Davidson v Egelman
2012 NY Slip Op 30853(U)
April 3, 2012
Sup Ct, NY County
Docket Number: 101948/10
Judge: Joan B. Lobis
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SUPREME COURT OF THE STATE OF NEW YORK
- NEW YORK COUNTY
The following papers, numbered 1 to
Notice of Motlonl
Upon the foregoing papsrr,
- Exhlbltm ...
were read on thi8 motbn to
rdsr to Show Caus
It Is ordered that thir motion
Check if appropriate:
DO NOT POST
7 SUBMIT ORDER/ JUDQ.
r: SETTLE ORDERI JUDG.
Index No. 101948/10
Decision and Order
ALAN EGELMAN, M.D., LHHN MEDICAL, P.C.,
LENOX HLLL COMMUNITY MEDICAL GROUP,
P.C., MANHATTAN'S PHYSICIAN GROUP,
P.C.and LENOX HLLL HOSPITAL,
APR 0 4 2012
COUNTY CLERKS OFFICE
Defendants' Alan Egelman, M.D., LHHN Medical, P.C., Lenox Hill Community
Medical Group, P.C., Manhattan's Physician Group move, by order to show cause, for an order
granting them summary judgment pursuant to C.P.L.R. Rule 3212 and dismissing the complaint.
Plaintiff Penny Davidson, individuallyand as the administratrixof the estate of her late husband, Leo
Hirsch &a Leopold Nathan Hirsch, opposes the motion.
This case pertains to treatment that Dr. Egelman provided to Mr. Hirsch between
2001 and 2007. Mr. Hirsch was born in 1931 and worked as an attorney. He began seeing Dr.
Egelman BS his primary care physician in 1998. He initially sought care from Dr. Egelman for his
high blood pressure and ongoing sarcoidosis.2 He also saw Dr. Egelman for annual physicals and
Plaintiff previously discontinued her action against Lenox Hill Hospital
According to deposition testimony from nonparty pulmonologist David Valentine, M.D.,
sarcoidosis is an autoimmune disease that can affect any organ in the body, but most commonly it
affects the lungs. It can cause inflammation, and inflammation can cause the destruction of
whichever organ that the inflammation affects.
discrete health concerns such as colds and tendonitis. Regarding the blood pressure, Dr. Egelman’s
advice was to try to reduce it with changes in diet, exercise, and moderate weight loss (Mr. Hirsch
originally weighed 168). The sarcoidosis was being treated with Flovent and Serevent as needed.
In April 200 1, Mr. Hirsch underwent a colonoscopy,during which a small polyp was
detected, removed, and biopsied. Though no adenocarcinoma was detected from the biopsy and Mr.
Hirsch’s carcinoembryonic antigen levels were normal, the gastroenterologist who performed the
colonoscopy recommended that a computed tomography (,‘CT”) of the abdomen and pelvis be
conducted in order to further examine the rectum and pelvic lymph nodes. So, on August 22,2001,
when Mr. Hirsch presented to Dr. Egelman for a check-up, Dr. Egelman referred him for a CT scan,
vhhich was performed on August 3 1 2001. The radiologist’s impression from the August 3 1,2001
CT scan was extensive adenopathy (swelling of the lymph nodes) in the abdomen and pelvis, “much
more extensive than typically seen in sarcoid. The possibility of lymphoma must be considered.”
A follow-up CT scan was performed on October22,2001, which again showed extensive abdominal
and pelvic adenopathy, and again the radiologist recommended that lymphoma be ruled out. Dr.
