Keil v Lefkovits

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Keil v Lefkovits 2011 NY Slip Op 33432(U) December 15, 2011 Sup Ct, NY County Docket Number: 104668/10 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNEDON I212712011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY L oa/s PRESENT: PART MOTION OAL. NO. E 74c. The following papen, numbend 1 to *sawire mod on thii motlon to/for Notlcs of MotJon/ Ordmr to Show Caul. Anmwarlng Affldavltl - Exhlbftr Replylng Affldsvftm k5 - Affldavh - Exhlblta ... ' Cross-Motion: 0 Yes No Upon the formgoing papen, It ID ordered that thlr motlon FILED ,i 162011 NE3V YORK COUNTY CLERKS OFFICE c Y i Y E Check one: 0 FINAL DISPOSITION Check If appropriate: N~D%k%%SITION DO MOT POST C SUBMIT'ORDEIV JUDO. I 0 REFERENCE 0 SETTLE ORDER/ JUDQ. [* 2] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: I A S PART 6 X -.-IY-.lmI---c------------.II-l--------------.---- JENNIFER KEIL, as Executrix of the Estate of H. B W E N KEIL &a HERBERT BRADEN KEIL, Deceased, and JENNJFER KEIL,Individually, Plaintiffs, -againstALBERT M.LEFKOVITS, M.D., THE PARK AVENUE CENTER for ADVANCED MEDICAL and COSMETIC DERMATOLOGY,MOUNT SINAI DERMATOLOOY ASSOCIATES, MICHAEL D N ,M,D., DANIEL F. ROSES, M,D., NYU HOSPITALS CENTER,NYU MEDICAL CENTER,NYU LANGONE MEDICAL CENTER, and STEWART 0. GREISMAN, M.D., Indax No. 1O4668/10 FILED DEC 16 NEW YORK COUNTY CLERK S OFFICE Motion Sequence Numbers 002,003,and 004 arc hereby consolidated for disposition. In Motion Sequence Number 002, defendant Albert M. Lcfkovits, M.D., moves, by order to show cause, for an order pursuant to C.P.L.R. Rule 3212(a), granting summaryjudgment in his favor and dismissingthe action against him, wt prejudice. In SequenceNumbers 003 and 004, Michael Diaz, ih M.D.,a i l F. Roses, M.D.,and NYU Hospitals Center m Dne a NYU Hospitals Center, NYU Medical Center, and NYU h g o n e Medical Center ( NYU ), move for similar relief. Jennifer Keil, in her individual capacity and as executrix of the estate of her late husband, H.Braden Keil &a Herbert Braden Keil, deceased, opposes the motions. This action for medical malpractice and wrongful death arises out of defendants respcctive treatment of Mr.KeIl between November 2006 and December 2008. On November 27, [* 3] 2006, Mr.Keil presented to Dr. Lefkovits, a dermatologist, with a complaint of a mole on his back that had been changing and was sensitive. Dr. Lefkovits excised the mole and had it biopsied. The biopsy of the excised tissue revealed malignant melanoma. Dr. Lefkovits refemd Mr.Keil to Dr. Roses,an oncological surgeon. Mr. Keil presented to Dr. Roses on November 30,2006. Dr. Roses recommended a wide deep excision of the tissue surrounding the area where the molt had been previously and removal of the sentinel lymph node. On December 1,2006, Mr. Keil underwent a positron emission tomography ( PET ) scan, which depicted a 5 millimeter nodule in the left lower lobe of his lungs; the physician who read the PET sc8n recommended a follow-up chest computed tomography ( CT ) scan. On December 6,2006, Dr. Roses performed the wide and deep excision of the malignant melanoma and the sentinel lymphadenectomyat NYU Hospitals Center. Hs notes i reflectthat the sentinel nodes were negative for metastatic melanoma,and that no residual melanoma was noted in the wide excision specimen. Mr.Kcil presented for two follow-up appointments with D .Roses on December 14, r 2006, and Janmy 4,2006, during which thc sutures were removed. On December 14, Dr. Roses wrote a consultation report to D .Lefkovits about the results of the December 1,2006 PET scan, r indicating that the 5 m m nodule on the left lung was of no concern but for which a follow-up CT scan would be performed. D .Roses testified at his examination before trial ( EBT ) that he also r reviewed the results of the PET scan with Mr. Keil prior to the surgery and, at each follow-up visit, reminded him of the need to have a CT scan, to continue monitoring his condition, and to come in for follow-up examinations. D .Roses notes reflect that on January 4,2007, he instructed Mr. Keil r to return in two to three weeks; howavcr this was the last date that