DeJesus v Lichtenstein

[*1] DeJesus v Lichtenstein 2004 NY Slip Op 51815(U) Decided on December 17, 2004 Supreme Court, Bronx County Salerno, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2004
Supreme Court, Bronx County

ELAINE DeJESUS, Plaintiff,

against

RALPH LICHTENSTEIN, M.D., DAVID H. NOBLE, M.D., PRAVIN PATEL, M.D., MAHENDRA PATEL, M.D., UNIVERSITY DIAGNOSTIC MEDICAL IMAGING, P.C., and BOSTON ROAD MEDICAL ASSOCIATES, Defendants.



21674/02

George D. Salerno, J.

Defendants, DR. PRAVIN PATEL, DR. MAHENDRA PATEL, and BOSTON ROAD MEDICAL ASSOCIATES, (collectively referred to as Patel) motion for summary judgment and other related relief is denied.

This is a malpractice action to recover damages for personal injuries premised on the alleged failure of the moving defendants to timely diagnose breast cancer. Defendants, Dr. Mahendra Patel, and Dr. Pravin Patel, are licensed physicians specializing in internal medicine, and are employed by Defendant Boston Road Medical Associates (Patel's answer ¶ 2). The remaining Defendants, Ralph Lichtenstein, M.D., David H. Noble , M.D., and University Diagnostic Medical Imaging, P.C., are Radiologists who have not joined in Patel's motion to dismiss plaintiff's complaint.

Patel's motion is supported by their attorney's affirmation, a copy of the pleadings, plaintiff's bills of particulars, selected portions of the transcript of plaintiff's examination before trial, plaintiff's medical records lumped together as one exhibit, various imaging studies performed by University Diagnostic Medical Imaging, P.C., and selected portions of their pre-trial examination.

BACKGROUND

Plaintiff, Elaine DeJesus, became a patient at Defendant Boston Road Medical Associates, (the Group where Defendants, Dr. Mahendra Patel, and Dr. Pravin Patel practice), in November 1981, when she was 25 years old. They were plaintiff's primary care physicians. ( M. Patel's EBT, pp.11,22).

On January 20, 2000, at the age of 43, Plaintiff presented to the Group, for a referral authorization to undergo a mammogram ( required by her health insurance company) and on that occasion met with Dr. Pravin Patel. Plaintiff [*2]testified that when she met with Dr. Pravin Patel for the authorization, she told him that upon self-examination, she felt a lump in her left breast. (Plaintiff's EbT, pp.66-67). After obtaining the authorization from Dr. Patel, a mammogram was performed on February 1, 2000 by a radiologist at University Diagnostic Medical Imaging. The Radiologist sent his Report, containing his findings of the mammogram, directly to Dr. Pravin Patel who acknowledged receiving this Report. The Radiologist made the following finding: " VERY DENSE FIGROGLANDULAR AND FIBROCYSTICAPPEARING CHANGES SEEN BILATERALLY. NO SUSPICIOUS MASSES BUT CLOSE CLINICALL CORRELATION IS ADVISED." (Dr. Lichtenstein's Mammography Report, Plaintiff's Ex H. "B", p.5).

Dr. Pravin Patel, conveyed, to the Plaintiff, the results of the mammography and told plaintiff "nothing to worry about." (Plaintiff's EBT, p. 79). Defendants Patel acknowledge that Plaintiff was thereafter treated 7 more times for various ailments unrelated to her left breast on February 21, 2000, March 24, 2000, April 20, 2000, April 29, 2000, September 16, 2000, November 27, 2000 and December 8, 2000. ( M. Patel's EBT, p.14).

It was not until plaintiff's February 8, 2001 visit to the group did Dr. Mahendra Patel upon palpating plaintiff's breast, detect a lump. He noted in Plaintiff's chart that the patient: "states she has a left breast mass, increase in size and has pain. Patient has this mass for last one year or so. Seen M.D. and was told to follow-up." ( M. Patel's EBT, p.15) At that time, she referred Plaintiff for a (second) mammogram. ( M. Patel's EBT, p.16-18).

