Smith v University Diagnostic Med. Imaging, P.C.

Smith v University Diagnostic Med. Imaging, P.C. 2007 NY Slip Op 06494 [43 AD3d 344] August 23, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 3, 2007

Jerry C. Smith, Individually and as Administrator of the Estate of Delois Smith, Deceased, Appellant,
v
University Diagnostic Medical Imaging, P.C., et al., Defendants, and Jack D. Weiler Hospital of the Albert Einstein College of Medicine, a Division of Montefiore Medical Center, et al., Respondents.

—[*1] Alexander J. Wulwick, New York, for appellant.

Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains (Edward J. Guardaro, Jr. of counsel), for respondents.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about October 3, 2006, which granted the motion of defendants Montefiore Medical Center, Sparano and Michalski for summary judgment dismissing the complaint and all cross claims against them, unanimously affirmed, without costs.

The "Montefiore" defendants established, through medical records, deposition testimony and two medical expert affirmations, prima facie entitlement to summary dismissal of the medical malpractice and wrongful death allegations premised on failure to diagnose and treat in a timely fashion the decedent's intraductal carcinoma that was discovered in her breast during an examination by Dr. Sparano, a medical oncologist, conducted in August 2000. Plaintiff's opposition papers, including supporting expert affidavits, failed to raise a triable issue of fact as to whether these Montefiore defendants had deviated from accepted medical practice when they followed a close observation treatment plan after a February 1999 biopsy had indicated possible ductal carcinoma in situ in the decedent's left breast. Referrals of the biopsy specimen to several pathologists yielded equivocal findings. The decedent consulted an independent radiation oncologist regarding treatment, and was advised against radiation due to her other medical issues. Plaintiff points to no evidence that the decedent was prepared to deviate from such medical advice. Uncontradicted evidence further established that Dr. Michalski, the decedent's surgeon oncologist, had discussed various treatment options with her, and as in the past, the decedent expressed preference for noninvasive measures. Despite regular follow-up exams and testing, [*2]there was no evidence of invasive cancer in the decedent's left breast until a lump was discovered during the August 2000 exam. Concur—Mazzarelli, J.P., Andrias, Saxe, Sweeny and Malone, JJ.