Egelman and Dr,Levitt, a pulmonologist who had been following Mr. Hirsch, believed that the
findings on the CT scans were consistent with sarcoidosis. The physicians also obtained CT scans
taken of Mr. Hirsch in 1998 and compared them to the 200 1 CT scans, and their impressionw s that
there were no significant changes between them. Dr. Egelman testified at his deposition that the
significance of “no changes” was that if there was lymphoma, it was clearly indolent, so nothing
needed to be done, and if there was no lymphoma, then the CT scans were entirely consistent with
sarcoidosis. Dr. Egelman testified at his deposition that always, in the back of his mind, was the
question of whether Mr. Hirsch had something other than sarcoidosis. Dr.Egelman further testified
that fever, malaise, weakness, weight loss, and loss of appetite are the clinical signs that he looks for
in a patient who might be developing lymphoma.
Between November 2001 and September2002, Dr. Egelman’s notes reflect that Mr,
Hirsch felt well and his appetite was good. In September 2002, Dr. Egelman recommended
restarting Flovent and seeing a pulmonologist for bilateral wheezing associated with sarcoidosis.
In July 2003, Mr. Hirsch presented for a ruptured abscess on his perineum and for sarcoidosis
monitoring. Mr. Hirsch reported that he had stopped taking Flovent six to nine months prior, with
no difference in his symptoms. He reported a good appetite, no cough, no fever, normal appetite,
no weight decrease, aerobic exercise three times a week, and that he felt well. Dr. Egelman heard
some wheezing in Mr. Hirsch’s left upper lung. Dr. Egelman questioned whether Mi. Hirsch should
restart the Flovent, and he instructed Mr. Hirsch to follow-up by phone, but if he was okay, to return
in six months for a further checkup.
In April 2004, Mr. Hirsch returned to Dr. Egelman regarding hip pain and also
reported that he felt early satiety during meals, although he was hungry at the onset of meals. Dr.
Egelman referred him to an orthopedist regarding the hip. Dr. Egelman testified that he was not
concerned about the satiety issue because Mr. Hirsch reported that he was hungry at the start of
meals. His weight was 158 pounds. Dr. Egelman’s impression was that the weight decrease could
be related to the sarcoidosis or lymph adenopathy, so he referred h4r. Hirsch to a pulmonologist and
the plan was to perform blood tests and possibly order a repeat CT scan. Two weeks later, Mi.
Hirsch saw Dr. Egelman for an asthma event. He had some wheezing in his lungs. Dr. Egelman put
him on antibiotics, Advair, albuterol, Biaxin, and Singulair, and instructed him to follow-up within
On October 14,2004, Mr. Hirsch was seen by Dr. Egelman for an upper respiratory
infection with wheezing. He reported that he had been off all medications for six months and that
he had increased shortnessofbreath associated with higher humidity. Dr. Egelman’s impression was
that the increased asthma was secondary to sarcoidosis, and that Mr. Hirsch would benefit from a
daily metered dose of inhaled steroids; the plan was to try Pulmicort. Mr. Hirsch also had some
weight loss and a decreased appetite. From examining Mi. Hirsch’s laboratory results, Dr. Egelman
saw no change and no drop in his blood count, which he testified would be expected if there were
malignancy. Therefore, he was not concerned of a possible malignancy at this time, but attributed
Mr. Hirsch’s symptoms to increased sarcoidosis and untreated pulmonary inflammation.
On February 10,2005, Mr. Hirsch was seen by Dr. Egelman for symptoms related to
wheezing, no significant cough, minimal clear rhinitis, and decreased appetite.
Mr. Hirsch had not been taking the Pulmicort. Dr. Egelman’s impression was asthmatic bronchitis
exacerbation,and prescribed Serevent,Azmacort, and Biaxin. Four days later, Mr. Hirsch was again
seen by Dr. Egclman, and he had less wheezing but a cough at night. Dr. Egelman’s impression was
reactive airway disease, improvement in asthma, and weight loss secondary to pulmonary disease
responding to treatment. At this point, Mr. Hirsch weighed 147 pounds.
