Keil v Lefkovits

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Keil v Lefkovits 2011 NY Slip Op 33464(U) December 15, 2011 Sup Ct, NY County Docket Number: 104668/10 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY L e e s PRESENT: PART k Juatlcr &&I., TEP&/F-n / / D 966 8 INDEX NO. E 7 4 M O i Q N DATE . 0 q/m/i1 -wMOTION J K74G Thm followfng papem, numbarad 1 to - Exhlbltr MOTION CAL. NO. !5 wora n a d on thlr m o t h to/for Notfoo of Motlonl Order to Show Cause Anrwrdng Affldavltr ma. NO; - Affldavltr - Exhlbb ... Replying Affidsvhr Cross-Motion: [3 Yes No. Upon the formgoing papem, It la ordmred that thlr motion NEW YORK COUNTY CLERK'S OFFICE Dated: IS, 241 Check one: 0 FINAL DISPOSITION Check If appropriate: 0 DO NOT POST SUBMIT ORDER/ JUDQ. NON-FINAL DISPOSITION 0 REFERENCE SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YOFW NEW YORK COUNTY: IAS PART 6 X ----lll-.Ulm---l----C-I-UL---------------.--------- JENNtFER KEIL, as Executrix of the Estate of H. BRADEN KEIL &la HERBERT BRADEN KEIL, Deceased, and JENNIFER KEIL, Individually, Plaintiffs, -against- ALBERT M. LEFKOVITS, M.D., THE PARK AVENUE CENTER for ADVANCED MEDICAL and COSMETIC DERMATOLOOY,MOUNT SMAI DERMATOLOOY ASSOCIATES, MICHAEL DIAZ, M.D., DANIEL F, ROSES, M.D., NYU HOSPITALS CENTER, NYU MEDICAL CENTER, NYU LANGONE MEDICAL CENTER, and STEWART c). GREISMAN, M.D., Index No. 1O4668/10 FILED NEW YORK COUNTY CLERK S OFFtCE Motion SequenceNumbers 002,003,and 004 arc hereby consolidatedfor disposition. In Motion Sequence Number 002, defendant Albert M. Lefkovits, M.D., moves, by order to show cause, for an order pursuant to C.P.L.R. Rule 32 12(a), granting summary judgment in his favor and dismissingthe action againsthim, with prejudice. In SequenccNumbers 003 and 004, Michael Diaz, M.D., Daniel F. Roses, M.D., NYU Hospitals Center s/h/a NYU Hospitals Center, NYU and Medical Center, and NYU Langone Medical Center ( NYV ), move for similar relief. Jennifer Keil, in her individual capacity and as executrix of the estate of her late husband, H. Bradcn Keil &/a H r e t Braden Keil, deceased,opposes the motions. ebr This action for medical malpractice and wrongful death arises out of defendants r respective treatment of M .KeIl between November 2006 and December 2008. On November 27, [* 3] 2006, Mr. Keil presented to D .Lefkovits, a dermatologist, with a complaint of a mole on his back r that had been changing and was sensitive. Dr. Letkovits excised tho mole and had it biopsied. The biopsy of the excised tissue revealed malignant melanoma Dr. Lefkovits referred Mr.Keil to Dr, Roses,an oncological surgeon. Mr. Keil presented to D .Roses on November 30,2006.Dr. Roses r recommended a wide deep excision of the tissue surrounding the area where the mole had been previously and removal of the sentinel lymph node. On Dccember 1,2006, Mr. Keil underwent a positron emission tomography ( PET ) scan, which depicted a 5 millimeter nodule in the left lower lobe of his lungs; the physician who read the PET scan recommended a follow-up chest computed tomography (I CT ) scan. On Decambur 6,2006, Dr. Roscs performed the wide and deep excision of the malignant melanoma and the sentinel lymphadenectomyat NYU Hospitals Center. His notes reflect that the sentinel nodas were negative for metastatic melanoma, and that no residual melanoma was noted in the wide excision specimen. Mr. Keil presented for two follow-up appointments with D .Roses on December 14, r 2006, and January 4,2006, during which thc s u t w were removed. On December 14, D .Roses r wrote a consultation report to D .Lefkovits about the results of the December 1,2006 PET scan, r indicating that the 5 m m nodule on the left lung was of no concern but for which a follow-up CT scan would be performed. D .Roses testified at his examination before trial ( EBT ) he also r that reviewed the results of the PET scan with Mr. Keil prior to the surgery and, at each follow-up visit, reminded him of the need to have a CT scan, to continue monitoring his condition, and to come in for follow-up examinations. Dr. Roses notes reflect that on January 4,2007, he instructed h4r. Keil to return in two to three weeks; however this