Hardeman v New York City Health & Hosps. Corp.

[*1] Hardeman v New York City Health & Hosps. Corp. 2008 NY Slip Op 50241(U) [18 Misc 3d 1130(A)] Decided on February 1, 2008 Supreme Court, New York County Schlesinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2008
Supreme Court, New York County

Norma Hardeman, Plaintiff,

against

New York City Health and Hospitals Corporation, Defendant.



102127/06



Counsel for Plaintiff

Richard Goldberg

Peters, Berger, Koshel & Goldberg

26 Court Street, Ste. 203

Brooklyn, NY 11242

718-596-7800

Counsel for Defendant

Timothy J. O'Shuagnessy

McAloon & Friedman, P.C.

123 William Street

New York, NY 10038

212-732-8700

Alice Schlesinger, J.

On September 27, 2005 Norma Hardeman underwent a right modified radical mastectomy to excise a 4x3x3.5 cm cancerous mass. There were additional findings of a level 3 node with metastatic breast carcinoma in the lymph node and metastasis in 4 of 9 right axillary lymph nodes. She was at that time 53 years old.

The history of the detection of this malignancy is relevant to the motion now before me. That motion by the defendant, New York City Health and Hospitals Corporation ("HHC") is for partial summary judgment. Specifically, counsel requests an order pursuant to CPLR 3211(a)(5), dismissing all claims arising before July 20, 2005. It is defendant's position that actions or inactions by them, specifically Metropolitan Hospital, before that July date are barred by the applicable statute of limitations found in CPLR 214-a and cannot be tolled by the continuous treatment doctrine.

Ms. Hardeman, in 2004 had been a patient of Metropolitan Hospital Center for several years and had been seen at a variety of their clinics. Her primary care provider was Anne Rappaport, a Nurse Practitioner. Plaintiff had been treated for conditions including hypertension and diabetes.

In either November or December of 2004, Ms. Hardeman had a visit with Nurse Rappaport.[FN1] Although the plaintiff states she was then experiencing right sided breast pain and extreme breast sensitivity, both of which she states she reported to Rappaport, Rappaport has no memory of the details of that visit. However, she did order a mammogram on November 10, 2004. She noted only that the purpose of the visit was [*2]"follow-up monitor treatment" presumably for other health matters. In other words, nothing about breasts was noted. Rappaport explained in her deposition testimony that her practice would have been to note such complaints and that she ordered the mammogram because it was overdue.

Ms. Hardeman had last had a mammogram in August of 1998, which was negative. Rappaport had ordered other ones for her between then and November of 2004 but, because she testified she "doesn't like having mammograms," she did not appear for them.

However, she did go this time, specifically on December 10, 2004. She says she did go then, but did not go when the tests were ordered for screening purposes in November 2000, February 2002, March 2003 and April 2004, because this time she was concerned about her symptoms. It is interesting to note here that whereas in the past, the scheduling of the mammograms had been on an approximate yearly basis, this time one was scheduled in November, after she didn't appear in April, only 8 months later. This fact is arguably consistent with Ms. Hardeman's recollection that she did make complaints of pain to Nurse Rappaport despite the latter making no such notation.

After the mammogram was performed, it was read on December 15, 2004 by a radiologist employed by the Hospital, Dr. Harry Stulbach. He compared the films to the previous August 10, 1998 study and now described a 2cm x 2cm x 1 ½ cm region of tiny overlapping modules in the right breast. He recommended an additional study, a right breast ultrasound to determine if the nodules were cystic or solid. If solid, he would then recommend a biopsy to rule out or rule in a malignancy.

However, the plaintiff never learned of these results and recommendations until July 20, 2005. Why? The answer to that is not entirely clear. But it does seem apparent that it was due, at least in part, to certain glitches and/or mistakes on the part of the Metropolitan Hospital health care providers.