M .Keil received treatment from r D .Roses. r -2- [* 4] Mr. Keil presented to Dr. Lefkovits twelve times between February 2007 and November 2008. At these visits, Dr. Letlcovitz would remove suspicious lesions and order biopsies. The lesions removed during this period of time were benign, although one mole was noted as changing from benign to malignant. Dr. Lcfkovits testified at his EBT that on multiple occasions, he asked Mr.Kcil t return to D .Roses for further evaluations. o r i In August 2007, Mr. Ktil asked Dr. Lefkovits to refer h m to an internist for complaints of a cough, and Dr. Lcfkovits referred him to Dr. Dim. At the first appointment on August 2,2007, M .Keil presented to D .Diaz with complaints of dizziness and dyspnea. Dr. D a r r iz ordered blood work, which was normal except for eltvated cholesterol. Dr. Diaz wanted to rule out e r Keil vcstibulitis and mitral valvc prolapse and referred Mr. Keil to a cardiologist. H instructed M . to return on an "as needed" basis. a recent outbreak D .D a next saw Mr.Keil on A p d 8,2008, with shingles and r lz of genital herpes. Dr, Diaz prescribed Lyrica for muscle pain associated wt ih shingles and blood work performed at this visit w s normal. On Scptember 5, 2008, Mr.Keil a presented wt complaints of chest and back pain. Dr. D a diagnosed chest pain syndrome and ih iz neuralgia consistent wt the shingles. Blood tests indicated elevated findings that D . Dim ih r associated wt the singles and herpes outbreaks. D .D i u again prescribed Lyrica, which reportedly ih r provided Mr. Keil with rclicf of his symptoms. On November 21,2008, Mr.Keil presented to D .D i u with congestion, cough, thick r sputum, back pain with coughing, and a sore throat. He was running arnild temperatureand reported chills, muscle spasms, and occasional crackles and wheuzing. Dr. Diaz ordered an x-ray and prescribed Levaquin for suspected bronchitis. A urine sample provided on November 24,2008, -3- [* 5] showed trace protein. On November 26,2008, Dr. Diaz presented with fatigue and headaches that had been persisting for one week, pain in his lower back and right lower rib cage, pain upon coughing, and occasional sore throat and nausea. D .Da' examination noted muscle pain and r izs clear lungs, and his notes reflect that Mr.Keil appeared well developed and well nourished. Hs i continued working diagnosis was postherpatic neuralgia and reactivation of Epstein-Barr virus, which had been previously diagnosed. Blood work was evaluated as consistent with Epstein-Barr, with a normal blood count but an elevated sedimentation rate. Liver function tests and tests for bone and kidney disease yielded normal results. On or about December 22,2008, after a phone call to Dr. Ltfkovits' office, Mr. Keil was referred to Mitchell S. Raps, M.D., Mount Sinai Medical Center ("Mount Sinai"), for at evaluation of severe pain in the right lower back and buttock radiating to his right leg. Radiological studies showed widespread metastatic disease. Physicians at Mount Sinai diagnosed Mr. Keil with Stage IV metastatic malignant melanoma that had manifested in his bone, brain, spine, liver, and lungs, although the lung nodule detected on the PET scan two y e m prior appeared to have only grown by 2 millimeters. Mr. Keil died on March 10,2009, within two and one-half months of the diagnosis. Plaintiffs allegations against Drs. Lefkovits, Roses, and D i u arc similar. Thc essential allegations arc that they were negligent in failing to perform follow-up CT scans, PET scans, complete blood work, and other tests; failing to advise Mr. Keil that he needed adjuvant cancer treatment, such aa chemotherapy or radiation therapy; failing to seek a consultation with an oncologist, an oncological surgeon, or other specialist after Dr. Roses performed the surgery on -4- [* 6] December 6,2006; and failing to diagnose the rccurrellce or spread of Mr. Kcil's cancer. Plaintiff alleges that the follow-up tests should have been performed three months after Decumbcr 1,2006, and every six months thoreher. The allegations against Dr.Roses also include a failure to inform Mr.Keil that he had a nodule in the left lower lobe of his lungs and bilateml