Clermont-Lundy v Zimbalist

[*1] Clermont-Lundy v Zimbalist 2005 NY Slip Op 51979(U) [10 Misc 3d 1056(A)] Decided on October 5, 2005 Supreme Court, Kings County Rosenberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2005
Supreme Court, Kings County

Yamilee Clermont-Lundy, as Administratrix of the goods, chattels and credits which were of Morris T. Lundy, deceased, and Yamilee Clermont-Lundy, individually,, Plaintiff,

against

Eliot Howard Zimbalist, M.D., Maimonides Medical Center and New York Methodist Hospital, Defendants.



4950/03

Gerard H. Rosenberg, J.

Upon the foregoing papers, defendant Eliot Howard Zimbalist, M.D. moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's complaint as against him on the grounds that there was no physician-patient relationship between himself and the plaintiff's decedent, Morris T. Lundy and, even if such relationship existed, that Dr. Zimbalist did not deviate from accepted medical practice in his treatment of Mr. Lundy. Plaintiff Yamilee Clermont Lunch, as administratrix of the goods, chattels and credits of Morris T Lundy, deceased, and Yamilee Clermont-Lundy, individually (collectively "plaintiff"), opposes the instant motion on the ground that triable issues of fact exist which preclude the grant of summary judgment to Dr. Zimbalist. Defendant Maimonides Medical Center (Maimonides) moves for an order, pursuant to CPLR 3212, [*2]granting summary judgment dismissing plaintiff's complaint as against it on the grounds that neither the employees of Maimonides nor Maimonides itself can be held liable for the treatment rendered by Dr. Zimbalist as plaintiff's private attending physician and that, in any event, the care and treatment provided by Maimonides or its employees during Mr. Lundy's admission to the hospital were within accepted standards of hospital practice. Plaintiff opposes the motion by Maimonides on the ground that said motion is untimely and Maimonides has failed to demonstrate good cause for its delay in filing same. [FN1]

This medical malpractice action stems from the alleged failure of Dr. Zimbalist and Maimonides to diagnose Mr. Lundy with colon cancer which eventually metastasized to his liver. In 1995, Mr. Lundy sought treatment for various gastrointestinal complaints with Dr. Gary Gettenberg, a gastroenterologist. Dr. Gettenberg diagnosed Mr. Lundy with Crohn's disease, an illness which causes chronic gastrointestinal inflammation and treated him for that aliment. Dr. Gettenberg performed a colonoscopy on Mr. Lundy in 1995 and placed him on a low fiber diet. Mr. Lundy had an umbilical hernia repair performed on him in 1998 and was hospitalized with gastrointestinal complaints in 1999. During that hospitalization, another colonoscopy was performed on Mr. Lundy but was not completed due to an intestinal blockage.

In 2000, Dr. Gettenberg ordered a CT scan of Mr. Lundy's abdomen. The results of the CT scan were as follows:

1. The patient is status post ventral abdominal hernia repair. There is a roughly 3 cm. In maximum width with ill defined region of minimally enhancing soft tissue density at the site of the prior surgery, which likely represents post operative keloid or desmoid/fibromatosis.

2. There is a thickening of the terminal ileum and cecum with infiltration of the adjacent mesenteric fat, consistent with the small bowel findings suggestive of Crohn's disease.

With regard to Mr. Lundy's liver, the CT scan revealed "a roughly 1 cm homogenously hypoattenuating lesion noted in the anterior segment of the right lobe of the liver . . . most consistent with an incidental hepatic cyst."

In 2000, Mr. Lundy was referred by Dr. Gettenberg to Dr. Zimbalist, and he first visited Dr. Zimbalist on August 8, 2000. Dr. Zimbalist testified at his deposition that Dr. Gettenberg referred Mr. Lundy to him so that he could evaluate Mr. Lundy for participation in the clinical trial of Interleukin 11, a drug being tested as a treatment for Crohn's disease. Dr. Zimbalist examined Mr. Lundy and made findings consistent with Mr. Lundy's prior diagnosis of Crohn's disease. Dr. Zimbalist testified that he advised Mr. Lundy that surgery [*3]would be the best treatment for his illness. Allegedly, Mr. Lundy stated that he did not want surgery but instead preferred to exhaust all other medicinal therapies first. Dr. Zimbalist testified that he recommended surgery to Mr. Lundy on numerous occasions, but that Mr. Lundy did not want to have the surgery performed.