was the last date that M .Keil received treatment from r D .Roses. r -2- [* 4] Mr. Keil prcscnted to D . Lefkovits twelve times between February 2007 and r November 2008. At thcsc visita, D .Lekovita would remove suspicious lesions and order biopsies. r The lesions removed during this period of time wcrc benign, although one mole was noted as changing f o benign to malignant. D .Lefkovits testified at his EBT that on multiple occasions, rm r he asked Mr. Keil to return to Dr. Roses for M a r evaluations, In August 2007, Mr. Kcil asked D . Lcfkovits to refer him to an internist for t complaints of a cough, and Dr. Lefkovits referred him to Dr. Dim. At the first appointment on r iz August 2,2007, Mr. Keil presented to D .D a with complaints of dizziness and dyspnea. Dr.Diaz r iz ordered blood work, which was normal except for elevated cholesterol. D .D a wanted to rule out vcstibulitis and mitral valve prolapse and referred Mr.Kcil to acardiologist. He instructed Mr. Keil to return on an "as needed" basis. Dr. D i u next saw Mr. Keil on April 8,2008, w t shingles and ih a recent outbreak of genital herpes. Dr. D a prescribed Lyrica for muscle pain associated with iz shingles and blood work performed nt this visit was normal. On September 5, 2008, Mr. Keil ih r presented wt complaints of chest and back pain. D . D i u diagnosed chest pain syndrome and r neuralgia consistent with the shhgles. Blood tests indicated elevated findings that D . Diaz associated with the singles and herpes outbreaks. Dr. Diaz again prescribed Lyrica, which reportedly provided Mr.Keil with relief of his symptoms. On November 21,2008, Mr. Keil presented to D .Diaz wt congestion, cough, thick r ih sputum, back pain with coughing, and a sore throat. He was running a mild temperature and repotzed chills, muscle spasms, and occasional crackles and wheezing. D . D a ordered an x-ray and r iz prescribed hvaquin for suspected bronchitis. A urine sample.providcd on November 24,2008, [* 5] showed trace protein. On November 26,2008, D .Diaz presented with fatigue and headaches that r had been persisting for one week, pain in his lower back and right lower rib cage, pain upon coughing, and occasional sore throat and nnusea. D .Dim's examination noted muscle pain and r clear lungs, and his notes reflect that Mr. Keil appeared well developed and well nourished, His continued working diagnosis w s postherpatic neuralgia and reactivation of Epstein-Barr virus, a which had been previously diagnosed. Blood work WBS evaluated as consistent with Epstein-Barr, with a normal blood count but an elevated sedimentation rate. Liver h c t i o n tests and tests for bone and kidney disease yielded normal results. On or about December 22,2008, after a phone call to D .Lcfkovits' office, Mr.Keil r was referred to Mitchell S. Raps, M.D,, at Mount Sinai Medical Center ("Mount Sinai"), for evaluation of severe pain in the right lower back and buttock radiating to his right leg. Radiological studies showed widespread metastatic disease. Physicians at Mount Sinai diagnosed Mr.Keil with Stage IV metastatic malignant melanoma that had manifested in his bone, brain, spine, liver. and lungs, although the lung nodule detected on the PET scan two years prior appeared to have only grown by 2 millimeters. Mr. Keil died on M r h 10,2009, within two and one-half months of tho ac diagnosis. Plaintiffs allegations against Drs. Lcfkovits, Roses, and Diaz art similar. The essential allegations arc that they were negligent in failing to perform follow-up CT scans, PET scans, complete blood work, and other tests; failing to advise Mr. Keil that he needed adjuvant cancer treatment, such as chemotherapy or radiation therapy; failing to seek a consultation with an oncologist, an oncological surgeon, or other specialist after D .Roses performed the surgery on r 4 [* 6] December 6,2006; and failing to diagnose the recurrence or spread of h4r. Kcil's cancer. Plaintiff alleges that the follow-up tests should have been performed three months after December 1,2006, and every six months thereher. The allegations against Dr. Roses also include a failure to inform M .Kail that he had a nodule in thu left lower lobe of