On February 15, 2001 a mammography was performed by Dr. Noble who sent a report to Dr. Mahendra Patel identifying the presence of a lump; and stated, "breast without significant change compared to the mammogram performed on December 1, 2000 parenchyma. To further evaluate the patient's palpable lump within the left upper outer quadrant, a targeted sonogram may be helpful." (Dr. Noble's Mammography Report, Plaintiff's Exh. "B", p. 14). A sonogram was performed on February 22, 2001 by Dr. Noble who in the report sent to Dr. Mahendra Patel, states:

"No focal sonographic abnormality is noted underlying

the region of the patient's palpable mass. The presence

of a palpable abnormality, without mammographic or

sonographic corroboration, should not deter further

evaluation. Incidental note is made of a 5 mm x 4 mm x [*3]

5 mm cyst within the 3 o'clock position of the left

breast." [emphasis added] (Dr. Noble's Mammography

Report, Plaintiff's Exh B, p. 15).

Defendants' Contentions

Patel contends that they are not gynecologists or radiologists and since the report, dated February 1, 2000, prepared by the radiologist who performed the mammogram was negative they cannot be held liable.

The core of the factual dispute, as portrayed in the moving and opposing affidavits, in part, centers on whether plaintiff allegedly reported to Dr. Pravin Patel that she felt a lump on her breast on January 20, 2000. This conversation is strongly challenged and denied by Dr. Pravin Patel who questions plaintiff's veracity, pointing to the absence of any such conversation in plaintiff's chart, as well as plaintiff's failure to mention the presence of a lump when she saw the radiologist who performed the mammogram on February 1, 2000. Apart from this disputed conversation, the essence of Patel's argument is that they were not obligated to examine plaintiffs breasts after they referred the plaintiff for a mammogram even though they received the report rendered by Dr. Lichtenstein who advised the necessity for close clinical evaluations because plaintiffs breasts are dense fibroglandular with fibrocystic changes. However, although presented with this report Patel nevertheless treated the plaintiff for various ailments on February 21, 2000, March 24 2000, April 20, 2000, April 29, 2000, September 16, 2000, November 27, 2000 and December 8, 2000 without performing a breast examination. Therefore, at issue is whether Patel departed from acceptable medical standards in failing, as plaintiff contends, to properly monitor and clinically correlate the findings contained in the report rendered by University Diagnostic Medical Imaging who performed a mammogram on February 1, 2000.

APPLICABLE LAW:

Summary Judgment:

The proponent of a motion for summary judgment carries the initial burden to tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. (Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923, 501 NE2d 320 [1986].) Once that initial burden has been satisfied, the burden shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden, however, always remains where it began, i.e., with the proponent of the issue. Thus "if the evidence on the issue is evenly balanced, the party that bears the [*4]burden must lose." (Director, Office of Workers Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 114 S. Ct. 2251, 129 L. Ed. 2d 221 (1994); 300 East 34th Street Co. v. Habeeb, 248 AD2d 50, 683 NYS2d 175 [1st Dept. 1997].)

The role of the court is to determine if bona fide issues of fact exist, and not resolve issues of credibility. As the Court stated in Knepa v. Tallman, 278 AD2d 811, 718 NYS2d 541 [4th Dept. 2000]): "..Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcock, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 669, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 341, 357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present credibility issues for trial (see, Schoen v. Rochester Gas & Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra )."

(See also Yaziciyan v, Blancato, 267 AD2d 152, 700 NYS2d 22 [1st Dept. 1999]; Perez v. Bronx Park South Associates, 285 AD2d 402, 728 NYS2d 33 [1st Dept. 2001]; Glick & Dolleck Inc. v. Tri-Pac Export Corp., 22 NY2d 439, 441; Singh v. Kolcaj Realty Corp., 283 AD2d 350, 725 NYS2d 37 [1st Dept. 2001].)

The court's function in determining a motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 144 NE2d 387, 165 NYS2d 49 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Robuta Extruders v. Ceppos 46 NY2d 223,385 NE2d 1068, 413 NYS2d 141 [1978].) Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 8 NY2d 8, 167 NE2d 328, 200 NYS2d 627 [1960]; Sillman v. Twentieth Century Fox Film Corp., supra ).

Elements Of A Malpractice Action:

The essential elements of a medical malpractice action are: "deviation or departure from accepted standards of practice" in the community; and that "such departure is a proximate cause of the injuries sustained." See Bard, NY Medical Malpractice, §1.1, p. 1-17 (1994); Barracca v. St. Francis Hospital 237 AD2d 396, 655 NYS2d 565 De Stefano v. Immerman 188 AD2d 448, 591 NYS2d 47. Here, plaintiff contends that Patel departed from acceptable medical standards in failing [*5]to follow the recommendation made by the radiologist who performed the mammogram on February 1, 2000.