On August 23, 2000, Mr. Lundy was admitted to Maimonides, for gastrointestinal complaints by Dr. Wolfson, to whom he had been referred by his primary care physician. While in the hospital, Mr. Lundy refused to have another colonoscopy performed. He was discharged on August 25, 2000.

After being approved for participation in the clinical trial of Interleukin 11, Mr. Lundy visited Dr. Zimbalist's office on October 12, 2000 to commence taking the drug. The trial was scheduled to last for 36 weeks and Dr. Zimbalist was to see Mr. Lundy every other week for the first 12 weeks, and then once a month for the remainder of the trial. The purpose of such visits, according to Dr. Zimbalist was to "conduct . . . evaluations as to symptoms [and] quality of life . . . [t]o see if the drug was working." Dr. Zimbalist proceeded to monitor Mr. Lundy according to the drug trial protocol. The drug trial, however, was a so-called "blind trial," so Dr. Zimbalist did not know if Mr. Lundy actually was to receive the drug or would be taking a placebo for the duration of the trial.

On or about March 11, 2001, Mr. Lundy was admitted to Maimonides for gastrointestinal complaints, including abdominal pain. Dr. Zimbalist is affiliated with Maimonides. Although Mr. Lundy was admitted through the emergency room, Dr. Zimbalist did not recall if Mr. Lundy contacted him prior to arriving at Maimonides or if he went to the hospital on his own and Dr. Zimbalist was subsequently notified. When asked at his deposition how he came to be Mr. Lundy's attending physician during that admission, Dr. Zimbalist replied that "Obviously, if he called me, and I said 'You should go over there,' then when he gets there, he's going to tell them that I'm his physician."

During Mr. Lundy's hospital stay, Dr. Zimbalist, as his attending physician, ordered a CT scan of Mr. Lundy's abdomen. The CT scan revealed "dilation of loops of small bowel with questionable area of transition in the distal ileum suggestive of obstruction. There is evidence of diverticulitis in the left colon." Mr. Lundy's liver "show[ed] multiple low-attenuation densities largest seen on the right lobe [and] these findings could represent hemangiomas however, other disease processes such as metastasis cannot be excluded." While at Maimonides, Mr. Lundy was treated with NG tube section, MPO, IV fluids and Prednisone, a steroid. He was released on or about March 16, 2001 when his symptoms improved.

Subsequent to his discharge, Mr. Lundy visited Dr. Zimbalist at his office. Dr. Zimbalist described the purpose of the visit as a "follow-up" with regard to both the clinical trial and his recent hospitalization. Thereafter, Mr. Lundy was withdrawn from the drug trial because he had been hospitalized. After learning that he had been withdrawn, Mr. Lundy visited Dr. Zimbalist on April 24, 2001. During that visit, Dr. Zimbalist told him that he needed surgery and had contacted a doctor at Mount Sinai Hospital with regard to setting up [*4]an appointment for Mr. Lundy. After the April 24 appointment , Dr. Zimbalist did not see Mr. Lundy again. When asked if he had ever considered turning Mr. Lundy away and not evaluating him for the clinical trial, Dr. Zimbalist replied that Mr. Lundy had been "hunting for treatments" and "[m]y purpose [was] to treat him and try to get him better from his symptoms."

On August 6, 2001, Mr. Lundy was diagnosed with metastatic cancer and died on August 15, 2001. The cause of death was "colon carcinoma with metastasis to the liver."

Dr. Zimbalist's Motion for Summary Judgment

Summary judgment should only be granted where there are no triable issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). In order to prevail on a motion for summary judgment, the movant must present a prima facie case demonstrating entitlement to judgment as a matter of law (Prince v Di Benedetto, 189 AD2d 757, 759 [1993]; Zarr v Piccio, 180 AD2d 734, 735 [1992]). Once the movant has established its prima facie case, the party opposing a motion for summary judgment bears the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Romano v St. Vincent's Medical Center of Richmond, 178 AD2d 467, 470 [1991]; Tessier v New York City Health & Hospitals Corp., 177 AD2d 626 [1991]). The evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion (Goldstein v Monroe County, 77 AD2d 232, 236 [1980]).