Between March 2005 and February 2006, Dr. Egelman’s notes for Mr. Hirsch reflect
progression of the sarcoidosis, increased asthma, and decreasedweight. He had started experiencing
shortness of breath and trouble climbing stairs,but he was not using his inhalers regularly. He was
regularly exercising at the gym two to three times a week. I Egelman attributed Mr. Hirsch’s
increases in symptoms to his mostly untreated inflammation from progressing sarcoidosis. A
colonoscopy had also revealed the return of the polyp. In February 2006, Mi. Hirsch weighed 149
Mr. Hirsch next presented to Dr. Egelman for an office visit in October 2006. He
reported spontaneous improvement of his sarcoidosis symptom and no regular use of his steroid
inhalers. He was using Spiriva (an inhaled bronchodilator). Dr. Egelman’s notes reflect that Mr.
Hirsch’s last episode of severe symptoms was one and one half years ago, though he reported
weakness in his legs after twenty minutes on the treadmill and that he felt like he was slowing down.
His weight had also dropped to 146 pounds. Dr. Egelman’s impression was that there was no need
for chronic therapy for the sarcoidosis unless there was an exacerbation of symptoms; he believed
that the weakness and weight loss was related to decreased muscle due to the effects of sarcoidosis.
The next visit was May 2,2007; h4r. Hirsch sought treatment for persistent aching
and slow improvement fiom a fall at home. He was also having shortness of breath, though he
reported no significant sputum or a cough for two years. He had also stopped going regularly to the
gym due to work issues. He reported no fever, night sweats, or fatigue. His weight had decreased
to 143 pounds. Dr. Egelman testified that Mi. Hirsch looked sick at this visit, and he was suspicious
that something had significantly changed with Mi.Hirsch’s health, so he ordered blood work. Dr.
Egelman testified that in comparison to blood work taken seven months prior, there was a significant
change: his blood count had dropped significantly beyond the range of what it had been in the
previous years, and he had anemia and a higher sedimentationrate, which is a measure of proteins
in the body and is a sign of inflammation or malignancy. However, Dr. Egelman testified that the
sedimentationrate could have been affected by bruises secondary to the fall, so he wanted to recheck
the blood work in a month. Mr. Hirsch returned in the beginning of June 2007, and Dr. Egelman
again ordered blood work. The blood work showed a protein spike, elevated immunoglobulins, and
other results that were highly suggestive of multiple myeloma. Dr. Egelman then ordered a skeletal
survey, the results of which showed lytic lesions on his skull and his right forearm, consistent with
myeloma. Dr. Egelman also scheduled Mr. Hirsch to see Dr. Yudelman, an oncologist.
On July 9, 2007, Dr. Egelman updated Mr. Hirsch’s chart with a note after he
discussed the case with Dr. Yudelman. Mr. Hirsch underwent a bone marrow biopsy in the
beginning of July 2007, which showed B-cell lymphoma. Dr. Egelman testified that by July 16,
2007, at the time the bone marrow biopsy results were reported, the physicians who were involved
with Mr. Hirsch’s care knew that he had cancer. Dr. Egelman ordered a CT scan, which took place
on July 30,2007. The CT scan showed extensive lymphadenopathy and further indicated multiple
myeloma. Mr. Hirsch underwent a biopsy of his axillary lymph node on August 14,2007, the results
of which indicated B-cell chronic lymphocytic leukernidsmall lymphocytic lymphoma. D .
only saw Mr. Hirsch one more time after he was diagnosed with lymphoma, which was on October
9,2007; Mr. Hirsch had requested a letter attesting to his medical condition in order to excuse his
absence from court appearances. Mr. Hirsch was ultimately diagnosed with Stage IV lymphoma,
and he succumbed to the disease on February 28,2008, at the age of 76.
On February 16, 2010, plaintiff commenced this action by purchasing an index
number and filing a summons and verified complaint. The complaint raises four causes of action:
medicalmalpractice; lack of informed consent;negligent hiring and supervision;and wrongful death.