renal cysts; failure to treat same; and failure to follow Mr. Keil as a patient and to emphasize disease prevention. Plaintiff contends that these failures deprived Mr. Keil of the chance to fight or cure his cancer, to prolong his life, andlor to hprovo the quality of his life, The allegations against NYU sound in vicarious liability. The moving defendants seek summary j u d p e n t in thoir favor and dismissal of plaintiffs claims against them. On a motion for summary judgment, a defendant in a medical malpractice action bears the initial burden of demonstrating that there w s either no departure f o a rm the standard of care, or that any such departure did not proximately cause plaintiff a alleged injury or damage. v, St. , - 87 A.D.3d 238, 245 (1st Dep't 201 1). To satisfy that burden, the defendant must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in tho bill of particulars. 8 - Y. NOM A.D.3d 73 204,206 (1st Dep't 2010). If the defendant meets this burden, to avert summary judgmont, plaintiff must demonstrate that the defendant did in fact commit malpractice and that the malpractice was the proximate cause of the plaintiffs injuries. In order to meet the required burden, the plaintiff m s submit an affidavit from a medical ut doctor attesting that the defendant departed from accepted medical practice and that the departure w s the proximate causeof the injuries a alleged. Igat 207 (internal citations omitted). -5- [* 7] Dr, Lcfkovits contends that he is entitled to summaryjudgment primarily because, as a dermatologist, he owed no duty to Mr. Keil to order a CT scan, a PET scan, or other diagnostic e studies, or to prescribe adjuvant thcrapy. H maintains that the duty to order specialized diagnostic tests or therapies was the function of the oncologist or oncological surgeon, D . Roses. Having r referred Mr. Keil to D . Roses, D . Lcfkovits avers that he was entitled to rely on Dr. Roses' t r expertise for any necessary follow-up treatment. D, t Lofkovits argues that the fact that he continued to follow Mr.Keil as his dermatologist did not create a further duty to enswe that Mr. Kcil received treatment of a specialized nature or require him to take steps outside the normal scope of a dermatologist. Additionally, D .Lefkovits maintains that his own trcatment-removing and having r biopsies performed of external skin lesions and referring Mr. Keil to D .Rosees--was within the r standard of care. H maintains lhat none of thc allegeddepartures asserted against h m substantially e i caused Mr.KeIl's injuries or death. In Dr. Lefkovits' own affidavit in support of his motion for summary judgment, he opines that the standard of care from 2006 through 2008 did not require a dermatologist, who made a timely diagnosis of melanoma and referred a patient to an oncological surgeon,to follow up with radiologic or diagnostic tests. It was his understanding that Dr.Roses would order a CT scan,since Dr. Roses' consultation lotter stated that a follow-up CT scan would be obtained and that D .Roses r would contlnue to follow Mr. Keil in the future. Further, D .Leflcovits opines that it is not the r function of a dermatologist to determine whether adjuvant therapy is warranted nor to order adjuvant therapy, as that is the appropriate function of an oncologist or oncological surgeon. He states that the standard of care for a dermatologist treating melanoma is excision and referral to an oncologist or oncological surgeon. He further opines that he did not depart f o accepted practice in failing rm -6- [* 8] to diagnose the spread of melanoma. Dr. Lefkovits states that tha guidelines set forth by the National Cancer Institute and the American Academy of Dermatology do not indicate that a dermatologist should order testing to determine whether a melanoma has metastasized to internal organs. Dr. Lefkovits opines that he acted within in the standard of care by excising the orisinal lesion and any other suspicions lesions; obtaining an immediate biopsy of the original lesion and the other suspicious lesions; referring Mr. Keil to importance of following up. D . Roses; and constantly reminding Mr.Keil of the r D .Lefkovits opines that once