Kljyan v Kaminetsky

[*1] Kljyan v Kaminetsky 2017 NY Slip Op 51633(U) Decided on November 14, 2017 Supreme Court, New York County Madden, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2017
Supreme Court, New York County

Jakop Kljyan and SOFIYA KLJYAN, Plaintiffs

against

Jed C. Kaminetsky, M.D., JED C. KANINETSKY, M.D., P.C., UNIVERSITY UROLOGY ASSOCIATES, LLP, DAVID T. LIU, M.D., UNIVERSITY NEPHROLOGY ASSOCIATES, LLP, AMR A. NAYEL, M.D. AMR A. NAYEL, M.D., P.C., ASTORIA HEALTHCARE ASSOCIATES LLP, NYU HOSPITALS CENTER, NYU LANGONE MEDICAl CENTER, AND NYU LANGONE HEALTH SYSTEM, Defendants.



805190/16



Counsel for Plaintiff: David B. Golomb, Esq., Law Offices of David Golomb

Counsel for defendants NYU Langone Medical Center and Dr. David T. Liu, M.D.: Charles L. Bach, Jr, Esq., Heidell, Pittoni, Murphy & Bach, LLP

Counsel for defendants Amr A. Nayel, M.D. and Amr A. Nayal, M.D., P.C. d/b/a Astoria Healthcare Associates: Bruce M. Brady, Esq., Koster, Brady & Nagler, LLP

Counsel for defendants Jed C. Kaminetsky, M.D. and Jed C. Kaminetsky, P.C., and University Urology Associates, LLP: Aaronson, Rappaport, Feinstein & Deutsch, LLP
Joan A. Madden, J.

In motion sequence no. 004, defendants David T. Liu, M.D., University Nephrology Associates, LLP, University Urology Associations, LLP, NYU Hospitals Center s/h/a "NYU Langone Medical Center," ("NYU") and NYU Health System (collectively referred to as "the NYU defendants"), and in motion sequence no. 005, defendant Amr A. Nayel, M.D. (Dr. Nayel) and Amr R. Nayel, M.D., P.C., d/b/a Astoria Health Care Associates, LLP (collectively referred to as "the Nayel defendants") move for summary judgment dismissing the complaint as to the respective defendants.[FN1] Plaintiffs oppose both motions, except for that part of the NYU [*2]defendants' motion seeking to dismiss the claims against defendants David T. Liu, M.D.,University Nephrology Associates, LLP, and University Urology Associations, LLP, and for lack of informed consent, and these aspects of the NYU defendants' motion for summary judgment are granted without opposition.

Background

In this medical malpractice action, plaintiffs allege that the NYU and the Nayel defendants departed from accepted medical practice in connection with their diagnosis, care and treatment of plaintiff Jakop Kljyan's colon cancer. As to the NYU defendants, plaintiffs' claims involve an abnormal pelvic CT scan ordered by defendant Jed C. Kaminetsky, M.D. (Dr. Kaminetsky) in connection with a pre-procedure work up for kidney stones. The CT scan was performed on November 15, 2013, by a board certified radiologist, non-party Dr. Hersh Chandarana, the assigned physician in NYU's Radiological Department. Impressions in Dr. Chandarana's two-page report are radiological findings of kidney stones and of "a soft tissue mass suspicious for a colonic neoplasm.[FN2] " The report recommended further evaluation with a colonoscopy. Of significance to the issues herein, the finding of the soft tissue mass and the recommendation of a colonoscopy were stated on the second page of the report.[FN3]

Dr. Chandarana testified at his deposition that he called Dr. Kaminetsky's office at approximately 7 p.m. on Friday, November 15, 2013, and left a message for Dr. Kaminetsky to call him, and that evening he faxed the report to Dr. Kaminetsky's office. Dr. Chandarana further testified that because he was unable to contact Dr. Kaminetsky by telephone, he submitted a RadClinInfo ticket for the report. The ticket is part of NYU's system to communicate important findings in radiographic report to an ordering physician. Based on the ticket, a staff member of the Radiology Department is responsible for sending the report to, and receiving confirmation of receipt from, the ordering physician. Ms. Shawnna Gayle, an employee of NYU testified that she faxed the report twice to Dr. Kaminetsky's office on Monday, November 18, 2013, and confirmed with "Shawn" at Kaminetsky's office that the fax was received. Dr. Kaminetsky received the report on his iPad and testified that he reviewed the first page of the report with respect to the urologic findings, but did not review the second page of the report, and consequently failed to see the finding related to the colon mass. While Mr. [*3]Kljyan was treated for kidney stones, his colon cancer was not diagnosed until May, 2015, 19 months later when it had metastasized and progressed to Stage IV cancer.