The system was to work as follows, at least according to Rappaport and Stulbach. Rappaport testified at her deposition that it is her understanding that after one of her patients has a mammogram, the report is dictated by the radiologist, typed up by a transcriber, and then put into her "review que" once it is finalized. But Rappaport stated that though she would check the list of her patients every day, she never saw this report for the plaintiff.

According to Stulbach, he would enter his interpretation into a computer which would prepare a report and disseminate it through the Metropolitan Hospital system. Also, a letter would be created and sent to the patient. Here a letter was sent to Ms. Hardeman indicating that the "mammography examination showed a finding that requires additional imaging studies for a complete evaluation."

The problem is that Ms. Hardeman never received this letter. It was mistakenly sent to the wrong address, to 50 East 120th Street whereas the plaintiff lived at 50 East 102nd Street. So the system failed, in the notification both to the patient and to her health care provider, Nurse Practitioner Rappaport. The latter's inability to view the report, perhaps was due to its characterization by Stulbach as a non-final mammogram. Perhaps not. More on this later.

Between the time of the December 10, 2004 exam and the July 2005 visit, the plaintiff did see Rappaport. The next documented visit was February 10, 2005, reportedly [*3]for follow-up of Ms. Hardeman's hypertension. There is nothing noted at all about the condition of her breasts or the status of the mammogram or reports of continued pain. Nor did Rappaport check the computer for a report. The notation prepared via a computer is of a full examination, and there is a section "Chest/Breasts: Normal Abdomen: Normal bowel sounds, soft, non-tender, no masses, no hepatosplenomegaly". At the November 2004 visit, the computer report did not include any such entry.

However, the plaintiff testified that she did make complaints of continued breast pain and sensitivity, but herself did not bring up the mammogram. Nor was she asked about it by Rappaport. Although hearsay, both of the plaintiff's daughters testified at depositions that their mother made continuing complaints of pain to them during this period.

The next contact Ms. Hardeman had with defendant hospital was on April 23, 2005, when she went to their emergency room complaining of pain and shortness of breath. She was admitted overnight to rule out a heart attack. Although as defense counsel points out there is no documentation of breast pain, the record does describe the chest pain pattern as "intermittent quality aching Pain Relief: rest Incus Pn: Movement Effect: interferes with physical activity, Intensity: 2 Accptbl Lul 3" and at another place. "Pt with crescendo chest pain all week, most severe this AM, not related to exertion." This might have been attributable, at least in some part, to continuing breast pain.

The next date of significance was July 20, 2005. On that morning, Ms. Hardeman made an unscheduled visit to Nurse Rappaport wherein she complained of feeling a lump in her right breast as well as right breast pain. Rappaport noted that the lump had been there for two weeks. At that visit, Rappaport was told of the December mammogram and, for the first time, according to her testimony, looked in the computer and saw the report. She then arranged a follow-up sonogram.[FN2]

The sonogram was done the same day, as the defendants realized then that time was of the essence. On the following day, Stulbach amended his original report to indicate that the overlapping nodules he had first seen on the mammogram were indeed a solid mass. Eschewing the computer, this time he called Rappaport to report this finding. It should be noted that Rappaport testified that she then asked Stulbach why she had not been notified of the earlier abnormal mammogram and the radiologist told her that "at that point the mammogram wasn't final."

On July 25, 2005, Rappaport saw the plaintiff again and made an "urgent referral" to the breast clinic. Three days later, a needle biopsy was performed. This confirmed the malignancy. On September 27, she underwent surgery for its removal.

It is on the above set of facts that defense counsel argues that all claims preceding events occurring on July 20, 2005 must be dismissed. First, they argue that the Notice of Claim is defective because the time given when the alleged negligence occurred is December 2004, consistent with plaintiff's bill of particulars, and thus defendant was not [*4]on notice that the November 10, 2004 visit is included. However, as I understand plaintiff's assertions, she is not claiming that any negligence occurred at the November visit where she allegedly complained of pain in her right breast and Nurse Practitioner Rappaport appropriately referred her for a mammogram. The negligence allegedly commenced after the examination was conducted, an abnormal report was generated and no one made sure that, the patient learned of it so that follow-up tests and treatment could be provided.