"The essential elements of a medical malpractice claim are a departure from good and accepted medical practice and evidence that such departure was a proximate cause of the plaintiff's injury" (Wiliams v Sahay, 12 AD3d 366, 368 [2004]; see also Taylor v Nyack Hospital, 18 AD3d 557 [2005]; Cahill v County of Westchester, 226 AD2d 571, 572 [1996]). There is no basis for liability for medical malpractice, however, "unless the injured party can establish that he or she had a physician-patient relationship with the medical provider, as there is no legal duty in the absence of such a relationship" (Garofalo v State of New York, 17 AD3d 1109, 1110 [2005]). A physician-patient relationship "is created when the professional services of a physician are rendered to and accepted by another person for the purposes of medical or surgical treatment" (Lee v City of New York, 162 AD2d 34, 36 [1990]). A physician-patient relationship may also arise where a physician advises a patient with regard to a course of treatment (Campbell v Haber, 274 AD2d 946, 946 [2000]). "Whether the physician's giving of advice furnishes a sufficient basis upon which to conclude that an implied physician-patient relationship had arisen is ordinarily a question of fact for the jury" (Bienz v Central Suffolk Hosp., 163 AD2d 269, 270 [1990]; see also Cogswell v Chapman, 249 AD2d 865, 866 [1998]).

In the instant matter, triable issues of fact exist with regard to both the alleged physician-patient between Dr. Zimbalist and Mr. Lundy and Dr. Zimbalist's alleged treatment of Mr. Lundy which preclude the grant of summary judgment to Dr. Zimbalist. In support [*5]of his motion for summary judgment, Dr. Zimbalist submits an affidavit from Sanford R. Goldberg, M.D., a gastroenterologist. Pursuant to his review of the summons and complaint, bill of particulars, the deposition testimony of both plaintiff and Dr. Zimbalist and the relevant medical records of Mr. Lundy, Dr. Goldberg formed the following opinion with regard to Dr. Zimbalist's liability:

"[I]t is my opinion that no allegation of medical malpractice can be levied against Dr. Zimbalist. For the time that the [decedent] was a participant in the clinical trial of Interleukin 11, Dr. Zimbalist was solely monitoring the drug's effect on Crohn's disease. Dr. Zimbalist was not the decedent's treating gastroenterologist. The decedent was not seeking treatment from Dr. Zimbalist as a gastroenterologist. The decedent was not seeking a gastroenterology second opinion separate and apart form those opinions of his treating gastroenterologists. The decedent was not seeking a rediagnosis of his Crohn's disease. Rather the decedent was seeking the Interleukin through the clinical trial for his Crohn's disease. Moreover, as the administration of Interleukin 11 was through a blind clinical trial, the decedent may never have received the medication. As such, no patient/physician relationship was ever created between Dr. Zimbalist and the decedent. In the absence of such a relationship, allegations of medical malpractice are misplaced.

"Additionally, once the decedent was participating in the clinical trial for Interleukin 11, Dr. Zimbalist kept good records, performed numerous blood tests, and followed the decedent quite closely. This was an appropriate course of action in monitoring the effectiveness of Interleukin 11 on Crohn's disease, and fully comported with accepted standards of care as they existed in this medical community.

"Even assuming a patient/physician relationship did exist, Dr. Zimbalist performed as mandated by the standard of care. There was no reason for Dr. Zimbalist to suspect that the decedent had metastatic cancer as the decedent's liver tests were normal, lesions were not indicated, he did not experience weight loss and there was no notable change in his overall condition. All diagnostic tests were consistent with Crohn's disease and not metastatic cancer. Dr. Zimbalist's actions and/or omissions fully comported with accepted standards of care as they existed in this medical community, even assuming a patient/physician relationship. The standard of care did not mandate any further actions other than what he did. Here, Dr. Zimbalist's motion is supported by expert medical evidence establishing his prima facie entitlement to judgment as a matter of law. Upon his review of the relevant medical evidence, Dr. Goldberg concluded that, given the nature of the clinical drug trial in which Mr. Lundy was a participant, Dr. Zimbalist was not engaged in a physician-patient relationship with Mr. Lundy during his monitoring of Mr. Lundy's response to Interleukin 11. He also determined that even if such a relationship existed, Dr. Zimbalist did not deviate from the medically accepted standard of care in his treatment of Mr. Lundy's condition in [*6]light of Mr. Lundy's prior, and repeated, diagnoses of Crohn's disease by different physicians, his ongoing symptoms which were consistent with such diagnosis and the lack of evidence of liver cancer. Accordingly, as Dr. Zimbalist has demonstrated his prima facie case, plaintiff must raise a triable issue of fact in order to defeat the instant summary judgment motion.