Plaintiffs contend that the NYU defendants departed from accepted medical practices in not directly communicating to Dr. Kaminetsky and in not obtaining confirmation from him of receipt of the finding of a colon mass. Plaintiffs contend that Dr. Chandarana did not comply with the NYUHC Department of Radiology Policy and Procedure Section 4.3, which establishes procedures for communicating with the referring physician "unexpected positive findings," or "new clinically significant findings." Plaintiffs also contend that issues exist as to whether Dr. Chandarana called Dr. Kaminetsky's office, and as to whether Ms. Gayle received confirmation from "Shawn," as, according to Dr. Kaminetsky, there was no one in the office with that name.

As for defendant Dr. Nayel, he was Mr. Kljyan's primary care physician, from 2002 through July 2015. In July 2010, Dr. Nayel diagnosed Mr. Kljyan's father, who was 72 years of age at the time, with colon cancer. Mr. Kljyan testified he was estranged from his father and did not learn of his father's diagnosis until he was diagnosed with the cancer. Plaintiffs contend that based on Mr. Kljyan's father's colon cancer that Mr. Kljyan was at an increased risk of developing the same cancer, and that the standard of care required Dr. Nayel to inform Mr. Kljyan in 2010, when he was 45, that he was at an increased risk, and to advise him to have a screening colonoscopy. Plaintiffs contend that Dr. Nayel failed to advise Mr. Kljyan in 2010 about his need for a colonoscopy, and that this failure was a departure from accepted practice. While Dr. Nayel testified that he did so advise plaintiff in 2010, Mr. Kljyan denies he gave him such advice at that time. Moreover, the Nayel defendants contend that such advice was not required and, in support, cite to certain clinical guidelines that a screening colonoscopy before the age of 50, was advised only for patients with first degree relatives who were diagnosed with colon cancer under 60 years of age. The Nayel defendants further contend that Dr. Nayel advised Mr. Kljyan to have a colonoscopy in 2015, when he reached 50 years of age, and thus, was within the guidelines and standard of care.

While certain factual disputes exist, as framed by the parties, the principal issue in this motion is the standard of care applicable to the radiological services provided by Dr. Chandarana and to the care and treatment provided by Dr. Nayel. The parties sharply dispute this issue and submit affidavits from experts in their individual fields of practice in support of their respective positions. The NYU defendants submit the expert affirmation of Dr. Stephen C. Machnicki, M.D., a radiologist, and plaintiffs oppose with the affidavit of a radiologist.[FN4] The Nayel defendants, in support of their motion, submit the affirmation of Dr. John O'Grady, an internist, and plaintiff in opposition submits the affirmation of an internist/oncologist.

Discussion

To establish a cause of action for medical malpractice, a plaintiff must show "the defendant deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff's injury." Mazella v. Beals, 27 NY3d 694, 705 (2016)(internal citations and quotations omitted).

A defendant moving for summary judgment in a medical malpractice action must make a [*4]prima facie showing of entitlement to judgment as a matter of law by showing "that in treating the plaintiff there was no departure from good and accepted medical practice or that any departure was not the proximate cause of the injuries alleged." Roques v. Nobel, 73 AD3d 204, 206 (1st Dept 2010). To satisfy the burden, a defendant in a medical malpractice action must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars. Id. In claiming that any treatment did not depart from accepted standards, the movant must provide an expert opinion that is detailed, specific and factual in nature. See Joyner—Pack v. Sykes, 54 AD3d 727, 729 (2d Dept 2008). A defense expert opinion should specify "in what way" a patient's treatment was proper and "elucidate the standard of care." Ocasio—Gary v. Lawrence Hosp., 69 AD3d 403, 404 (1st Dept 2010). A defendant's expert opinion must "explain what defendant did and why." Id. (quoting Wasserman v. Carella, 307 AD2d 225, 226 (1st Dept 2003)).

If the movant makes a prima facie showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325 (1986). Specifically, this requires that a plaintiff opposing a defendant's summary judgment motion "submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact.... General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment motion." Id. at 324—25. In addition, a plaintiff's expert's opinion "must demonstrate 'the requisite nexus between the malpractice allegedly committed' and the harm suffered." Dallas-Stephenson v Waisman, 39 AD3d at 307 (1st Dept 2007). If "the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation . . . the opinion should be given no probative force and is insufficient to withstand summary judgment." Diaz v. Downtown Hospital, 99 NY2d 542, 544 (2002).