Plaintiff alleges that Dr. Egelman failed to diagnose Mr. Hirsch’s lymphoma from the August 3 1,
2001 CT scan through his last appointment with Dr. Egelman in October 2007.
Defendants now move for summaryjudgment as to all claims. At the outset, plaintiff
has neither rebutted nor addressed defendants’ showing in their motion papers that the claims for
lack of informed consent and negligent hiring must be dismissed. Accordingly, these claims shall
Defendants argue that the action is time barred by the statute of limitations. They
maintain that in this case, where plaintiff commenced her suit on February 16,2010, all claims that
pre-date August 16,2007 (or two and one-half years prior to the date the action was commenced)
are time barred and must be dismissed. As Mr. Hirsch was formally diagnosed with cancer on July
16, 2007, when the pathology report for the bone marrow biopsy revealed B-cell lymphoma,
defendants maintain that plaintiffs claims based on defendants’ alleged failure to diagnose cancer
are time barred. They further maintain that the continuous treatment doctrine does not serve to toll
the statute of limitations, because Dr. Egelman was neither treating nor monitoring Mr. Hirsch for
lymphoma between November 2001 and October 2007, except for a period from April 2004 through
In opposition, plaintiff argues that the continuous treatment doctrine does apply to
the treatment rendered by Dr. Egelman because between 2001 and 2007, he was treating h4r.Hirsch
for symptoms consistent with lymphoma, even though he wrongly assumed that the symptoms were
related to sarcoidosis. Plaintiff alleges that Dr. Egelman failed to undertake the necessary and
required diagnostic tests to determine the etiology of Mr. Hirsch’s worsening symptoms and to rule
out lymphoma. She argues that Mr. Hirsch’s regular, continuing visits to Dr. Egelman for
management and treatment of sarcoidosis-together with his complaints of loss of appetite, weight
loss, wheezing, and shortness of breath-serve
as a basis for reliance on the continuous treatment
doctrine for claims of malpractice dating back to 2001.
Generally,a medical malpracticeaction must be commencedwithin two and one-half
years of the date of the alleged “act, omission, or failure complained of.” C.P.L.R. 214-a.
However, the time in which to bring a medical malpractice action is stayed if there is a continuous
course of treatment that “includes the wrongful acts or omissions . . . and is related to the same
original condition or complaint.’’ McDermott v. Torre, 56 N.Y.2d 399, 405 (1982) (citation
omitted); see also C.P.L.R. 214-a. This exception, known as the continuous treatment doctrine,
“rests upon the belief that the best interests of a patient warrant continued treatment with an existing
provider, rather than stopping treatment, as ‘the [existing provider] not only is in a position to
identify and correct his or her malpractice, but is best placed to do so.”’ Rudolph v. Jerry Lynn,
D.D.S.. P.C., 16 A.D.3d 261,262 (1st Dep’t 2005) (brackets in original), quoting McDermott, 56
N.Y.2d at 408.
On a motion to dismiss a cause of action as time barred, the defendant bears the initial
burden of showing that the alleged malpractice took place more than two and one-half years prior
to the commencement of the action. Texeria v. BAI3 Nuclear Radiolow. P.C., A.D.3d 403,405
(2d Dep’t 2007). Once that burden is met, the plaintiff must establish the applicability of the
continuous treatment doctrine or other exceptions to the statute of limitations. Massie v. Crawford,
78 N.Y.2d 516,519 (1991); Texeria, 43 A.D.3d at 405. “In order to establish that the [continuous
treatment] doctrine applies, the plaintiff is required to demonstrate that there was a course of
treatment, that it was continuous, and that it was in respect to the same condition or complaint
underlying the claim of malpractice.” Stewart v. Cohen, 82 A.D.3d 874, 876 (2d Dep’t 2011)
Plaintiff has raised an issue of fact as to whether the continuous treatment doctrine
applies to the treatment rendered by Dr. Egelman fiom August 2001 through the date that the
diagnosis of lymphoma was made. Dr. Egelman was treating Mr. Hirsch for sarcoidosis by
prescribing medicines and monitoring the progress of the disease. It is undisputed that Dr.Egelman
was monitoring Mr. Hirsch’s sarcoidosis and, on at least three occasions, he was concerned that Mr.
