Flanagan v Cho

[*1] Flanagan v Cho 2006 NY Slip Op 52160(U) [13 Misc 3d 1238(A)] Decided on November 8, 2006 Supreme Court, Westchester County Smith, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 24, 2006; it will not be published in the printed Official Reports.

Decided on November 8, 2006
Supreme Court, Westchester County

Susan Flanagan a/k/a Sue Morrow Flanagan, Plaintiff,

against

Richard Cho, M.D., Richard Klein, M.D., John T. Rigney, M.D., Robert DiGiacinto, M.D., and The Katonah Medical Group, Defendants.



8001/03



O'Connor, McGuinness, Conte, Doyle & Oleson, Esqs.

Attys. For Defts. DiGiacinto , Katonah Medical Group

One Barker Avenue, Suite 675

White Plains, New York 10601

Law Offices of Grace & Grace

Attys. For Pltf.

360 Underhill Road

Yorktown Heights, New York 10598

Voute, Lohrfink, Magro & Collins, LLP

Attys. For Defts. Cho, Klein

170 Hamilton Avenue

White Plains, New York 10601

Schiavetti, Corgan, Soscia, Diedwards and Nicholson, LLP

Attys. For Deft. Rigney

575 Eighth Avenue, 14th Fl.

New York, New York 10018

Mary H. Smith, J.

This is an action to recover damages based upon defendants' alleged medical malpractice in failing to timely diagnose plaintiff's breast cancer. Defendant Klein presently seeks permission to file a late summary judgment motion, which lateness said defendant argues was engendered solely by plaintiff's failure to have complied with his four separate requests for a discontinuance of this action against him, made at various stages throughout the discovery process when it became apparent that defendant Klein never had treated plaintiff. Upon granting permission to late file his summary judgment motion, defendant Klein further seeks summary judgment dismissing the complaint, arguing that the unrefuted evidence demonstrates that he in fact never had treated plaintiff. Finally, said defendant seeks an award of costs and sanctions against plaintiff based upon her "needlessly and frivolously prolonging the litigation."

Plaintiff does not substantively oppose this motion, and offers no reason as to why she continuously had refused to stipulate to discontinue this action.

Defendant Klein's motion is granted to the extent that, upon good cause demonstrated, his summary judgment motion is deemed timely and upon consideration of the merits of same, summary judgment is granted dismissing this action as against him.

Defendant Klein's motion is further granted to the extent that, within twenty (20) days after service of this Order with Notice of Entry, plaintiff shall serve, on notice, an affidavit supported by a memorandum of law, addressing why costs and/or sanctions pursuant to 22 N.Y.C.R.R. 130-1.1 should not be imposed upon her and/or her attorney based upon her unreasonable refusal to voluntarily have stipulated to discontinue this action against defendant Klein when evidence established that he never had treated plaintiff.

Defendant DiGiacinto separately is moving for summary judgment dismissing the complaint. He had been plaintiff's gynecologist at the Katonah Medical Group from 1988 until 2002. Plaintiff had a family history of breast cancer and, commencing in 1998, she underwent annual mammograms. Her medical records establish that in March, 2001, plaintiff's annual mammogram was reported to defendant DiGiacinto as being normal. In August, 2001, plaintiff was seen by defendant DiGiacinto for her annual examination. Plaintiff, at that time, had not reported any masses to said defendant, and he did not detect any in plaintiff's left breast upon examination. Pursuant to plaintiff's annual mammogram in April, 2002, which mammogram had been ordered by defendant DiGiacinto, a suspicious mass was detected in plaintiff's left breast; this mass subsequently was diagnosed as being cancerous.

Plaintiff has commenced this action, alleging as against defendant DiGiacinto that he had found suspicious lesions in [*2]plaintiff's breasts in August, 2001, but had failed to follow up on same, that he had failed to timely diagnose a left breast mass as being cancerous, had failed to make the proper referrals, had disregarded plaintiff's risk factors for developing cancer, had failed to perform timely follow-up breast examinations, had failed to schedule plaintiff for a follow-up examination, had failed to recognize the limitations of ultrasound and mammography to rule out breast cancer and had failed to make a referral to a breast surgeon.

Defendant DiGiacinto presently is moving for summary judgment dismissing the complaint, arguing that if plaintiff had reported something unusual about her left breast in August, 2001, or if he, upon examination, had discovered anything unusual, he would have made a chart notation and referred her to a breast specialist for appropriate care, as his past course of treatment of plaintiff establishes had been his practice. According to defendant DiGiacinto, there is nothing in plaintiff's Katonah Medical Group records indicating anything suspicious with respect to plaintiff's left breast in August, 2001, and he notes that during the August, 2001, examination plaintiff had not informed him that she had had a palpable mass, or that she had seen Dr. Cho, or that she had had an ultrasound.