he referred Mr.Kcil to Dr.Roses, he r w s not required to make other referrals. Moreover, he opines that Mr.Keil never presented With a any symptoms of metastatic disease during the time he was under D .Lefkovits care. r In further support of his motion for summary judgment, Dr.Lefkovits submits an affidavit from M r A. Fialk, M.D., physician duly licensed to practice in the State of New York ak a and board certified in internal medicine, medical oncology, hematology, and hospice and palliative medicine. H sets forth that he has reviewed the pertinent records and litigation materials. D .Fialk e r opines that further studies-such as CT scans, PET scans, or blood studies-arc not indicated for asymptomatic patients, such as Mr.Keil, who have a Stage I lesion and a negative sentinel lymph node biopsy. He opines that not only are these studies unreliable and of minimal value, but that detectlon of distant metastasis is mc. D .Fialk hrthtr opines that Mr.Keil was not a candidate for r adjuvant therapy, since the sentinel lymph node biopsy w s negative; the primary lesion excised by a D .Lcfkovits was only .7 millimeters in depth; and thcrc was no ulceration. He opines that the r standard of care under the aforementioned circumstances is excision. -7- [* 9] In Dr. Fialk s opinion, had metastatic disease been diagnosed at an earlier time than December 2008, adjuvant therapy would have made no difference in the outcome because the patient would already have been Stagc 4 and incurable at that point. No effective treatments currently exist for patients with widespread, late-stage melanoma. Once melanoma metastasizes and becomes Stage 4, the response rate and low survival rate are not affected by the time of initiation of the therapy. D . Fialk opinas that the 5 millimeter nodule seen on the December 1, 2006 PET scan w s not r a metastatic disease but rather an incidental finding unrelated to the malignant melanoma, becausc the growth of that nodule by only 2 millimeters over two years rules out the possibility that it w s the a source of the ultimate metastasis. He believes that the melanoma had already seeded hematogenously (spread through the blood system) to several distant sites by the time D .Roses r performed the December 6,2006 surgery, since the sentinel node biopsy was negative, D .Fialk sets r forth that a patient wt dormant metastasis can have a tumorexcised, have no apparent symptoms ih of metastatic disease for months or years, and then develop widespread metastatic d i m e . In Dr. Fialk s opinion, removal of the original 5 millimeter nodule would not have changed Mr.Ktil s ultimate outcome or prevented the spread of the disease. Plaintiff maintains that issues of fact exist that preclude granting D . Lefkovits r summaryjudgment. She submits an affidavit from a physician (name redacted) licensed to practice medicine in the State of New Jersey and board certified in dermatology. Plaintiffs dermatology expert opines, based on a review of the relevant materials, that since Dr. Lcfkovits knew that Dr. Roses recommended a follow-up CT scan and since he removed a lesion that was changing from benign to malignant, D .Lcfkovits departed from accepted dermatological practice by failing to write r an order that Mr.Keil have a CT scan. The dermatology expert opines that D .Lefkovits should r -8- [* 10] have ordered the CT scan when blr. Keil first rcturned to him after the December 2006 surgery, and at every subscquent visit rhcreafter. The espert opines that when a physician is aware that l ollow-up tests are nceded, it is thnt physician s obligation to ordcr the test or request that mother physician ordcr the test. Plnintil l s dermatology cxpert nolcs thut ~1 derrnntologisl has the authority to will: prescriptions and orders for thcir patients that include diugnoslic radiology. Under the circumstances, plaintiffs cxpert opines that Dr. I,cRknvits was thc main physician in charge of the trcatment of Mr. KeiI s mclanonia, and was rcspoiisible for cnsuriiig lhat n lbllow-up CT scan IYUS ordcrod. Thc expert opincs that n follow-up CT scnn could liave revealed the spread of melanoma carlier, giving Mr. Keil a hetter chancc to fight