his lungs and bilateral renal cysts; failure to r k a t same; and failure to follow M . r Keil as a patient and to emphasize disease prevuntion. Plaintiff contends that these fail- deprived Mr.Keil of the chance to fight or cure his cancer, to prolong his life, and/or to improve the quality of his life. The allegations against NYU sound in vicarious liability. The moving defendants seek aummaty judgment in their favor and dismissal of pldntiff s claims against them, On a motion for summary judgment, a defendant in a medical malpractice action bears the initial burden of demonstrating that there w s either no departure fiom a the standard of care, or that any such departure did not proximately cause plaintiffs alleged iJuy , 87 A,D.3d 238,245 (1st Dtp't or damage. 201 1). To satis& that burden, the defendant must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars. Y.N o w 73 A.D.3d 204,206 (1 st Dcp't 20 10). If the defendant meets this burden, to avert summary judgment, plaintiff m s demonstrate that the ut defendant did in fact commit malpractice and that the malpractice was the proximate cause of the plaintiffs injuries. In order to meet the rquired burden, the plaintiff m s submit an affidavit from a medical ut doctor attesting that the defendant departed f o accepted medical rm practiw and that the departure w s the proximate cause of the iqjurics a alleged. at 207 (Internal citations omitted). -5- [* 7] Dr. Lcfkovits contends that he is entitled to summary judgment primarily because, as B dermatohgis\, he owed no duty to Mr. Keil to order a CT scan, a PET scan,or other diagnostic studies, or to prescribe adjuvant therapy. H maintains that the duty to order specialized diagnostic e tests or therapies was the fhction of the oncologist or oncological surgeon, Dr. Roses. Having rcfcrrcd M . Kcil to Dr. Roses, D . Lefkovits avers that he was entitled to rely on D . Roses r r r expertise for any necessary follow-up treatment. D .Lefkovitsargues that the fact that he continued r to follow Mr. Keil as his dermatologist did not create a further duty to ensure that Mr. Kcil rcccived treatment of a specialized nature or require him to take steps outside the normal scope of a dermatologist. Additionally, D .Lefkovits maintains that his own treatment-removing r and having biopsies performed of external skin lesions and referring Mr. Keil to Dr. Roses-was within the standard of care. He m i t i s that none of thc alleged departures asserted against him substantially anan caused Mr. Keil s injuries or death. In Dr. Lefkovits own afidavit in support of his motion for summary judgment, he opines that the standard of carc f o 2006 through 2008 did not require a dermatologist, who made rm a timely diagnosis of melanoma and refcrrcd a patient to an oncological surgeon, to follow up with radiologic or diagnostic tests. It was his understanding that Dr. Roses would order a CT scan, since Dr. Roses consultation letter stated that a follow-up CT scan would be obtained and that Dr. Roses would continue to follow Mr. Keil in the hture. Further, Dr. Lefkovits opines that it is not the f i c t i o n of a dermatologist to determine whether adjuvant therapy is warranted nor to order adjuvant therapy, as that is the appropriate f i c t i o n of an oncologist or oncological surgeon. H states that e the standard of care for a dermatologist treating melanoma is excision and referral to an oncologist or oncological surgeon. H further opines that he did not depart f o accepted practice in failing e rm -6- [* 8] to diagnosethe spread of melanoma. D .Lefkovits states that the guidelines set forth by the National r Cancer Institute and the American Academy of Dermatology do not indicate that a dermatologist r should order testing to determine whether a melanoma has metastasized to internal organs. D . Lefkovits opines that he acted within in the standard of care by excising the original lesion and any other suspicions lesions; obtaining an immediate biopsy of the original lesion and the other suspicious lesions; referring Mr. Keil to Dr. Roses; and constantly reminding importance of following up. Mr.Keil of the D .Lefkovits opines that once he refemd Mr. Kcil