In support of his motion, defendant DiGiacinto has submitted an expert affidavit from Board-certified Obstetrician/Gynecologist Frederick Feiner. Dr. Feiner has reviewed the pleadings, the deposition transcripts and plaintiff's medical records. In his supporting affidavit, he states with a reasonable degree of medical certainty his opinion that the gynecological care rendered plaintiff by defendant DiGiacinto was proper and appropriate in all respects and that he had not departed in any way from good and accepted medical practice. Further, it is his opinion that plaintiff's claimed injuries were not related in any way to any deviations from the standard of gynecological care by defendant DiGiacinto. Reviewing plaintiff's past mammogram reports, Dr. Feiner notes that while plaintiff had "dense breasts with fibrocystic changes," there never was any finding suspicious for cancer. When plaintiff had complained to defendant DiGiacinto in 1991 about feeling a lump in her left breast, she had been immediately referred by him to a surgeon for consultation. The ensuing biopsy was negative. Again, upon plaintiff's complaint in 1996 about a right breast lump, she was immediately referred by defendant DiGiacinto to a surgeon for consultation. The surgeon had found nothing suspicious. When plaintiff had complained to defendant DiGiacinto in October, 2000, about a discharge from her right nipple, defendant DiGiacinto again had referred her to a breast specialist, who found nothing suspicious. Based upon the foregoing, Dr. Feiner states that plaintiff's records establish "excellent attention to the condition of her breasts - there were [*3]regular examinations, regular mammograms and any time anything out of the ordinary occurred, Dr. DiGiacinto requested an appropriate consultation."

With respect to plaintiff's August 21, 2001, annual examination by defendant DiGiacinto, Dr. Feiner notes that plaintiff had made no complaints to him about her breasts; she had not reported any palpable mass in her left breast between October, 2000 and August, 2001. Moreover, defendant DiGiacinto's own examination at that time had revealed only "fibrocystic changes with cysts felt in each breast." According to Dr. Feiner, defendant DiGiacinto's examination at that time was proper and in accordance with good and accepted medical practice, as was his advice reminding plaintiff to continue to have annual mammograms. "With a normal mammogram a few months earlier, and a breast examination which was not suspicious for a malignancy, there was no reason for Dr. DiGiacinto to do anything other than what he did," according to Dr. Feiner.

Dr. Feiner also observes that defendant DiGiacinto had not examined plaintiff between September 5, 2001 and April 8, 2002, the latter of which is the date plaintiff's cancer was discovered. Based upon all of the foregoing, Dr. Feiner states that there were no departures of any kind on the part of defendant DiGiacinto and no basis for any claim of malpractice against him because "the injuries allegedly sustained by [plaintiff] were in no way causally related to any alleged deviation in the standards of gynecological care provided by [defendant] DiGiacinto."

Plaintiff opposes defendant DiGiacinto's summary judgment motion, arguing that he had failed to follow proper and accepted medical practices and standards in regard to his care and treatment of plaintiff in August 21, 2001, by his failing to have referred plaintiff for proper follow up. In support of her opposition, plaintiff has submitted an affidavit from her expert, a Board Certified Obstetrician and Gynecologist.

Plaintiff's expert has reviewed plaintiff's medical records and deposition testimony. He notes that in August, 2001, plaintiff had presented to defendant DiGiacinto for her annual physical examination, which in part had consisted of palpation of both breasts. At that time, he reported in plaintiff's medical records that she had "bilateral fibrocystic" breasts with "cysts felt" in each breast. According to plaintiff's expert, defendant's "palpation of a mass in August 2001 required further confirmations of their benign nature either by direct correlation with current radiological findings or biopsy," particularly given plaintiff's high risk categorization based upon her family history. According to this expert, "it is not possible for Dr. DiGiacinto to distinguish between benign cystic breast and possible malignancy by palpation alone." Plaintiff's expert opines that defendant DiGiacinto had departed from proper and accepted medical practices [*4]"in not properly following up on his clinical findings of palpable breast masses in August of 2001." It is his further "opinion that it was a departure from proper and accepted medical practices and standards to have summarily concluded that the palpable breast masses were benign cysts without confirmation by further radiological studies or biopsies." Plaintiff's expert notes that defendant DiGiacinto, in his prior treatment of plaintiff, had recognized the proper standards of care but then that he failed to continue with his "exemplary history of care in August of 2001."

In his replying affidavit, defendant DiGiacinto avers that plaintiff had failed to advise him during her August, 2001 examination that she had had a palpable breast mass in December 2000, or that she had seen defendant Cho at that time and had had an ultrasound. Further, he states that his chart documents that plaintiff, for years, was noted to have bilateral fibrocystic breasts, with cysts felt in both breasts, and that these noted observations were no different in August, 2001, then they were any other time he examined her breasts and that he felt they were negative for suspicious lesions. Defendant DiGiacinto claims that plaintiff's expert has failed to address his expert's opinion that nothing defendant DiGiacinto did or did not do was a proximate cause of plaintiff's injuries; notably, he contends that plaintiff has failed to submit any expert opinion that further tests conducted at that time would have demonstrated cancer or resulted in an earlier diagnosis of cancer.