As an initial matter, an issue of fact exists concerning the relationship between Dr. Zimbalist and Mr. Lundy during the course of the clinical trial. Although Mr. Lundy was diagnosed with Crohn's disease prior to his referral to Dr. Zimbalist, said referral was made for the purpose of evaluating Mr. Lundy for, and potentially enrolling him in, a clinical study of Interleukin 11, a drug being evaluated for the treatment of Crohn's disease. During the course of the trial, Dr. Zimbalist closely monitored Mr. Lundy's range of symptoms, examined him and took blood work repeatedly. Moreover, he was the attending physician for Mr. Lundy during his admission to Maimonides in March 2001, a hospital with which Dr. Zimbalist was affiliated, oversaw his treatment there, ordered diagnostic tests and saw him at his office as a follow-up to the hospitalization.

To the extent that Dr. Zimbalist relies on Payette v Rockefeller (220 AD2d 69 [1996]), such reliance is misplaced. In Payette, the court found that a university could not be held liable for medical malpractice for injuries allegedly sustained by plaintiff as the result of her participation in a clinical trial, even where university doctors had monitored her during said trial, because plaintiff "never sought any diagnosis or treatment of a medical condition from [the university]" and "[w]hatever procedures she underwent, she did so strictly as a volunteer in a diet study program and not as a patient with a medical condition" (id. at 72-73). Stated differently, the university was not liable for medical malpractice because "plaintiff did not consult [the university] as a health care provider . . .[n]or did she undergo, as part of any medical treatment, the procedures complained of" (id. at 72).

In the instant case, however, Mr. Lundy suffered from Crohn's disease, a medical condition, and was referred to Dr. Zimbalist, a gastroenterologist, by his primary care physician. Although the purpose of the referral was to evaluate Mr. Lundy for enrolment in a clinical trial, the trial was being conducted to test the efficacy of a new drug for the treatment of Crohn's disease, the very condition from which plaintiff suffered. The medical examination and monitoring conducted by Dr. Zimbalist during the trial was done in order to assess the drug's effectiveness, or lack thereof, in alleviating plaintiff's symptoms. Accordingly, Payette is inapposite and does not support Dr. Zimbalist's contention that, as a matter of law, no physician-patient relationship existed between himself and Mr. Lundy.

Moreover, Dr. Zimbalist advised plaintiff with regard to the most effective course of treatment for his Crohn's disease. Dr. Zimbalist testified that he recommended surgery to Mr. Lundy numerous times throughout the clinical trial and even arranged for him to have an appointment with a surgeon at Mt. Sinai when Mr. Lundy was required to withdraw form the clinical trial. When questioned as to whether he ever considered turning Mr. Lundy away from the clinical trial, given his conclusion that surgery was the best treatment, Dr. Zimbalist [*7]stated that Mr. Lundy had been "hunting for treatments" and that "my purpose was to treat him and try to get him better from his symptoms. I can recommend best forms of treatment. I can recommend alternatives. It's up to him to decide what he wants to do with his body and his life." Such questions of fact concerning the existence of a physician-patient relationship, or at the very least an implied physician-patient relationship based upon Dr. Zimbalist's advice to Mr. Lundy regarding the most appropriate course of treatment for his ailment, preclude the grant of summary judgment to Dr. Zimbalist.

With regard to Dr. Zimbalist's alleged deviation from accepted medical practice in his treatment of Mr. Lundy, questions of fact also exist which preclude summary judgment. Based upon his review of the relevant medical evidence, plaintiff's expert, Dr. William Bisordi, a gastroenterologist, opined that Dr. Zimbalist departed from acceptable medical standards in his treatment of Mr. Lundy by failing to order follow-up tests or to further research whether Mr. Lundy's symptoms were solely attributable to Crohn's disease even though Dr. Zimbalist had obtained Mr. Lundy's medical records, including the 2000 CT Scan showing a lesion on his liver, and had also monitored his chronic symptoms. Dr. Bisordi also states that Dr. Zimbalist deviated from acceptable medical practice by failing to follow-up on the CT scan he ordered of plaintiff's abdomen in March 2001 which showed multiple lesions on Mr. Lundy's liver. Due to these alleged departures from acceptable medical practice. Dr. Bisordi further states that "if [Dr. Zimbalist] would have properly diagnosed [Mr. Lundy], it was [Dr. Zimbalist's] duty to provide chemotherapy and radiation therapy or to refer him to a specialist to try to control [Mr. Lundy's] disease." Accordingly, it is Dr. Bisordi's opinion that Dr. Zimbalist's "failure of diagnosing metastatic liver cancer, within a reasonable degree of medical certainty, deviated from good and acceptable medical standards and was the proximate and direct cause of [Mr. Lundy's] death on August 15, 2001."