to Dr. Roses, he r was not required to make other referrals. Moreover, he opines that Mr.Keil never presented wt ih any symptoms of metastatic disease during thc time he was under Dr. Lefkovits care. In further support of his motion for summary judgment, Dr. L.cfkovits submits an affidavit f o Mark A. Fialk, M.D., physician duly licensed to practice in the State of New York rm a and board certified in internal medicine, medical oncology, hematology, and hospice and palliative medicine. H sets forth that he has reviewed the pertinent records and litigation materials. Dr.Fialk e opines that fiuthcr studies-such as CT scans, PET scans, or blood s t u d i e c a r c not indicated for asymptomatic patients, such as M .Keil, who have a Stage I lesion and a negative sentinel lymph r node biopsy. H opines that not only arc these studies unreliable and of minimal value, but that e detection ofdistant metastasis is rare. Dr.Fialk fbrthcr opines that Mr. Keil was not acandidate for adjuvant therapy, since the sentinel lymph nodc biopsy was negative; the primary lesion axcised by Dr. Lefkovits was only .7 millimeters in depth; and thurc was no ulceration. He opines that the standard of care under the aforementioned circumstances is excision. -7- [* 9] In D .Flalk s opinion, r had metastatic disease been diagnosed at an earlier time than December 2008, adjuvant therapy would have madu no difference in the outcome because the patient would already have been Stage 4 and incurable at that point. No effective treatments currently exist for patients with widespread, late-stage melanoma. Once melanoma metastasizes and becomes Stage 4, the response rate and low survival rate arc not affected by the time of initiation of the therapy. Dr. Fialk opines that the 5 millimeter nodule seen on the December 1, 2006 PET scan was not metastatic disease but rather an incidental finding unrelated to the malignant melanoma,because the growth of that nodule by only 2 millimeters over two years rules out the possibility that it w s the a source of the ultimate metastasis. H believes that the melanoma had already c seeded hcmatogenowly (spread through the blood system) to several distant sites by the time D .Roses r performed the December 6,2006 surgery, since the sentinel node biopsy was negative. Dr. Fialk sets forth that a patient wt dormant metastasis can have a tumor excised, have no apparent symptoms ih of metastatic disease for months or years, and then develop widespread metastatic discasc. In Dr. Fialk s opinion, removal of the original 5 millimeter nodule would not have changed M .Keil s r ultimate outcome or prevented the spread of thc disease. Plaintiff maintains that issucs of fact exist that preclude granting Dr,Lefkovits summaryjudgment. She submits an affidavit f o a physician (name redacted) licensed to practice rm medicine in the State of New Jersey and board certified in dermatology. Plaintiffs dermatology expert opines, based on a review of the relevant materials, that since D .Lefkovits knew that Dr. r Roses recommended a follow-up CT scan and since he removed a lesion that was changing from benign to malignant, Dr. Lefkovitsdeparted fmm accepted dermatological practice by failingto write an order that Mr.Keil have a CT scan, The dermatology expert opines that D .Lefkovits should r -8- [* 10] h a l ordered ~ the C T scan when Mr. Keil iirst returned to him after the December 2006 surgery, and at every subscqueiit visit thcreafier. The expert opines ihnt when a physician is aware that follow-up tests are nceded, it is that physician s obligation to order the test or requcsl that another physician order tho tcst. Plnintiri s dermatology expcn notes thai a dermatologist has the authority to write prescriptions and orders for their patients that include diagnostic radiology. Undor thc circumstanccs. plaintiff s cxperi opines that Dr. Ixfknvits was the main physician in charge of the treatment of Mr. Kcil s nielanoina. and was responsible for ensuring that B follow-up C1 scan was ordercd. I 1iccxpert opines that a follow-up CT scan could h a w rcvenlcd the spread ormelanoma earlier, giving Mr. Keil n better chance to fight the cancer. Sufficient qucstions