After this Court's careful consideration of the parties' respective arguments with respect to defendant DiGiacinto's summary judgment motion and the record at bar, and upon application of the applicable principles of law, the motion dismissing this action as against him is hereby granted. Assuming without finding for the purposes of this motion only that defendant DiGiacinto had departed from the requisite standard of care in failing, in August, 2001, to have referred plaintiff for surgical consultations and/or ordered further radiological studies or biopsies on plaintiff's left breast, plaintiff's expert has failed to address defendant DiGiacinto's expert's opinion that the alleged departures were in any way causally related to plaintiff's alleged injury. Indeed, plaintiff's expert offers no opinion that any further tests done at the time of the August, 2001, examination would have demonstrated the presence of cancer, or resulted in an earlier diagnosis of cancer, or that the delay in diagnosis from August, 2001 to April, 2002, made any difference in plaintiff's ultimate outcome. Accordingly, this Court must find that defendant DiGiacinto is entitled to summary judgment dismissing the complaint. See Mosezhnik v. Berenstein, _ AD3d _, 2006 WL 3026235 (2nd Dept. 2006); Dellacona v. Dorf, 5 AD3d 625 (2nd Dept. 2004); Anderson v. Lamaute, 306 AD2d 232 (2nd Dept. 2003); Giambona v. Stein, 265 AD2d 775 (3rd Dept. 1999); cf. Allen v. General Elec. Co., 32 AD3d 1163 4th Dept. [*5]2006); Sisko v. New York Hosp., 231 AD2d 420 (1st Dept. 1996), lv. to app. den. 89 NY2d 982 (1997).

Finally, plaintiff is cross-moving for an Order pursuant to CPLR 3025, subdivision (b), permitting service of an amended summons and complaint naming defendants Klein and Cho's employer, Northern Westchester Internal Medicine, P.C., as a defendant. According to plaintiff, this amendment is permissible pursuant to the relation-back doctrine.

Defendant Cho opposes plaintiff's cross-motion seeking to amend the complaint to add Northern Westchester Internal Medicine, P.C. as a defendant, arguing that a Note of Issue was filed on June 16, 2006, certifying that all discovery was complete and that a trial date currently is scheduled for January 22, 2007. To allow the proposed amendment on the "eve of trial," which delay plaintiff has not even explained, defendant Cho argues, will substantially prejudice the defendants in that "such an addition will cause significant trouble or expense that could have been avoided had the original pleading contained what the amended one wants to add.'" Additionally, defendant Cho argues that the motion improperly is supported only by an attorney's affirmation, which does not demonstrate the merits of the proposed amendment.

It is well-settled that leave to amend or supplement pleadings should be freely granted unless the amendment sought is palpably improper or insufficient as a matter of law or unless prejudice and surprise directly results from the delay in seeking the amendment. See CPLR 3025, subd. (b); McCasky, Davies, & Assoc. v. New York City Health & Hosps. Corp., 59 NY2d 755 (1983); Bolanowski v. Trustees of Columbia University in City of New York, 21 AD3d 340 (2nd Dept. 2005); Santori v. Met Life, 11 AD3d 597 (2nd Dept. 2004); Pirrotti & Pirrotti, LLP v. Estate of Warm, 8 AD3d 545 (2nd Dept. 2004); Evans v. Kringstein, 193 AD2d 714, (2nd Dept. 1992); Padilla v. NYC Transit. Auth., 184 AD2d 760 (2nd Dept. 1992). The prejudice sufficient to defeat a proposed amendment must derive from "the omission from the original pleading of whatever it is the amended pleading wants to add - some special right lost in the interim, some change of position, or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one wanted to add." Wyso v. City of New York, 91 AD2d 661 (2nd Dept. 1992).

Here, it is unrefuted that Northern Westchester Internal Medicine, P.C. was defendant Cho's employer at the time of the alleged malpractice and that defendant Cho was working in his capacity as an employee at the time. It is solely upon this legal relationship and the applicable law of indemnification that plaintiff seeks to now add Northern Westchester Internal Medicine, P.C. as a defendant. While plaintiff's substantial lateness in seeking the proposed amendment relief is not explained, lateness, by itself, is an insufficient basis upon which to deny the relief, [*6]particularly where there is no articulated prejudice that inures to any party as a result of this late amendment. See Abrahamian v. Tak Chan, _ AD3d _, 2006 WL 3086944 (2nd Dept. 2006). Since the evidence in the record does not indicate that the amendment is palpably insufficient or patently devoid of merit, indeed there has been no substantive challenge to the requested relief, and there is no argument that any further discovery will be required which arguably would prejudice defendants, the cross-motion must be and is hereby granted. See Masterwear Corp. v. Bernard, 3 AD3d 305 (1st Dept. 2004); St. Paul Fire & Marine Ins. Co. v. Town of Hempstead, 291 AD2d 488 (2nd Dept. 2002).

Plaintiff shall serve an amended summons and complaint which omits defendants Klein and DiGiacinto within twenty (20) days after the date hereof. Named defendants shall have the statutory time in which to answer.

This action is hereby severed and Ordered continued. The parties shall appear before the undersigned at 9:30 a.m. on November 27, 2006 for a conference. This date may not be adjourned without the Court's consent. Any party's failure to appear may result in the imposition of costs and/or sanctions.

Dated: November 8, 2006

White Plains, New York

_________________________________

MARY H. SMITH

J.S.C.