the cancer. Sufficient questions of fact exist as to preclude granting siimmury judgment to Dr. Lcfknvits. Whilc thc existencc of a duty i s a question of law, it owed i l is undisputed that Dr. Lefkovits duty 10 Mr. Keil with respcct to lhcir physician-patient rclationship. [A] doctor who nclunlly treats a patient has a duty of care ~ o w a r d pntient. that 39 A.D.3d 303, 307 { 1st Dcp t 2007). Ilallas-Stenhcnscm v. w a i s w , a M c N d h v, (=jtv of Ncw yQrk, 122 N.Y .2d 227,232 (2005). Dr. Lelkovits argument that he owed no duty lo Mr. Keil to order il follow-up CT scan addresscs the nature and cstcnt of Dr. Lcikovits duty, not whether a duty existed in the first place. In conlrast to cascs wlicrc physicians rcfcr a patient to a spccialisl nnd then stop treating that pnticnl, here? Dr. 1,etkovits continued to trcat Mr. Kcil and testified n number oftimes during his EBT that he was aware thnt, while Dr. Roses rcconiiiieiidcd follow-up appointments and n follow-up C l scan. his paticnt had not gonc back to Dr. Roses. ? he two exports prcsent differing opinions ns to thc nuturc and extcnt of Dr. LefkovitsR duty towards Mr. Kcil with respcct to follow-up care. Further, the expcrts offer opposing opinions as to \diether Mr. Kcil presented with symptoms of metaslatic -9- [* 11] cmcer and whcthcr the standard of care would have required Dr. Lefkovits to order Mr. Kcil radiological studies. Additionally, Dr. Fialk failed to explain, by referring to Mr. Keil s records or medical literature, his conclusion that a diagnosis of metastatic cancer, prior to December 2008, would have been hdle because the patient would have already been at Stage IV, for which no treatment is available. Bascd on the aforementioned unresolved issues of fact, summaryjudgment r s to D .Lcfkovits i denied. D .Dim argues that he is entitled to summaryjudgment, on the grounds that he did r not dupart from the standard of care in treating Mr. Keil; that he never undertook to treat Mr. Keil for melanoma or cancer; and that his care did not proximately cauae Mr. Keil s alleged injuries. He r submits his own affirmation in support of his summaryjudgment motion. D .Dim opines that the standard ofcare does not require a physician. who treated his patient in the manner that D .D i u did, r to order follow-up CT s c w . chest radiographs, PET scans, or the other therapies that plaintiff alleges D .Dim failed to perform. He maintains that there is no merit to plaintiffs contention that r he inappropriately failed to order certain tests; failed to diagnose Mr.Keil s spreading cancer; or failed to advise M .Keil that he needed agjuvant therapy. Dr. Dim statcs that at no point during his r carc of Mr. Keil were any of these issues indicated. Dr. D a states that he agrees wt Dr. Fialk s iz ih opinion that had Mr.Keil s metastatic disease k e n diagnosed prior to December 2008, adjuvant therapy would have made no difference In MI. Keil s outcome because he kould have already been Stage IV and incurable at that point. H opines that the standard of care in 2007 and 2008 did not e require an internist who sees a patient after a diagnosis of melanoma, with a history of nagativc lymph nodes, and under the care of a dermatologist and oncological surgeon. to determine whether -10- [* 12] diagnostic testing was warranted. D .Diaz opines that there was never an indication for him to r undertake such during the coursc of his treatment of Mr. Keil. In opposition to Dr. D a opinion that his treatment ofMr.Keil did not depart from izs the standard of care, plaintiff submits an affidavit f o a physician (name redacted) licensed to rm practice medicine in the State of New York and board certified in internal medicine and infectious disease. Plaintiffs internal medicine expert sets forth that he/she has reviewed the pertinent records and litigation materials. Having reviewed Dr. Diaz s deposition transcript, plaintiffs internal iz medicine expert opines that Dr. D a never had the reoccurrence of melanoma in his differential diagnosis. The expert opines that when Mr, Keil s tests results were normal at his first visit with Dr. D a ,Dr. D a should have placed melanoma on the differential