of fact esisl as to preclude granting sulnmary judgmcnt to Dr. Lefkovits. While the existencc: of a duty is a question of law, i t is undisputed that Dr. Lefkovits owed a duty lo Mr. Keil with rcspect to lhcir physician-paticnt rclationship. [A] doctor who actually treats a patient has Laduty of care toward that patient. W s - S t m h c n s on v. Waisman, 39 h.D.3d 303, 307 (1st Dep t 20071, citing McNultv v. City of NCW Ynrk , 122 N.Y.2d 227,232 (2005). Dr. Leikovits argumenl that he owed no duty to blr. Keil to order a follow-up CT scan addresscs the nature wid extent of Dr, Lcfkovits duty, not whether a duty existed in the first place, In contrnst to cases wlicre physicians refcr a patient to n spccialist and then stop trcating that patienl. here, D .Letkovits continued to treat Mr. Keil and testified a number oftirnes during his EBT that r hc was aware that, while Dr. Roses recommended follow-up appointments and a follow-up CT scan, his patient had not gone back to Dr. Roscs. The two experts prcscnt differing opinions as to thc nature and extent of Dr. Lefkovits duty towards Mr. Keil with respuct to follow-up ewe. Further, the experts offer opposing opinions as to whether Mr. Keil presented with symptoms of nietastatic -9- [* 11] cancer and whether the standard of care would have required D . Lefkovits to order Mr. Keil r radiological studies. Additionally, D .Fialk failed to explain, by referring to Mr. Keil s records or r medical literature, his conclusion that a diagnosis of metastatic cancer, prior to December 2008, would have been futflc because the patient would have already been at Stage IV, for which no treatment i available. B s d on the aforementioned unresolved issues of fact, summaryJudgment to D .Lefkovits is denied. r D .D i u argues that he is entitled to summaryjudgment, on the grounds that he did r not depart f o the standard of care in treating Mr.Keil; that he never undertook to treat Mr. Keil rm for melanoma or cancer; and that his care did not proximately cause Mr. Keil s alleged injuries. He submits his own affirmation in support of his summary judgment motion. D .Diaz opines that the r standard of care does not require a physician, who trentcd his patient in the manner that D .Diaz did, r to order follow-up CT scans, chest radiographs, PET scans, or the other therapies that plaintiff alleges Dr. Diaz failed to perform. He maintains that there is no merit to plaintiffs contention that he inappropriately failed to order certain tests; failed to diagnose Mr.Keil s spreading cancer; or failed to advise M .Keil that he needed agjuvant therapy. D .D a states that at no point during his r r iz r r care of Mr. Keil were any of these issues indicated. D .D i u states that he agrees with D .Fialk s opinion that had Mr.Keil s metastatic disease been diagnosed prior to December 2008, adjuvant therapy would have made no difference in Mr, Keil s outcome because he would have already becn H opines that the standard of care in 2007 and 2008 did not e Stage I and incurable at that point. V require an internist who sees a patient after a diagnosis of melanoma, with a history of negative lymph nodes, and under the care of a dermatologist and oncological surgeon, to determine whether -10- . . . .. . . 1 [* 12] diagnostic testing was warranted. Dr,Diaz opines that there was never an indication for him to undertake such during the course of his treatmant of Mr. Keil. In opposition to Dr. D a opinion that his treatment of Mr.Keil did not depart from izs the standard of care, plaintiff submits an affidavit f o a physician (name redacted) licensed to rm practice medicine in the State of New York and board certified in internal medicine and infectious disease. Plaintiffs internal medicine expert sets forth that heishe has reviewed the pertinent records and litigation materials. Having reviewed D . Diu s deposition transcript, plaintiffs internal r medicine expert opines that D .Diaz never had the reoccurrence of melanoma in his differential r r Keil s tests results were normal at his first visit wt Dr. ih diagnosis. The expert opines that when M . Dim, D .Diaz should have placed melanoma on the differential diagnosis, and his