In Kletnieks v. Brookhaven Mem. Assn. (53 AD2d 169, 176), the rule was stated as follows:

"Clearly, on a trial of a medical malpractice action, as in any negligence action, a verdict finding liability can be sustained only if the proof adequately demonstrates that the negligence claimed (i.e. the `departure `) is the `proximate cause` of the injuries sustained (see, Foley v. Gillick, 39 AD2d 546; Woods v. Pisillo, 35 AD2d 597; Peloro v. Abbondante, 35 AD2d 561; of Sherman v. Concourse Realty Corp., 47 AD2d 134)."

The Court of Appeals in Kallenberg v. Beth Israel Hospital 45 AD2d 177, 357 NYS2d 508, aff'd 37 NY2d 719, 374 NYS2d 615 established the substantial possibility standard which requires the jury to determine whether defendants' failure to provide treatment in accordance with acceptable medical standards deprived plaintiff of a better recovery. The Court in Kallenberg, supra , stated:

"The question of proximate cause is a jury question,

and a jury alone may weigh conflicting evidence

and determine the credibility of witnesses and the

weight to be accorded expert testimony. On the

record before us, it is clear that the jury could find,

as it did, that had Mrs. Kallenberg been properly

treated with the indicated medication of choice, her

blood pressure could have been kept under control,

and she might have improved sufficiently, even

after August 22, to undergo surgery and make a

recovery."

Thereafter in Kimball v. Scors 59 AD2d 984, 399 NYS2d 350 and in Mortensen v. Memorial Hospital 105 AD2d 151, 483 NYS2d 264, 269 the Court held that the negligent act or omission must be a substantial factor in causing plaintiff's injury.

DISCUSSION

Patel attempts to absolve themselves from liability by initially attacking [*6]plaintiff's veracity regarding plaintiff's testimony that she told Dr. Pravin Patel that she felt a lump in her left breast. In addition, defendants' Patel assert that although they received the radiologist's mammography report they were not obligated to review the report with plaintiff and clinically perform breast examinations at the subsequent visits plaintiff made to the group or refer the radiologists report to a gynecologist for clinical examinations to rule out the presence of an existing tumor. Patel never pursued such options which ultimately led to a modified radical mastectomy and a Stage 111 cancer evaluation.

Defendants' position, as set forth by their expert, Dr. Peter Barland, is essentially that: since Patel provided plaintiff with referrals for a mammogram and sonogram in the year 2001 to a breast surgeon when she complained of a breast mass in the year 2001, the moving defendants met the standard of care, Barland Affidavit, February 12, 2004, p.4.)

However, Dr. Barland's opinion is flawed. His opinion, in part, is grounded on Patels' version of the events namely, that: "Plaintiff did not complain to any physician in the year 2000 regarding a lump in her breast; specifically she did not complain to Dr. P. Patel, or to any physician associated with Boston Road Medical Associates." Dr. Barland also attempts to exonerate Patel by contending, "even if it is true that [Plaintiff] told Dr. Patel that she had a breast lump in 2000, he met the standard of care by referring her for a mammogram. Since the mammogram was reported to him as normal, the standard of care did not require any further evaluation." (Barland Affidavit, dated February 12, 2004, p.4).

In this regard, Patel's Counsel repeatedly attacks Plaintiff, accusing her of not being truthful about her alleged conversation with Dr. Pravin Patel, in January 2000, regarding the lump in her breast. However, it is axiomatic that this Court cannot make credibility determinations when faced with conflicting versions of material facts on a summary judgment motion. (Siegel, NY Practice, § 278p, 438 (3d Ed. 1999; Celentano v. St. Luke's Roosevelt Hospital 170 AD2d 198, 565 NYS2d 98)

In contrast to Patel's position, Plaintiff's expert states: "It is my

opinion, within a reasonable degree of medical certainty, that given the size of the mass found in February 2001, a proper breast examination performed upon Ms. DeJesus [by an internist or general practitioner] a year earlier would certainly have detected the presence of a lump or mass. It was a clear departure from acceptable standards of medical practice for the primary physicians to fail to follow up on the recommendation for close clinical correlation notwithstanding that they had an opportunity to do so on the several occasions thereafter when the patient had [*7]presented on February 21, 2000, March 24, 2000, April 20, 2000, April 29, 2000, and September 16, 2000, [etc]. At the very least, these doctors should have performed a routine breast examination, and had one been performed, they would have found the lump that ... the patient reported she had for the last year or so." [emphasis added] (Plaintiff's Expert's Affidavit, p.6).