A. The NYU defendants

With respect to the NYU defendants, the parties agree that Dr Chandarana owed Mr. Kljyan a general duty of care. The duty of a physician is limited "'by those medical functions undertaken by the physician and relied upon by the patients, the question is whether the physician owes a duty under the circumstances of a particular scenario." Burtman v Brown, 97AD3d 156, 161-162 (1st Dept 2012)(citations omitted). Generally, the duty of a radiologist is limited "to interpreting ... films and documenting their findings, ...[and] to communicate significant medical findings to a patient or her treating physician." Mosezhnik v Berenstein, 33AD3d 895, 897 (2d Dept 2006)(citations omitted); Yaniv v Taub, 256 AD2d273 (1st Dept 1998).[FN5] The parties dispute whether Dr. Chandarana, through his actions and those of Ms. Gayle, complied with the standard of care as to the duty that he, as a radiologist, owed to communicate [*5]to Dr. Kaninetsky the radiological findings of the mass in plaintiff's colon.

In connection with their contention that Dr. Chandarana complied with the applicable standard of care and communicated the " new clinically significant findings" to Dr. Kaminetsky, the NYU defendants rely on the affidavit of Dr. Stephen C. Machnicki, M.D., who, as previously stated, is a board-certified radiologist, and who, to the extent relevant, opines as follows.

The standard of care for a radiologist making an unanticipated, clinically significant finding requiring follow-up is to make reasonable attempts to contact the ordering clinician. The method of such communication can vary based on clinician choice, but generally the first attempt to contact the clinician should be via phone call. It is my opinion within a reasonable degree of medical certainty that it was appropriate for Dr. Chandarana, upon discovering the unanticipated colonic mass, to attempt to contact Dr. Kaminetsky by calling his office and leaving a message with Dr, Kaminetsky's answering service requesting that he be called back about Mr. Kljyan. It is further my opinion that, after being unable to reach Dr. Kaminetsky via telephone and waiting approximately an hour on a Friday night without a return phone call, it was appropriate for Dr. Chandarana to turn to the RadClinlnfo system available to him to communicate the unanticipated findings and recommendation for follow-up to Dr.Kaminetsky. As discussed above, the RadClinlnfor system outlined in Section 4.3 ensured that the report of the positive study findings were communicated to the referring physician. There is no dispute this was accomplished in this case. (Id ¶ 35).

It is my opinion within a reasonable degree of medical certainty that Section 4.3 and the RadClinlnfo[FN6] system in place at NYUHC in November 2013 comported with good and accepted standards of medical practice. The American College of Radiology ("ACR") "is a professional medical society dedicated to serving patients and society by empowering radiology professionals to advance the practice, science and professions of radiologic care. (Id ¶ 36).

The ACR guidelines do not require that the communication take any particular form or that it be done verbally or in person from the radiologist to the clinician. The guidelines do state that telephone or in person communication "is appropriate and assures receipt of the findings." The guidelines further state that other forms of communication "may also suffice to demonstrate that the communication has been delivered and acknowledged." According to the guidelines, in instances where the method of communication may not assure receipt of the communication,"the interpreting physician may consider initiating a system that explicitly requests [*6]confirmation of receipt of the report by the clinician."[FN7]

(Id ¶ 38).

It is my opinion within a reasonable degree of medical certainty that Section 4.3 and the RadClinlnfo system are effective methods of ensuring the goals highlighted by the ACR in its section on nonroutine communications and is therefore within the standard of care. As mentioned above, Dr. Chandarana's report contained a clear, concise and conspicuous statement of his unanticipated finding. This statement was timely and effectively communicated to Dr. Kaminetsky on three separate occasions via facsimile, his preferred method of receiving reports. This communication was confirmed via the facsimile reports as well as by a follow up telephone call by a secretary at the NYUHC Department of Radiology. It is undisputed that the communication reached the referring physician in a timely manner, that Dr. Kaminetsky had the report on his iPad, and that he reviewed a portion of that report, but failed to review it entirely.

(Id ¶ 40).