failure to do so r departed from good and accepted practice. Plaintiffs internal medicine expert sets forth that the izs standard of care during Dr. D a treatment of Mr. Keil was to request, obtain, and review medical records from a melanoma patient s other treating physicians, and opines that D .Diaz s failure to r do so departed from good and accepted practice. The expert opines that Dr. Dim was mating Mr. Keil without having all of the necessary data, and that this prevented an earlier diagnosis of tho reoccurrence of melanoma. The expert maintains that Dr. Dim should have ordered a scan of Mr. Keil at each visit. Further, the expert maintains that when Mr.Keil presented with shingles, both Dn.Dim and Lefkovits should have bean concerned, as shingles is a marker for a significantly weakened immune system, often heralding or signaling cancer, AIDS,or another immunodeficiency disorders. The expert opines that the physicians failure to order imaging studies in the face of Mr. Keil s presentation wt shingles constituted a daparture from good and accepted medical practice. ih Plaintiff s internal medicine expert opines that had imaging studies been ordered within six months -1 1- [* 13] to one year of the original surgical excision of the melanoma, there would have been evidence of the reoccurrence of the cancer, The expert opines that D .Din s departures caused or contributed to r Mr. Keil s death because he was deprived of the chance to have medications administered to fight the cancer. Again, there are sufiicicnt issues of fact that remain unresolved as to D .Dim that r will preclude granting him summary judgment. There is an issue as to whether Dr. D a should have iz regarded Mr.Keil s signs and symptoms to be indicative of a reoccurrence of melanoma. While D . r Diazopines that his treatment was proper, plaintiff 3 internal medicine expert opines that at all times, r given Mr. Keil s history, D .Diaz should have operated under a differential diaposis that the cancer could have reoccurred. The two physicians also differ as to whether d i c r detection and diagnosis ih would have changed Mr. Kcil s outcome. When the= are two expert opinions that conflict wt each other on the same issue, an issue of fact exists and summary judgment is not warranted. In D .Roses and NYU s motion for summary judgment, they maintain that the r statute of limitations for the claims for medical malpractice against these two defendants expired before plaintiff commenced this action, thereby rendering thcsc claims untimely. D .Roses last r trcatcd plaintiff on Janllary 4,2007, and as to NYU, treatment occurred only on December 6,2006. These defendants concede that at the time Mr.Keil died on March IO, 2009, a cause of action for medical malpractice w s still viable, Therefore, any action for medical malpractice had to have been a commenced by March 10,2010 (one year from the date of Mr.Kcil s death). C.P.L.R.5 210(a). The action was not commenced until April 9,2010, so D .Roses and NYU maintain that the cause r of action for medical malpractice is time barred. -12- [* 14] In opposition, plaintiff maintains that an issue of fact exists as to whether Dr. Roses continued to treat Mr. Keil as his patient after January 4,2007, by having independent conversations with Mr. Keil and D .Lcfkovits in 2007 and 2008. Plaintiff concedes that Dr. Rows had no r appointments with Mr.Keil after January 4,2007; that Dr. Roses chart reflects that Dr. Roses told Mr.Kcil to return to his office in two to thrce months; and that Mr. Keil never returned to Dr. Roses after January 4,2007. Plaintiff maintains that the fact that D .Ross and D .Ltfkovits spoke about r r Mr.Keil, and the fact that both knew that Mr. Keil needed a follow-up CT scan, is enough to raise issues of fact as to the continuous treatment doctrine. These discussions, as the two physicians described at their depositions, were brief and took place casually at a synagogue that both physicians periodically attended. Dr. Roses and NYU met their burden on summary judgment by showing that the time within which plaintiff could bring a medical malpractice claims against them expired before she commenced this