Therefore, there is nothing about the Notice of Claim which gives either false information or a false impression to the defense. Thus, there is no prejudice. The Notice of Claim is clearly not defective.

The more significant argument put forth is one based on the Court of Appeals' decision, Young v. New York City Health & Hospitals Corporation, 91 NY2d 291 (1998). In Young, the Court began its discussion with the query whether the continuous treatment doctrine applied to the facts there to toll the 90-day notice of claim in plaintiff's malpractice suit against Sydenham Clinic for its alleged failure to timely diagnose and treat plaintiff's cancerous breast condition. The Court answered "No", finding that the plaintiff's allegations "establish that she was unaware of the need for further treatment of her breast and that no course of treatment for that condition had otherwise been established during the dispositive time period, [thus] the purpose of the toll would not be served by its application here." 91 NY2d at 293.

Moving counsel suggests that the facts in Young are virtually identical to the ones here and therefore compel the same result. In Young the plaintiff, like Hardeman, had been going to a HHC clinic for treatment for other conditions, unrelated to her breasts. However, on March 29, 1990, Young, similar to what Ms. Hardeman testified to, complained of breast pain. She was examined by her physician and, similar to Ms. Hardeman, was referred to an HHC facility for a mammogram. The test was performed on April 18 and the patient was advised she would be informed of the results. The report, issued on April 25, similar to Hardeman's, reported abnormalities and recommended a biopsy. This was forwarded to the referring clinic, unlike the situation here, but the results were not shared with the patient. Young returned to Sydenham for treatment for conditions unrelated to her breast and was never informed of the results until November 17, 1990. This was followed by a confirmatory mammogram, a biopsy and a mastectomy. Her notice of claim was not filed until June 14, 1991 wherein she alleged malpractice beginning with the April 1990 failure to inform her of the abnormal results and treat accordingly.

Significantly, the IAS Court in holding that the continuous treatment doctrine had no application found that the plaintiff, who was not informed of the mammogram results during subsequent visits, had not made any complaints about her breast or inquired about her results and conceded that she believed the mammogram was negative when she was not informed of the results. 91 NY2d at 294. The lower court and the Court of Appeals reasoned that under these circumstances, neither the plaintiff, nor her physician, contemplated further treatment of the breast condition between April and November 1990.

However, that cannot be said of the circumstances here. Rather, Hardeman testified that she not only complained of pain during the November visit, necessitating the order for the mammogram, but that she continued to make complaints of breast pain when she saw Nurse Practitioner Rappaport in February. The fact that Rappaport did not note this or remember the complaint is certainly not dispositive on this issue, particularly in light [*5]of the documented omissions and mistakes already discussed.

In Shumsky v. Eisenstein, 96 NY2d 164 (2001) a leal malpractice case, the Court of Appeals was again given the opportunity to address Young and what it stood for. In doing this, they cited one of their earlier decisions in this area, McDermott v. Torre, 56 NY2d 399 (1982). The Shumsky Court pointed out that pursuant to McDermott, the continuous treatment doctrine would apply to toll the limitations period where it can be shown that the plaintiff returned to the defendant doctor seeking not only medical attention for unrelated ailments, but also to complain about continued pain related to the very condition giving rise to the malpractice claim. 96 NY2d at 170.

Furthermore, while the Young Court stated (at p. 296) that the primary focus in determining whether the continuous treatment doctrine applies must remain on the patient because the doctrine's rationale is that the patient should not have to choose between suing her doctor and continuing treatment for a problem, the Court also suggested that the doctrine would apply if both the patient and her doctor explicitly contemplated further treatment of her breast condition.