In support of their contention that Dr. Chandarana did not comply with the standard of care and that he failed to effectively communicate to Dr. Kaminetsky the "unexpected positive findings" or "new clinically significant findings, "plaintiffs point to the affidavit of their expert board certified radiologist, who opines that:

direct, effective communication was required by the standard of care precisely to prevent what happened here. While N.Y.U. may have confirmed a fax was transmitted and even that it was received, no steps were ever attempted or undertaken after the failed phone call Friday evening [*7]to make sure that the referring clinician had been made aware of the most important information in the report -the unexpected positive, clinically significant new finding of a mass in the colon probably cancerous that required further evaluation and follow-up. N.Y.U.'s and its Radiologist's failures to effectively communicate with Dr. Kaminetsky were departures from the standard of care. (Plaintiffs' expert radiologist Aff. ¶ 63) (emphasis in original)

He further opines that.

N.Y.U.'s system of assigning a medically-uneducated secretary to do the only follow-up and then merely to have her confirm a fax had been received did not meet the requisite standard of care. N.Y.U.'s failure to require its Attending Radiologist to follow-up was also a departure from the standards of radiologic practice. All of these departures were competent producing causes of the lengthy delay from November 2013 to June 2015.in diagnosing Mr. Kljyan's colon cancer and commencing treatment of his cancer. (Id. ¶'s 64, 65).

He also rejects Dr. Machnicki's opinions, specifically stating that:

...the standard of care does require direct communication of the significant or new positive findings by the radiologist to the clinician [and that] [e]ven N.Y.U.'s protocol mandated confirmation of communication of such findings to the referring physician. Dr. Machniki admits that at least one attempt "by the radiologist to the clinician," i.e., a telephone call by Dr. Chandarana to Dr. Kaminetsky, should be made to ....[b]ut a single, unsuccessful effort at a telephone call is not sufficient to comply with good practice. Further, in saying that the standard of care was met by N.Y.U. and its radiologist, Dr. Chandarana, Dr. Machniki has simply equated receipt of the fax at the clinician's office with proof that the clinician actually had been informed of or alerted to those findings and their significance....However, "effective communication" as dictated by the standard of care means communication by the radiologist with the referring clinician. As this case so tragically illustrates, simply "communicating" with the referring doctor's office did not confirm that "the positive findings were communicated to the referring physician." The standard requires personal communication with the physician, or with someone who affirmatively confirmed that the physician has been informed specifically of the significant or unexpected positive findings and of their import. That is the sine qua non of the standard of care. N.Y.U. and Dr. Chandarana failed to comply. (Id ¶'s 67-69)(emphasis supplied).

From the expert affidavits, the crux of the disagreement between the experts is whether the standard of care required Dr. Chandarana, after unsuccessfully trying to reach Dr. Kaminetsky by telephone Friday evening, to personally communicate to Dr. Kaminetsky, by telephone or through some other acceptable means, the findings of the colon mass. The experts agree that the standard of care required Dr. Chandarana to attempt to reach Dr Kaminetsky by telephone and the ACR Guideline cited by the NYU defendants states that communication by telephone "assures receipt of the findings." The ACR Guideline also states that "[c]ommunication methods are dynamic and varied... [and that] communications be handled in a manner most likely to reach the attention of the treating or ordering physician/health care provider..." In this regard, Dr. Machniki opines that after the telephone attempt, that the Section 4.3 and RadClinInfo system are effective means of ensuring receipt of the findings, that they meet the goals of the ACR Guideline, and are within the standard of care. Plaintiffs' expert [*8]points out that this contention equates the receipt of the fax at the clinician's office with proof that the clinician had been informed of the findings, and delegates responsibilities of all communication, to a non-medical employee. Plaintiffs' expert opines that the standard of care requires effective communication and to ensure this, Dr. Chandarana was required to directly communicate the findings to Dr. Kaminetsky.

The underlying issue with respect to the standard of care is the nature and extent of the duty of a radiologist to ensure that an ordering physician is aware of significant or new positive findings. While the NYU defendants are correct that whether a physician owes a duty of care is a question for the court, they are incorrect that the duty is limited to documenting findings in a report to a referring physician. As stated above, a radiologist has a duty to communicate significant medical findings to a patient or her treating physician. See Mosezhnik v Berenstein, 33AD3d at 897; Yaniv v Taub, 256AD2d at 274.