diagnosis, and his failure to do so iz iz departed f o good and accepted practice. Plaintiffs internal medicine expert sets forth that the rm standard of care during Dr. Diaz s treatment of Mr.Keil was to request, obtain, and review medical records from a melanoma patient s other treating physicians, and opines that Dr. D a failure to izs do so departed from good and accepted practice. The expert opines that D .Dhz was treating Mr. r Keil without having all of the necessary data, and that this prevented an earlier diagnosis of the reoccurrence of melanoma. The expert maintains that D .D a should have ordered a scan of Mr. r iz Keil at each visit. Further, the expert maintains that when Mr.Keil presented with shingles, both Drs. D i u and Lefkovits should have been concerned, as shingles is a marker for 8 significantly weakened immune system, often heralding or signaling cancer, AIDS,or another immunodeficiency disorders. The expert opines that h a physicians failure to order imaging studies in the face of Mr. Keil s presentation with shingles constituted a departure f o good and accepted medical practice. rm Plaintiffs internal medicine expert opines that had imaging studies been ordered within six months -1 1- [* 13] to one year of the original surgical excision of the melanoma, there would have been evidence of the reoccurrence of the cancer. The expert opines that D .Diu s departures caused or contributed to r Mr. Keil s death because he was deprived of the chance to have medications administered to fight the cancer. Again, there arc sufficient issues of fact that remain unrcsolved as to D . D i n that r will preclude granting him summary judgment. Thera is an issue as to whether Dr. D i u should have regarded Mr.Keil s signs and symptoms to be indicative of a r c o c c m n c t of melanoma. While D . r Diazopines that hls treatment WEIS proper, plaintiffs internal medicine expert opines that at all times, given Mr.Keil s history, Dr. Diaz should have operated under a differential diagnosis that the cancer could have mccumd. The two physicians also differ as to whether earlier detection and diagnosis would have changed Mr,Keil s outcome. When them EKCtwo expert opinions that conflict with each other on the same issue, an issw of fact exists and summary judgment is not warranted. r In D .Roses and NYU s motion for summary judgment, they maintain that the statute of limitations for the claims for medical malpractice against these two defendants expired before plaintiff commenced this action, thereby rendering these claims untimely. Dr. Roses last treated plaintiff on J a n w 4,2007, and as to NYU,treatment occurred only on Dccsmbcr 6,2006. These defendants concede that at the time Mr. Keil died on M r h 10,2009, a cause of action for ac medical malpractice was still viable. Therefore, any action for medical m a l p r a c h had to have been commenced by March 10,2010 (one year from the date of Mr.Kcil s death). C.P.L.R.3 210(a). The action was not commenced until April 9,2010, so D .Roses and NYU maintain that the cause r of action for medical malpractice is time barred. -12- . . . [* 14] In opposition, plaintiff maintains that an issue of fact exists as to whether Dr. Roses continued to trcat Mr.Keil as his patient after January 4,2007, by having independent conversations with Mr. Keil and D . Lefkovits in 2007 and 2008. Plaintiff concedes that Dr. Roses had no r appointments with Mr. Keil after January 4,2007; that Dr. ROSCS'chart reflects that Dr. Roses told Mr. Keil to return to his offica in two to three months; and that Mr.Keil never returned to D .Roses r after January 4,2007. Plaintiff maintains that the fact that D .Roses and D .Lcfkovits spoke about r r Mr.Keil, and the fact that both knew that Mr.Keil needed a follow-up CT scan, is enough to raise issues of fact as to the continuous treatment doctrine. These discussions, as the two physicians described at their depositions, were brief and took place casually at a synagogue that both physicians ped odi calI y attended. Dr. Roses d N Y U met their burden on summary judgment by showing that the time within which plaintiff could bring a medical malpractice claims against