Hirsch had lymphoma and ordered further testing and evaluation. He also testified that at all times,
in the back of his mind, was the question of whether Mr. Hirsch’s symptoms were related to the
sarcoidosis or something else. Defendants did not conclusively establish that Mr. Hirsch had no
awareness that his symptomswere being monitored for the purpose of detecting lymphoma. As there
are issues of fact pertaining to the continuous treatment doctrine and whether Mr. Hirsch had a valid
cause of action to recover damages for medical malpractice at the time he died, and since the
wrongful death cause of action was commenced within two years of Mr. Hirsch’s death, the wrongful
death claim survives that branch of the motion seeking to dismiss it for untimeliness. Norum v.
Landau, 22 A.D.3d 650,65 1 (2d Dep’t 2005).
However, even viewing plaintiff’s case in the best possible light, plaintiffs claim for
pain and suffering due to medical malpractice is time barred. Mr. Hirsch was diagnosed with
lymphoma by July 16,2007, at the time the bone marrow biopsy results were reported. The action
was not commenced until February 16,2010. The statute of limitations for pain and suffering due
to medical malpractice is two and one-half years (C.P.L.R. 8 214-a), though if a person dies before
the statute of limitations expires, the action may be commenced by his representativewithin one year
of the death. C.P.L.R.
In order for the claim for pain and suffering due to medical
malpractice to be timely, it would have had to have been brought on or before January 16,2010.
Plaintiff does not allege a departure from the standard of care based on any act or omission by Dr.
Edelman that occurred within two and one half years of the commencement of the action.
Accordingly, the claim for medical malpractice for pain and suffering is time barred and shall be
To the extent that the wrongful death claim is not dismissed on statute of limitations
grounds, defendants argue that they are entitled to summaryjudgment. As established by the Court
of Appeals in Alvarez v. Prospect Hosp., 68 N.Y.2d 320,324 (1986) and Winegrad v. New York
Univ. Med. C r ,64 N.Y.2d 851, 853 (1985), and as has recently been reiterated by the First
Department, it is “a cornerstone of New York jurisprudence that the proponent of a motion for
summaryjudgment must demonstrate that there are no material issues of fact in dispute, and that [he
or she] is entitled to judgment as a matter of law.” Ostrov v. Rozbruch, 91 A.D.3d 147, 152 (1st
Dep’t 2012), citing
64 N.Y.2d at 853. In order to establish entitlement to summary
judgment in a medical malpractice case, a physician must demonstrate that s h e did not depart from
accepted standards of practice or that if there was a departure, it did not proximately cause the
patient’s injury. Roques v. Noble, 73 A.D.3d 204, 206 (1st Dep’t 2010). “When medical
malpractice forms the basis of a wrongful death action, in establishing that he/she did not
proximately cause the injuries alleged to have caused plaintiffs death, B defendant establishesprima
facie entitlement to summaryjudgment as to the wrongful death action as well.”
@ Once a
movant meets this burden, it is incumbent upon the opposing party to proffer evidence sufficient to
establish the existence of a material issue of fact requiring a trial, Ostrov, 91 A.D.3d at 152,
citinq Alvarez, 68 N.Y .2d at 324. In medical malpractice actions, expert medical testimony is the
-qua non for demonstrating either the absence or presence of material issues of fact pertaining
to departure from accepted medical practice or proximate cause.