On October 22, 2001, Plaintiff underwent a left modified radical mastectomy. The surgical pathology report, states: "Left modified radical mastectomy specimen showing invasive and in-situ ductal carcinoma (6cm) involving all quadrants of breast and lactiferous ducts of nipple. ...Nine out of thirteen lump nodes contain metastatic duct carcinoma". Dr. Hague's Surgical Pathology report, October 22, 2001, (Plaintiff's Exh E, p.10).

Plaintiff's expert emphasizes: "that it was a departure from good and accepted medical practice for Defendant primary care physicians to fail to follow the recommendation- for close clinical correlation and that it was a departure ... for those physicians, once having received such report to fail to follow-up by performing breast examination. ... Had the primary physicians performed such a breast examination, further studies or consultation could have been undertaken when cancerous involvement was confirmed, when there was not yet any lymph node involvement, and when the clinical stage of the cancer was earlier and more amenable to less radical therapeutic intervention. It is my further opinion that the primary care physician's departures from good and accepted medical practice resulted in a significant delay in diagnosis of the Plaintiff's breast cancer and was a substantial factor in causing and/or contributing to the spread of the cancer, the increase in the size of the tumor in the Plaintiff's breast, the lymph node involvement, and that this delay in diagnosis of Plaintiff's breast cancer was a substantial factor in depriving her of more conservative and less drastic intervention, such as lumpectomy, and that the delay in diagnosis caused and/or contributed to Plaintiff's need for a modified radical mastectomy, chemotherapy, and her suffering additional illness and treatment. Such departures caused and/or contributed to Ms. DeJesus having to undergo otherwise avoidable surgical and oncological care and treatment with the accompanying adverse side effects, and deprive her of a better outcome and/or better chance for recovery and survival and thereby caused her to have a decreased life expectancy." [Emphasis Added] [*8]

The failure of a physician to properly follow and monitor a patient's condition which results in the ensuing matatastic spread of cancer may provide a basis for the jury to conclude that the physician's negligence was the proximate cause of the advance of cancer from one stage to another and the necessity for the radical surgery. (See Windisch v. Weiman 161 AD2d 483, 437; Missbaum v. Gibstein 132 AD2d 193 revd on other grounds 73 NY2d 912.

Moreover, Judge Ciparick writing the majority opinion in Nestorowich v.

Ricotta 97 NY2d 393, 740 NYS2d 668 articulated the duty of a physician.

"The prevailing standard of care governing the

conduct of medical professionals has been a fixed

part of our common law for more than a century

(see generally Pike v. Honsinger, 155 NY 201

[1898]). The Pike standard demands that a doctor

exercise 'that reasonable degree of learning and

skill that is ordinarily possessed by physicians and

surgeons in the locality where [the doctor]

practices' (id at 209). [FN3] Although malpractice

jurisprudence has evolved to accommodate

advances in medicine, the Pike standard remains the

touchstone by which a doctor's conduct is measured

and serves as the beginning point of any medical

malpractice analysis."

As evidenced by the competing medical affidavits, and given the different versions of the events, there remain questions of fact precluding the granting of summary judgment. "When a key issue turns on the credibility of opposing affiants, summary judgment should be denied. See Siegel, NY Practice, §278 (3d Ed. 1999).

Accordingly, viewing the evidence in the light most favorable to the plaintiff, (Siegel, NY Practice, §278, p.438; and §281, p. 442 (3d Ed. 1999, Morris v. Lenox Hill Hospital 232 AD2d 184, 647 NYS2d 753, aff'd 90 NY2d 953; Metcafe Cleaning Inc. v.Chemical Bank 216 AD2d 231, 628 NYS2d 700) this Court concludes that material issues of fact exist, particularly as to whether defendants Patel departed from good and acceptable practice and therefore their motion is denied.

This constitutes the decision and order of this Court. [*9]

Dated:

J.S.C.