them expired before she commenced this action. Plaintiff has failed to rebut this showing. First, she has not argued that the continuous treatment doctrine would apply to NYU. Second, there is no basis to conclude that the relationship between D . Roes and Mr. Kcil continued past January 4, 2007. The statute of r limitations is not tolled when a patient is instructed to make a follow-up appointment but fails to do so. &g m d v. Re -I 131 A.D.2d 796,797-98 (2d Dep't 1987). Further, the conversations as described by Drs. Roses and Lefkovits arc insufficient to establish a triable issue offact that Dr. Roses provided any treatment to Mr.Keil after January 4,2007. The causes of action sounding in medical malpractice against D .Roses and NYU shall be dismissed. r - 1 3- [* 15] As to the c a ~of action against him sounding in wrongful death, D .Roses opines, t r in his own affidavit, that by informing Mr.Keil, D .Lefkovits, and Dr. Diaz of the results of the r December 1,2006 PET scan and the need for a follow-up CT $can, and by instructing M .Keil on r January 4,2007, to return to h m in two to three months, he did not depart fiom good and accepted i practices of surgical oncology. He maintains that, to the extent that plaintiff is claiming that the mass seen on the December 1,2006 PET scan represented melastatic melanoma, this would mean that Mr.Keil had Stage IV metastatic melanoma at the time. Dr. Roes maintains that no action or inaction on his part could have prcdichbly affected Mr, Keil's ultimatc outcome, as treatment for Stage IV metastatic melanoma is c o n s i d e d palliative rather than curative, and has not been shown to prolong life. H states that the five year survival ratc for patients with Stage IV melanoma to e visccral sites, such as lung, liver, or brain, is between 610%. He M e r states that the most common treatment for Stage IV melanoma is chcmothcrapy, but for the most part, chemotherapy results are disappointing. D .Roses opines that nothing he did or omitted to do in treating Mr.Keil r could have prolonged Mr.Keil's lifc or changed his ultimate outcome. Dr. Roses' argument in favor of summary judgment on plaintiffs wrongful death CBUEUof action against him, distilled, is that if the PETscan showing a mass was depicting metastatic V melanoma 89 far back as December 2006, then that mass WEU Stage I cancer. Further, if the mass was Stage IV cancer, then Mr. Keil's death w s an inevitability and any wronpfbl conduct by Dr. a Roses could not have proximately caused Mr.Keil's death. This argument suffers from the same open issues of fact as described above regarding the other two physicians and the issue of proximate cause. First, there is a contradiction in Dr. Roses saying that Mr. Keil's death was inevitable, but also that a small percentage of patients with this type of cancer do survive. Sccond, in opposition, -14- [* 16] plaintiIl puts forthan arfidavit fronl an cspcr~ (tiiltm redacted) who opines h a t even witlioui the luiig nndulc on thc PET scan, all thrcc; moving dcfcdunts should have ordered Mr. Keil a follow-up C I scan, aiid that tlir failurc to do so deprived Mr. Kcil of thc chance to fight his cancer, for short andor long icrm surviwl, nnd for a hctter quality oflilc. Thcru are sutlkient conflicting opinions to find that issucs of fact cxivt us to whethcr dcfcndants ncls or omissions proxiniotcly caused gonic diminution in Mr. Kcil s chancc for survival. Surnmary judgrnent as 10 Dr. Roses 011 the claim I m wrongful death is dcnicd. Accordingly. it is hercby ORDERED that suiiitirary judgtneiit is pnrlially granted 011 Motion SequenccNimibcr 004, to the exlent that Dr. Roscs and NYCl arc gr,mled sumniary judgment on the cause of action sounding in medical malpractice, this causc ofaction is dismissed against these two defendants, only, nnd thc clcrk is directed to ciiter judgment ~ccordingly; i t is further iind ORDERED that tlic reinaindcr of Motion Sequcnce Number 004, and Motion Sequence Numbers 002 and 003 in thcir entircty. are denied; and it is further ORDERED that thc parties shnll appear for n previously scheduled -15- settleriicnt

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