action. Plaintiff has failed to rebut this showing. First, she has not argued that the continuous treatment doctrine would apply to NYU. Second, there is no basis to conclude that the relationship belwccn Dr. Rows and Mr. Keil continued past January 4, 2007. The statute of limitations is not tolled when a patient i s instructed to make a follow-up appointment but fails to do so. v. Reth 131 A.D.2d 796,797-98 (2d Dcp t 1987). Further, the conversations as described by Drs. Roses and Lcfkovita are insufficient to establish a triable issue of fact that Dr. Roses provided any treatment to Mr. Keil after January 4,2007. The causes of action sounding in medical malpractice against Dr. Roses and NYU shall be dismissed. -13- [* 15] As to the cause of action against him sounding in wrongfbl death, D .Roses opines, r in his own affidavit, that by informing M .Keil, Dr. Lefkovits, and D .Diaz of the results of the r r December 1,2006 PET scan and the need for a follow-up CT scan, and by instructing Mr. KeIl on January 4,2007, to return to him in two to three months, he did not depart from good and accepted practices of surgical oncology. He maintains that, to the extent that plaintiff is claiming that the mass seen on the December 1,2006 PET scan represented metastatic mtlanorna, this would mean that Mr.Keil hed Stage IV metastatic melanoma at the time. D .Roses maintains that no action or r inaction on his part could have predictably affected Mr, Keil s ultimate outcome, as treatment for Stage TV metastatic melanoma is c o n s i d e d palliative rather than curative, and has not becn shown to prolong life. He states that the five year survival rate for patients wt Stage l melanoma to ih V visceral sites, such as lung, liver, or brain, is between 610%. He further states that thc most V common treatment for Stage I melanoma is chcmothcrapy, but for the most part, chemotherapy results are disappointing. D .Roses opines that nothing he did or omitted to do in treating Mr.Keil r could have prolonged Mr.Keil s life or changed his ultimate outcome. Dr. Roses argument in favor of summary judgment on plaintiffs wrongful death cause ofaction against him,distilled, i that if the PET scan showing a mass was depicting metastatic s mclanoma BS far back 8s December 2006, then that mass was Stage IV cancer. Further, if the mass was Stage IV cancer, then Mr.Keil s death was an inevitability and any wrongful conduct by Dr. Roses could not have proximately caused Mr.Keil s death. This argument suffers from the same open issues of fact as described above regarding the other two physicians and the issue of proximate c w First, there is a contradiction in Dr. Roses saying that Mr. Kcil s death WBS inevitable, but a . also that a small percentage of patients with this type of cancer do survive. Second, in opposition, -14- [* 16] plnintifrpiils f'orth an affidavil from an expert (name redacted) who opines that even without the lung nndule on thc PET SCIIII, all threc moving defendruits should have ordercd Mr. Kcil a follow-up C'T scan, and that the fnilurc to do so deprivcd Mr. Keil of [lie chance to fight his cnnccr, for short and/or long tcnu survival, and for a hctter quality of life. There are sufficient conflicting opinions to find that issues of fact m i s t ns to whethcr defcndnnts' acts or omissions proximntely causcd some diminution in Mr, Kcil's chnncc for survival. Summary judgment us to Dr. Roses on the claim for wongl'ul death is dcnicd. Accordingly, it is hcrcby ORDERED that summaryjudgincnt is partially granted 011 Motion Sequence Number 004, to the exlent that Dr. Roscs and NYU RCC grantcd suminry judgment on the causc of action sounding in nlcdical malpractice, this cause ofaction is dismissed agaiiisl these two defendants, ouly, and thc clcrk is dircctcd to ciiter judgrncnt accordingly; nnd it is furthcr ORDERED that tlic remainder of Motion Sequence Number 004, and Morion Sequence Numbcrs 002 and 003 in their entirety, are denied; and il is further ORDERED thnt thc punies shall appear for u previously scheduled settlernenl FILED conkrencc 011 January 24,20 12, ai I0:OO a.m. DEC 20 2011 ENTER: -15-

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