Given the expert medical testimony proffered, as well as the medical evidence demonstrating the continuous and severe nature of Mr. Lundy's symptoms while he was monitored by Dr. Zimbalist and the existence of two CT scans showing liver lesions, one of which was ordered by Dr. Zimbalist and specifically states that "disease processes such as metastasis cannot be excluded," the court finds that plaintiff has proffered evidence sufficient to raise a triable issues of fact with regard to Dr. Zimbalist's alleged deviation from acceptable medical practices and whether such alleged deviation was causally related to Mr. Lundy's death. Accordingly, Dr. Zimbalist's motion for summary judgment must be denied.

Maimonides' Cross Motion for Summary Judgment

Defendant Maimonides Medical Center (Maimonides) moves for an order, pursuant to CPLR 3212, on the grounds that neither the employees of Maimonides nor Maimonides itself can be held liable for the treatment rendered by Dr. Zimbalist as plaintiff's private attending physician and that, in any event, the care and treatment provided by Maimonides or its employees during Mr. Lundy's admission to the hospital were within accepted standards of hospital practices. [*8]

Pursuant to court order, the original time for defendants in this action to file a motion for summary judgment was 60 days from December 10, 2004. A subsequent court order extended the time for filing of summary judgment motions to March 11, 2005. On March 18, 2005, 7 days after the expiration of the court imposed filing deadline, Maimonides served a cross motion for summary judgment. Maimonides claims that on March 17, 2005, it sought leave of the court to file a late motion for summary judgment, which was granted. It explains that its motion was not filed timely because Dr. Zimbalist did not serve his motion for summary judgment until March 10, 2005, and it did not arrive at Maimonides' counsel's office until March 16, 2005. For some reason, the cross motion was rejected by the motion support office and Maimonides re-filed an identical motion on May 10, 2005, now denominated as a motion for summary judgment, as opposed to a cross motion, and said motion is the one presently before the court.

Maimonides' motion must be denied as untimely. In the recent case Brill v City of New York (2 NY3d 648, 652 [2004]), the Court of Appeals held that "'good cause' in CPLR 3212(a) requires a showing of good cause for the delay in making the motion a satisfactory explanation for the untimeliness rather than simply permitting meritorious, nonprejudicial filings, however tardy. [Accordingly,] [n]o excuse at all, or a perfunctory excuse, cannot be 'good cause.'" Such requirement applies whether the moving party is untimely pursuant to either a statutory time frame or one that has been ordered by the court (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725, 726 [2004]; see also Balcerzak v DNA Contracting, LLC, 2005 NY Slip Op. 25322 [2005]; Buckner v City of New York, 2005 NY Slip Op. 25320 [2005]). "In the absence of a 'good cause' showing, a court has no discretion to entertain even a meritorious, nonprejudicial summary judgment motion" (Hesse v Rockland County Legislature, 18 AD3d 614 [2005]).

Here, it is undisputed that Maimonides served and filed its motion for summary judgment 7 days after the court-ordered extension of time to file summary judgment motions had expired. Although Maimonides claims that it obtained leave of the court to make such late filing, no order extending the time to file was issued by the court; rather, the court informed Maimonides that it should address the issue of the late filing in its motion papers. Moreover, Maimonides has not demonstrated that it had good cause for its delay. The only excuse proffered is that because it did not receive Dr. Zimbalist's motion until March 16, 2005, it was unable to file its own motion until March 18, 2005. However, to the extent that Maimonides is attempting to "piggyback" on Dr. Zimbalist's timely motion for summary judgment, the court notes that Maimonides motion is not denominated as a cross motion and cannot be considered as such given that it seeks relief against plaintiff, who is a non-moving party (see Gaines v Shell-Mar Foods, Inc., 2005 Slip Op. 06771 [2005]). Accordingly, as Maimonides has failed to demonstrate good cause for its untimely filing, the court is constrained to deny its motion for summary judgment without consideration of the merits of such motion (see Dettmann v Page, 18 AD3d 422 [2005]; Thompson v New York City Board of Education, 10 AD3d 650, 651 [2004]). [*9]

As a result, Dr. Zimbalist's motion for summary judgment is denied. Maimonides' motion for summary judgment is also denied.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.

Footnotes

Footnote 1: The action has been discontinued against defendants Sam Weissman, M.D., Moshe Shein, M.D. and New York Methodist Hospital.