To the extent the NYU defendants imply in their reply papers, that the ACR Guideline is the standard of care, such argument is unpersuasive. As detailed in the discussion below with respect to the Nayel defendants, the standard of care for physicians is one established by the medical profession, Toth v Community Hospital at Glen Cove, 22 NY2d 255, 262 (1968). Guidelines are a factor to be considered with respect to the standard of care, but they are recommendations regarding treatment, and compliance with guidelines does not "constitute good and accepted medical practice." Halls v Kiyici, 104AD3d 502,504 (1st Dept 2013)(citations omitted). Moreover, the NYU defendants' argument that compliance with the ACR Guideline cannot represent a departure, based on the decision in Ellis v. Eng, 70 AD3d 887 (2d Dept 2010), fails, as Ellis is distinguishable on its facts. In Ellis, plaintiff's expert specialty was laparoscopic, trauma, and general surgery and not in the field of cancer or gastrointestinal surgery which were at issue, and thus, plaintiff's expert was required to lay a foundation for his opinion. The court held that since the expert cited guidelines by the American Society of Clinical Oncology as the basis of his decision, and since the guidelines did not support his opinion, defendants were entitled to summary judgment. Thus, Ellis does not stand for the proposition that compliance with the guideline cannot be a departure. As to the argument that plaintiffs' expert expresses his personal opinion as to the standard of care, this ignores the expert's reference to the agreement among the experts and the ACR Guideline that a telephone communication with the clinician is the best method of communicating as it assures receipt of the finding, and his reference to NYU's Policy and Procedure Section 4.3 requiring that positive findings be communicated to the referring clinician in support of his opinion.

The NYU defendants also argue that plaintiffs have failed to establish proximate cause as a matter of law and rely on cases in which courts have held that where a physician receives a radiologist's report, the alleged failure to communicate the findings to the referring physician or patient was not a proximate cause of a plaintiff's injuries, citing e.g. Glasheen v. Long Island Diagnostic Imaging, 306 AD2d 515 (2d Dept 2003). To the extent this legal argument is first raised in reply, it is not properly before the court.[FN8] See generally, Dannasch v. Bifulco, 184 [*9]AD2d 415 (1st Dept 1992).

In any event, the argument does not provide a basis for granting summary judgment to the NYU defendants. Specifically, in the cases relied on by the NYU defendants, there was no issue as to whether the defendant responsible for reporting the results of a test departed from the standard of care with respect to the manner in which such results were communicated to the referring physician and/or the patient. Thus, in Glasheen v. Long Island Diagnostic Imaging , 306 AD2d 515 (2d Dept 2003), which was analyzed as a negligence cause of action, it was noted that both the patient and the referring physician received the findings of the mammography shortly after the films were reviewed and under these circumstances, there was no cause of action in negligence. Glasheen v. Long Island Diagnostic Imaging, 303 AD2d 365 (2d Dept 2003), lv denied 100 NY2d 512 (2003), on which the NYU defendants also rely and which involved the same plaintiff, is distinguishable as in that case, the court found that there was no physician- patient relationship between the defendant pediatric physician and plaintiff. Specifically, the court found that the defendant pediatric physician had no duty to forward a mammography report of plaintiff, who was the mother of his patient, to a surgeon where the mother had a copy of the report and delivered it to the surgeon.

As for Mosekihnik v. Berenstein, 33 AD3d 895, 898 (2d Dept 2006), of relevance here, the Appellate Division found that the defendant Doshi Imaging could not be held liable in ordinary negligence for purportedly failing to adequately communicate the mammography results to plaintiff, noting that "[t]he overwhelming evidence in the record demonstrates that the plaintiff or her treating physician ...obtained all the mammography reports or the results thereof from Doshi Imaging."

In contrast to the cases relied on by the NYU defendants, in this case, while Dr. Kaminetsky's office was faxed the report at issue, as indicated above, there are significant issues of fact as to whether this mode of communicating was sufficient given the "unexpected positive findings" or "new clinically significant findings, " contained in the report. Moreover, the precedent cited by the NYU defendants addressed duty and proximate cause in terms of ordinary negligence, while the issue in this case, as framed by the parties, is whether the NYU radiologist committed medical malpractice by departing from a standard of care in the way the unanticipated/significant finding in the report was communicated to the referring physician and patient. As plaintiffs, through their expert's affidavit, have raised issues of fact both as to whether the radiologist departed from the standard of care in the way he communicated the findings in the report, and whether such departure was a proximate cause of Mr. Kljyan's injuries, summary judgment must be denied. See Florio v. Kosimar, 79 AD3d 625, 626 (1st Dept 2010).

