McCutcheon v Menken

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[*1] McCutcheon v Menken 2010 NY Slip Op 52373(U) [30 Misc 3d 1221(A)] Decided on December 20, 2010 Supreme Court, New York County Lobis, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 20, 2010
Supreme Court, New York County

Mynetta McCutcheon, Plaintiff,

against

Faith A. Menken, M.D., BARRY D. SHAKTMAN, M.D., WEILL CORNELL PHYSICIANS, NEW YORK PRESBYTERIAN HOSPITAL, WEILL CORNELL MEDICAL CENTER, JUNE H. KOIZUMI, M.D., CONSTANTINOS COUTSOUVELIS, C.T., LISA LAI, C.T., NYH LABORATORIES, BETH SIMON, M.D., DANIEL HORTON, M.D., UNIVERSITY MEDICAL PRACTICE ASSOCIATES, ST. LUKES-ROOSEVELT HOSPITAL, DANKO VIDOVICH and DOSHI DIAGNOSTIC IMAGING SERVICES, P.C., Defendants.



109763/2009



Attorneys for Plaintiff:

Ebanks & Sattler,

20 Vesey Street, Suite 503

New York, NY 10007

Attorneys for moving defendants:

McAloon & Friedman (Doshi Diagnostic Imaging Services PC)

123 William Street, 25th Floor

New York, NY 10038-3804

Thorn, Gershon, Tymann, & Bonanni LLP (Danko Vidovich)

5 Wembley Court, New Karner Road

PO Box 15054

Albany, New York 12212-5054

Joan B. Lobis, J.



Defendants Doshi Diagnostic Imaging Services, P.C., ("Doshi") and Danko Vidovich, M.D., move and cross-move, respectively, pursuant to C.P.L.R. Rule 3212, for summary judgment dismissal of this matter as against them. For the reasons discussed below, the motion and cross motion are granted and the complaint is dismissed as against Doshi and Dr. Vidovich. [*2]

In this medical malpractice action, plaintiff alleges, inter alia, that Doshi and Dr. Vidovich failed to properly interpret breast radiology studies. In November 2007, defendant Faith A. Menken, M.D., referred plaintiff to Doshi for a bilateral mammogram and ultrasound of the right breast after plaintiff reported feeling a lump there. The mammogram and ultrasound were performed at Doshi on June 23, 2008, and Dr. Vidovich interpreted the studies. Dr. Vidovich found that the mammogram revealed bilaterally dense fibroglandular tissue, concluded that there was no sonographic evidence of malignancy, and recommended that plaintiff return for a screening in twelve months.

Plaintiff returned to Dr. Menken, who excised the lump on July 25, 2008. The pathology report for the excision identified an infiltrating and in situ lobular carcinoma, classical type, measuring 2.5 centimeters, without lymphovascular invasion. Because cancer was present at the margins of the excised tissue, there was concern that there was residual cancer in the breast. Eugene Nowak, M.D., a breast surgeon, referred plaintiff back to Doshi for an MRI, with and without contrast, which was performed on August 5, 2008. Eric Lubin, M.D., interpreted this study and found two suspicious masses located in plaintiff's right breast. Dr. Menken's September 2, 2008 note in plaintiff's records indicates that she recommended that plaintiff undergo a mastectomy.

A defendant moving for summary judgment in a medical malpractice action must make a prima facie showing of entitlement to judgment as a matter of law by showing "that in treating the plaintiff there was no departure from good and accepted medical practice or that any departure was not the proximate cause of the injuries alleged." Roques v. Nobel, 73 AD3d 204, 206 (1st Dep't 2010) (citations omitted) (emphasis added). To satisfy the burden, a defendant in a medical malpractice action must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars. Id. If the movant makes a prima facie showing in medical malpractice action, the plaintiff's failure to offer expert testimony will result in an order granting summary judgment. DeCintio v. Lawrence Hosp., 299 AD2d 165, 165-66 (1st Dep't 2002).

In support of its motion for summary judgment, Doshi submits an expert affirmation from Julia Smith, M.D., a board certified internist and oncologist. Dr. Smith notes that plaintiff was seen by a breast surgeon, Dr. Menken, on July 21, 2008, four weeks after the studies were interpreted at Doshi, and that the mass was excised on July 25, 2008. Dr. Smith opines that the four or five week delay was statistically negligible with respect to plaintiff's chances of successfully treating her breast cancer. Doshi's expert asserts that this delay would not affect the staging of the disease or its corresponding prognosis. Thus, Dr. Smith opines, it cannot be said that Doshi's malpractice, if any, caused plaintiff injury. Morever, Dr. Smith notes that Doshi had no role with respect to the manner in which the breast surgeon excised the mass, as the breast surgeon makes his or her own decisions as to what and where to biopsy or excise. Finally, Dr. Smith points out that Doshi is not responsible for obtaining plaintiff's consent and that no reasonable person would refuse to have the studies performed by Doshi given that the risks were minimal compared to the benefits.

Dr. Vidovich's arguments in support of his motion for summary judgment echo Doshi's [*3]arguments, and he relies on Dr. Smith's affirmation in support of his own motion. Generally, in moving for summary judgment, one defendant cannot rely on another defendant's expert affirmation in lieu of providing his own supporting expert opinion. In this case, however, Dr. Vidovich's acts are the basis for the claims against Doshi. When Dr. Vidovich read the studies performed at Doshi, he was acting within the scope of his authority and in furtherance of the business of Doshi, his employer. Accordingly, the fact that Dr. Vidovich relies on Doshi's expert opinion in support of his own motion is not fatal to his motion. See Hill v. St. Clare's Hosp., 67 NY2d 72, 79 (1986).

In opposition, plaintiff argues that Doshi and Dr. Vidovich have failed to address the issue of negligence and that they are not entitled to the drastic remedy of summary judgment. Plaintiff does not offer an expert affidavit.

Doshi and Dr. Vidovich have met their prima facie burden by demonstrating that plaintiff's injuries were not proximately caused by the alleged malpractice. Plantiff failed to rebut this showing with an expert affirmation. Plaintiff also failed to raise issues of fact with regard to the expert's opinion that a claim for lack of informed consent cannot lie against Doshi or Dr. Vidovich. Accordingly, it is hereby

ORDERED Doshi Diagnostic Imaging Services, P.C.'s and Danko Vidovich, M.D.'s respective motion and cross motion for summary judgment dismissal of this matter as against them are granted, and the complaint is dismissed against said defendants, and the Clerk is directed to enter judgment accordingly in favor of said defendants; and it is further

ORDERED that the action is severed and continued against the remaining defendants; and it is further

ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further

ORDERED that counsel for the moving parties shall serve a copy of this order with notice of entry upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158), who are directed to mark the court's records to reflect the change in the caption herein; and it is further

ORDERED that the remaining parties shall appear for their previously scheduled status conference on February 22, 2011, at 10:00 a.m.

Dated: December, 2010

____________________________

JOAN B. LOBIS, J.S.C. [*4]

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