In Young, that was not shown. However, here, much like the First Department decision in Irizarry v. New York City Health and Hospitals Corporation, 268 AD2d 321 (2000), there is reason to believe that the patient's breast situation was still ongoing in the minds of both Ms. Hardeman, in her alleged continued complaints of pain, and Dr. Stulbach, who considered the mammogram not final so did not refer it contemporaneously to Nurse Rappaport, and ultimately amended the report to conform to the new findings.

In Irizarry, the patient, who later died from her breast cancer, upon earliest examination was found to have an inverted nipple of the right breast which led to a mammogram on October 31, 1989. The November 17 report then described a mass, highly suspicious of cancer. Again these findings were not communicated to the patient until August 1990. In the interim months she returned to the clinic on numerous occasions and did inquire of the results. Here Ms. Hardeman did not inquire, but the fact remains that her health care provider Nurse Rappaport, similar to Irizarry's, Dr. Gogalang, did not receive the results either.

The Irizarry Court said (at p. 323), in distinguishing the case from Young:

As this record shows, as far as the deceased was concerned, whether she needed further treatment of her breast condition was never resolved or disposed of until the mammogram's results became available to her treating physicians and could be read ... Thus a question of fact exists as to whether there was ongoing continuous treatment during the critical period from November 17, 1989 to August 21, 1990. On this record it could be concluded that the deceased remained under the care and treatment of NYCHHC's physicians while she awaited the mammography results. If that were to be determined, then plaintiff's November 26, 1990 notice of claim was timely.

That rationale, together with the First Department's holding in Venson v. Daun , 277 AD2d 53 (2000) could well apply to the circumstances here. In Venson, the decedent Sharon Davis was referred by the defendant doctor to a radiologist for a mammogram on October 12, 1989. The plan was that the report would be disclosed to the patient's doctor [*6]so that appropriate follow-up treatment could be ordered. On January 29, 1990, the defendant did contact Ms. Davis and discussed the report and referred her to a surgeon. The plaintiff was found to be covered by the continuous treatment doctrine. That is what occurred here. Ms. Hardeman was referred by Nurse Practitioner Rappaport for the mammogram in December of 2004, but Rappaport did not learn the results until July 2005, whereupon she immediately referred this plaintiff for further diagnostic and surgical care. Arguably, Ms. Hardeman was continuously treated for her breast condition from the time of the referral for the mammogram.

Since there are issues of fact, as discussed above, as to whether the Notice of Claim served on November 14, 2005 encompasses a continuing treatment commencing in December 2004, defendant's motion to dismiss and for partial summary judgment is denied. The attorneys are directed to appear in Room 222 for a pre-trial conference on Wednesday, April 9, 2008 at 10:00 a.m.

This constitutes the decision and order of the Court.

Dated: February 1, 2008

_________________________

J.S.C.

Counsel for Plaintiff

Richard Goldberg

Peters, Berger, Koshel & Goldberg

26 Court Street, Ste. 203

Brooklyn, NY 11242

718-596-7800

Counsel for Defendant

Timothy J. O'Shuagnessy

McAloon & Friedman, P.C.

123 William Street

New York, NY 10038

212-732-8700 Footnotes

Footnote 1:The Metropolitan Hospital records are confusing at best and incomplete at worst. They combine different modes of entry, computer, hand, etc. It is also clear that certain mistakes and omissions occurred. These will be discussed later. Also, as to dates of particular visits, the plaintiff herself seems uncertain of these. Thus, in her mind there is confusion as to whether she saw Nurse Practitioner Rappaport in November or December 2004 and in January or February of 2005.

Footnote 2:As to when the nurse first saw the report, plaintiff's counsel points out that the "screen capture" regarding the mammogram indicates Rappaport accessed the report on June 29, 2005, about 3 weeks before Ms. Hardeman appeared for the unscheduled visit on July 20 where she reported finding the lump.