In support of theirmotion, defendants submit an affirmation from Michael Grossbard,
M.D., who sets forth that he is a physician duly licensed to practice medicine in New York and board
certified in internal medicine and medical oncology. Dr. Grossbard states that he has reviewed
plaintiffs bill of particulars, the pertinent medical records, and the deposition testimony pertaining
to this matter. Based on this review, Dr. Grossbard opines, within a reasonable degree of medical
certainty, that defendants treated Mr. Hirsch in accordance with the acceptable standard of care and
that none of defendants’ treatment proximately caused Mr. Hirsch’s injuries. Dr. Grossbard states
that Mr. Hirsch had a well-documented history of sarcoidosis,in which abnormal inflammatory cells
accumulate in the organs, including the lymphatic system and the lungs. Dr. Grossbard states that
there is a great deal of overlap in the symptoms of sarcoidosis and lymphoma, including cough,
shortness of breath, weight loss, fevers, and lymphadenopathy, and that Mr. Hirsch exhibited all of
those symptoms with the exception of fever. Dr. Grossbard opines that it was reasonable and
appropriate for defendants to attribute those symptoms to sarcoidosis. He further opines that
sarcoidosis and lymphoma are entirely pathologically unrelated, and neither condition causes or
exacerbates the other.
Dr. Grossbard sets forth that low grade lymphoma, like Mr. Hirsch’s, is a malignant
disease that presents at Stage 111or IV in more than 70% of patients. He states that once the disease
is at such an advanced stage, it is incurable with any conventional therapy program. He further
opines that at the time that Mr. Hirsch had the CT scans of his abdomen and pelvis in August 2001
and October 2001, Mr. Hirsch was already afflicted with Stage ILI lymphoma. He sets forth that
through 2007, there was no data to suggest to the medical community that earlier treatment of low
grade lymphoma could improve a patient’s prognosis, longevity, or overall survival; rather, treatment
was reserved to palliative care and reduction of tumor bulk. Dr. Grossbard maintains that between
2001 and 2007, the standard of care for treating low grade lymphoma was to treat only when the
disease caused the patient to experience symptoms, and that the goal was not to cure the disease or
prolong the patient’s life. Dr. Grossbard opines that even if Mr. Hirsch had been diagnosed with
Stage IIIlymphoma in late 200 1, he would have been referred to an oncologist who would not have
provided Mr. Hirsch with any treatment but would have simply monitored him until he became
symptomatic. Then, ifhe became symptomatic, the treatment would have been geared towards relief
of the symptoms, but the lymphoma would have remained and ultimately progressed exactly as it
did in this case.
Further, Dr. Grossbard opines that Mr. Hirsch did not manifest symptoms of
lymphoma until May 2007, when he presented looking ill. He opines that there was no reason for
defendants to suspect that Mr. Hirsch had lymphoma based on his episodic and intermittent
complaints of cough and shortness of breath, nor was his weight loss over the six years a clinically
In opposition, plaintiff submits an affirmation from a physician (name redacted) who
sets forth that he/she is a physician licensed to practice medicine in New York and board certified
in internal medicine and medical oncology. Plaintiffs expert states that he/she reviewed the
pertinent medical records. The expert opines, to a reasonable degree of medical certainty, that
defendants departed from good and accepted standards of medical care by failing to definitively
diagnose h r Hirsch’s lymphoma from 2001 through 2007. The expert states that biopsy is the only
definitive way to diagnose lymphoma and sarcoidosis,and opines that defendants’ failure to perform
a biopsy at any time between 2001 and 2007 was a deviation from good and accepted standards of
Plaintiff‘s expert states that Mr. Hirsch’s symptoms from 2001 through 2007 were
more consistent with lymphoma than sarcoidosis. The expert, in looking at the sedimentationrates
for blood tests performed on Mr. Hirsch between 2001 and 2007, opines that the sedimentation rates
were consistently and abnormally elevated. The expert states that normal sedimentationrate ranges
are between 10 and 20, but that Mr. Hirsch had results of 25 on September 4, 2001; 139 on
September 19,2002; 142 on October 14,2004; 142 on October 13,2006, and 144 on May 8,2007.