B. The Nayel defendants

With respect to the Nayel defendants, the affidavit of their expert, John O'Grady, M.D., states he is board certified in internal medicine. Dr. O'Grady opines that Dr. Nayel acted within "accepted norms of cancer screening,"[FN9] in referring Mr. Kljyan for a colonoscopy in February

2015, when he reached 50 years of age, and the fact that Mr. Kljyan's father was diagnosed with colon cancer at age 72 in 2010, did not place plaintiff in a higher category of risk so as to prompt colon cancer screening before that time.

Dr. O'Grady states that the standard of care from 2010 to present "for colon cancer screening for white males is to begin at age 50 and every 10 years thereafter. The same standard applies to white males who have a family history of a first degree relative (father) who has been diagnosed at age 60 or older. If a patient has a family history of a first degree relative who has been diagnosed before the age of 60, screening should begin at age 40" (O'Grady Aff. ¶ 53).

Dr. O'Grady bases his opinion as to the standard of care on the recommendation of the American College of Gastroenterology and the Institute of Clinical Systems Improvement, which state that for white males, a screening colonoscopy should be performed beginning at age 50, "including those patients who have a family history of a first- degree relative who has been diagnosed with colon cancer at age 60 or older" (O'Grady Aff. ¶ 54). With respect to factual support for his opinion, Dr. O'Grady points to Dr. Nayel's testimony that he was not aware of the 2013 CT scan or the results, and to the absence of the 2013 report or reference to the report in Dr. Nayel's office records.

Plaintiffs' expert, an internist/oncologist states that while he agrees generally that the standard of care for males at average risk for colon cancer is a screening colonoscopy at age 50, he disagrees that Mr. Kljyan was "at an average risk." He further states that the fact that Mr. Kljyan's "father, a first degree relative, had been diagnosed with colorectal cancer presented an increased risk to [Mr. Kljyan]" (Plaintiffs' Expert Affirm ¶ 56).

Specifically, he states that:

The entire rational for prescribing colonoscopy for a patient under 50 when a primary degree relative has been diagnosed is based upon the incredibly complex genetic factors involved. Our knowledge of genetic science is such that we know that when the first degree relative is under 60 when diagnosed, the risk of a younger relative developing colon cancer is multiplied by anywhere from two to eight times. However, we are also aware that even when the first degree relative is over 60 at diagnosis, the younger patient's risk is, in fact, increased; published data supports this. See, for instance, "A Prospective Study of Family History and the Risk of Colon Cancer," New England Journal of Medicine, 1994. (Id ¶ 60).

As to Dr. O'Grady's reference to the recommendations from the American College of

Gastroenterology and the Institute for Clinical Systems Improvement, plaintiffs' expert refers to them as "guidelines" and states that these "guidelines" are not the standard of care (Id ¶'s 57-58). Plaintiffs' expert notes however, in support of his opinion, that the guidelines of the American Cancer Society state that "people with a history of colorectal cancer in a first degree relative (parent, sibling, or child) are at an increased risk[FN10] (Id ¶ 61). Plaintiffs' expert opines that because Mr. Kljyan was at in increased risk, the standard of care required Dr. Nayel to refer Mr. Kljyan for a colonoscopy in 2010, when his father was diagnosed with the cancer, and in failing to make such referral, Dr. Nayel departed from accepted medical practice.

In reply, the Nayel defendants argue that the authors of the article, "A Prospective Study of Family History and the Risk of Colon Cancer," referenced by plaintiffs' expert conclude that [*10]they support the American Cancer Society recommendation that "people with one or more first-degree relatives who received a diagnosis of colorectal cancer at age 55 years of age or younger should undergo screening colonoscopy beginning at the age of 35 to 40 years." Defendants then argue that based on the guidelines in the article cited by plaintiffs' own expert, Dr. Nayel did not depart from accepted standards.

The Nayel defendants' second argument in reply is that since plaintiffs' expert has given an opinion that differs from that given by the defendant's expert, and since plaintiffs' expert does not contest the guidelines from the American College of Gastroenterology and the Institute for Clinical Systems Improvement, there "are differing recommendations by respected medical authorities about when to begin screening colonoscopies." Noting that the medical profession is permitted to establish its own standard of care and that a physician who adheres to accepted

community standards of practice is "insulate[d] from tort liability," the Nayel defendants argue that as Dr. Nayel followed recommendations of one respected medical authority, he did not depart from accepted practice.

Based on the foregoing arguments and contentions, the major issue with respect to the applicable standard of care centers on the legal implications of the relation between the guidelines or recommendations by medical authorities and the standard of care.

