 3800
New York, NY 10168
212-697-9280
Attorney for Defendants
[*4]
Linda S. Elman, Esq.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP
150 East 42nd Street
New York, NY 10017-5639
212-490-3000
Footnotes
Footnote 1:Originally there was a
contention that the alleged delay also had an adverse effect on Mr. Ashton's prognosis. However,
happily for Mr. Ashton, there now seems to be agreement between the experts opining on this
subject in the papers that his prognosis vis-a-vis the underlying disease is now excellent based on
two PET Scans taken during and after treatment indicating a complete absence of the disease.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