Also, plaintiffs expert notes that Mr. Hirsch’s blood test results showed that he was anemic. The
expert faults defendants for failing to adequatelyinvestigate these issues. The expert points out that
Mr. Hirsch’s weight decreased from 168 pounds in 2001 to 135 pounds in 2007, and he was
complaining of cougtung with sputum, wheezing, shortness of breath, decreased appetite, and loss
of stamina. Plaintiffs expert states that rather than investigating these symptoms, defendants
continued to presume that the symptoms were related to sarcoidosis and merely replenished
medications to help Mr. Hirsch breathe.
Plaintiffs expert also points out that the radiologists’reports in 2001 noted extensive
adenopathy and stated that lymphoma must be considered or ruled out. Plaintiffs expert states that
the only way to determine whether adenopathy is a malignant condition is to perform a biopsy, and
that failure to perform a biopsy in light of the 200 1 radiological studies was a departure from good
and accepted standards of medical care. The expert believes that a biopsy would have conclusively
diagnosed the presence of lymphoma and ruled out sarcoidosis. The expert also opines that
defendants should have referred Mr. Hirsch to an oncologist, and that their failure to do so was a
departure from good and accepted standards of medical care.
Plaintiffs expert believes that, based on the overall picture of Mr. Hirsch’s health
between 2001 and 2007-including
his progressing symptoms, the results of his blood work, and
his failure to respond to therapy for sarcoidosis-defendants failed to diagnose Mr. Hirsch’s
underlying disease, thereby causing a delay in the proper diagnosis of lymphoma. Plaintiffs expert
opines that defendants’ failure to diagnose and treat Mr. Hirsch’s lymphoma over six years
ultimately resulted in Mr. Hirsch’s premature death. If he had been diagnosed earlier, plaintiffs
expert opines, Mr. Hirsch could have received treatment, would have experienced fewer symptoms,
and would have lived longer. Plaintiffs expert sets forth that 75% of patients with low grade
lymphoma can be expected to survive for 10 years, but that Mr. Hirsch was not given that
Defendants have made out a prima facie case for their entitlement to summary
judgment by proffering expert opinion evidence that nothing they did or did not do proximately
caused Mr. Hirsch’s death fiom lymphoma. In opposition, while plaintiff’s expert is thorough on
the issue of departure, hisher opinion that defendants’ failure to diagnose Mr. Hirsch’s lymphoma
from 200 1 through 2007 proximately caused Mr. Hirsch’s premature death is conclusory. The expert
does not rebut defendants’ showing that any treatment for lymphoma available during the time
period in question would have been palliative only and could have neither prolonged Mr. Hirsch’s
life nor prevented his death. Plaintiffs expert never explains what treatment or disease management
would have been available to Mi. Hirsch, or how earlier treatment would have prolonged Mr.
Hirsch’s life, had Dr. Egelman diagnosed the lymphoma prior to July 2007. The expert fails to point
out which symptoms would have been alleviated or treated differently had defendants made an
earlier diagnosis. Plaintiffs expert also failed to address or rebut Dr. (3rossbard’scontention that
treatment for lymphoma is ody commenced once the patient shows symptom of lymphoma, a Mr.
Hirsch did in May 2007.
The court notes that plaintiffs claims against LHHN Medical, P.C.,
Community Medical Oroup, P.C., M n a t n sPhysician Group arc premised on vicarious
and a h t a ’
liability for D .Egelman. She has not asserted claims that any of these three entities are directly
liable for injury to Mr. Hirsch. Accordingly, it is hereby
ORDEREDthat defendants’motionfor summaryjudgment is granted, i its entirety,
i conformity with the above decision; and it is further
ORDERED that the complaint is dismissed against defendants Alan Egtlman, M.D.,
LHHN Medical, P.C.,
Lenox Hill Community Medical Group, P.C.,and M n a t n sPhysician
Group, and the clerk is directed to enterjudgment accordingly.
APR 0 4 2012
COUNTY CLERK‘S OFFICE