The standard of care for physicians is one established by the medical profession. Toth v Community Hospital at Glen Cove, 22 NY2d at 262; see also Spensieri v. Lasky, 94 NY2d at 237 (noting that "[g]enerally, the standard of care for a physician is one established by the profession itself [and that] a physician will usually be insulated from tort liability where there is evidence that he or she conformed to accepted community standards of practice").[FN11]

With respect to the guidelines such as those at issue here, the Court of Appeals, while noting that "scientific works generally are excluded as hearsay," has stated that "[f]or well over a decade, commentators have debated whether clinical practice guidelines should be admitted for their 'truth' as evidence of the standard of care." Hinlicky v Dreyfuss, 6 NY3d 636, 645 (2006)(citations omitted). In Hinlicky, while the Court held that an algorithm from clinical guidelines was properly admitted as demonstrative evidence, it was admitted, not for its truth, but to show the defendant doctor's deliberative process and in conjunction with the doctor's testimony, the Court cautioned that because jurors may draw unsupported inferences from evidence introduced from clinical guidelines, "courts should circumscribe their use substantively by medical experts.[FN12] " Id., at 647. In Halls v Kiyici, 104AD3d 502,504 (1st Dept 2013) the First Department held that the guidelines at issue were "simply recommendations regarding treatment, and thus, compliance with the guidelines did not, in and of itself, constitute good and accepted medical practice" (citations omitted). It must be noted, that the factors that make up the standard of care, which include clinical guidelines, are not addressed in depth by either the Nayel defendants' nor by plaintiffs' expert affidavits, and in reaching the above conclusions, this court makes no determination as to the legal implications of the guidelines in relation to the standard of care.

Nor are the Nayel defendants entitled to summary judgment based on their second argument that different standards of care exist based on different recommendations by respected medical authorities, and since Dr. Nayal followed one of the recommendations, he is not liable. The Nayel defendants are correct that "[w]here alternative procedures are available to a physician, any one of which is medically acceptable and proper under the circumstances, a physician cannot be held liable for malpractice when he uses one of two acceptable techniques." Schreiber v. Cestari, 40 AD2d 1025, 1026 (2d Dept 1972). However, the instant case does not present an issue as to the acceptability of alternative medical procedures or course of treatment, but as to the standard of care applicable to providing a patient the proper medical care and treatment. According, the Nayel defendants' motion for summary judgment is denied.

Conclusion

In view of the above, it is

ORDERED that the motion for summary judgment by defendants David T. Liu, M.D., University Nephrology Associates, LLP, University Urology Associations, LLP, NYU Hospitals Center s/h/a "NYU Langone Medical Center," and NYU Health System (motion sequence no. 004) is granted only to the extent of dismissing the complaint against defendants David T. Liu, M.D., University Nephrology Associates, LLP, University Urology Associations, LLP, and dismissing the claims for lack of informed consent, and is otherwise denied; and it is further

ORDERED that the Clerk shall enter judgment dismissing the claims against defendants David T. Liu, M.D., University Nephrology Associates, LLP, University Urology Associations, LLP; and it is further

ORDERED that the motion for summary judgment by defendant Amr A. Nayel, M.D. and Amr R. Nayel, M.D., P.C., d/b/a Astoria Health Care Associates, LLP (motion sequence no. 005) is denied.

DATED: November 14, 2017 Footnotes

Footnote 1:Motion sequence nos. 004 and 005 are consolidated for disposition.

Footnote 2:According to the plaintiffs' expert, an internist/oncologist, "[n]eoplasm means cancer. Colonic refers to the colon, the large bowel. 'Suspicious' is medical language implying the radiologist believes that there is a substantial possibility that the 'soft tissue mass' was cancer, located in the distal part of the colon, the portion before/approaching the rectum." (Plaintiff's expert internist/oncologist Aff., ¶ 25). The defendants' experts do not dispute this and both NYU's expert Dr. Stephen C. Machnicki, M.D., a radiologist, and the Nayel defendants' expert Dr. John O'Grady, refer to soft tissue mass referred to in the report as suspicious for a colonic neoplasm, although Dr. Machnicki indicates in a footnote that a neoplasm may or may not be cancerous. (Machnicki, Aff., ¶'s, 23 26 O'Grady Aff.,¶28 ).

Footnote 3:On the first page of the report under "Other Findings" the second and third sentences state: "There is no bowel obstruction. There appears to be a soft tissue involving the descending/sigmoid colon (series 11 image 7.5) with adjust rounded lymph node measuring 1 cm (series 11, image 103)."

Footnote 4:While the names and signature of plaintiffs' experts have been redacted in the submissions, their unredacted, signed affidavits have been submitted in camera. See Vega v. Mount Sinai-NYU Medical Center and Health System, 13 AD3d 62, 63 (1st Dept 2004).

Footnote 5:Both Mosezhnik and Yaniv discuss the duty to communicate in the context of ordinary negligence. Here, the parties discuss the duty in the context of medical malpractice and offer opinions from experts with respect to the standard of care. Under these circumstances, this decision will consider the issue as framed by the parties, but makes no dispositive ruling as to any issue not raised in this motion.

Footnote 6:Section 4.3 provides, to the extent relevant, that "special communication to the referring clinician is required where there are unexpected positive findings or new clinically significant findings...the communication to the referring clinician or attending E.D. physician should be documented either in the body of the final report or in an addendum of the final report.For nonurgent cases, if the referring physician cannot be contacted when the radiologist is attempting to communicate unexpected positive findings, new clinically significant findings then...the attending radiologist will enter the accession number of the study in question in to the department's web-based RadClinlnfo application Follow-up Queue. Our department staff will access this system throughout the day (Mon-Fri) and will contact the office of the referring physician. All such communication will be documented and saved."

Footnote 7:The relevant ACR Guideline provides: c. Methods of communication Communication methods are dynamic and varied. It is important, however, that nonroutine communications be handled in a manner most likely to reach the attention of the treating or ordering physician/health care provider in time to provide the most benefit to the patient. Communication by telephone or in person to the treating or referring physician or his/her representative is appropriate and assures receipt of the findings. This may be accomplished directly by the interpreting physician or, when judged appropriate, by the interpreting physician's designee. There are other forms of communication that provide documentation of receipt which may also suffice to demonstrate that the communication has been delivered and acknowledged. While other methods of communication may be considered, including text, pager, facsimile, voice messaging, and other nontraditional approaches, these methods may not assure receipt of the communication. Therefore, in these instances, the interpreting physician may consider initiating a system that explicitly requests confirmation of receipt of the report by the clinician. If confirmation or other response is not received within a time appropriate to the diagnosis after the initial communication, a staff person should notify the clinician to document follow-up. Regardless of the method selected, it must be in compliance with state and federal law.

Footnote 8:While the NYU defendants first make this legal argument in reply, in his affidavit in support of their motion for summary judgment their radiology expert opines that any alleged departures or negligent acts and omissions of NYUHC personnel with respect to communicating the positive test results were not a proximate cause of Mr. Kljyan's injuries. See Machnicki Aff. ¶ 9

Footnote 9: The Nayel defendants also contend that there are issues with respect to causation. Since this contention is based on the argument that as Dr. Nayel did not depart from the standard of care, he is not liable for any of Mr. Kljyan's alleged injuries, it need not be addressed separately from the discussion about the standard of care..

Footnote 10:He notes that the risk is even greater if that relative was diagnosed with cancer when the relative was younger than 45.

Footnote 11:In footnote 5, the Hinlicky court noted that "in Diaz v New York Downtown Hosp. (99 NY2d 542, 545 [2002]), we rejected the use of clinical practice guidelines by plaintiff's expert to prove an accepted practice where the authoring body explicitly stated the guidelines were 'not rules' and the expert failed to set forth a factual basis for her reliance on them."

Footnote 12:As previously noted, the parties sharply dispute the standard of care. As discussed above, precedent holds that guidelines from such authorities do not constitute the standard of [*11]care. Thus to the extent that the Nayel defendants argue that Dr. Nayel complied with the standard of care by complying with guidelines by the American College of Gastroenterology and the Institute of Clinical Systems Improvement in referring Mr. Kljyan for a colonoscopy at 50 years of age, the guidelines are not dispositive, and the Nayel defendants have failed to establish prima facie entitlement to summary judgment. In any event, even if it is assumed that the Nayel defendants have met their prima facie burden, the opinion of plaintiffs' expert that Mr. Kljyan was at an increased risk of colon cancer based on his father's diagnosis, and his citation to medical literature in support, creates issues of fact which preclude summary judgment. See Florio v. Kosimar, 79 AD3d at 626 (conflicting expert affidavits raise issues of fact warranting the denial of summary judgment).[FN13] The Nayel defendants' argument with respect to the guidelines of the American Cancer Society supported by the authors of the article plaintiff cites, "A Prospective Study of Family History and the Risk of Colorectal Cancer," is not dispositive as implicit in this argument is the proposition that guidelines are the standard of care.