Annuziata v Quest Diagnostics Inc.
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Annuziata v Quest Diagnostics Inc. 2013 NY Slip Op 34186(U) March 28, 2013 Supreme Court, Bronx County Docket Number: 301864/10 Judge: Howard H. Sherman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] FILED Apr 08 2013 Bronx County Clerk ·----x Faustini Annuziata and Plaintiffs Index No. 301864/10 -a Quest Dia sties Incorp9rated , Westchester-Bronx OB/GYN Group, P.C. Neil H. Melnick, M.D., Neil C. Goodman,M.D., and Daniel R. Miller, M.D. Defendants Decision and Order -------------.--------------------------x The following papers numbered 1- 8 read on : 1) motion by defendant Quest Diagnostics Incorporated for summary judgment; 2) cross-motion by defendant Neil H. Melnick; M.D. for an order denying Quest's motion, and 3) cross-motion by plaintiff for an order pursuant to CPLR 3124 compel1ing Quest to fully . 1scovery respond to the NoticeofD' NUMBERED PAPERS Notice of Motion -Affirmation - Exhs 1 Affirmation in Opposition - Goodman/Miller 2 Affirmations in Reply - Exhs. 1-3 3,4 Notice of Cross-Motion - Affirmation in Support Exhs. A-C/Melnick 5 Affirmation in Reply to Cross-Motion 6 Notice of Cross-Motion - Affirmation in Support - Pltfs./.Memo of Law 7 Affirmation in·Reply - Exh. A 8 7A Upon the forgoing papers, the· motion and cross-motions are decided as set forth below. Facts and Procedural· Background Plaintiffs commenced this action seeking damages resulting from the failure to timely and properly diagnose and treat plaintiff Laura; Faustini Annuziata s 1 cervical cancer. Her husband has interposed a derivative claim. [* 2] FILED Apr 08 2013 Bronx County Clerk Plaintiffs allege that Quest Diagnostics Incorporated ("QDI") was negligent: 1)1 "by failing to properly and accurately prepare the subject tissue sample"; 2) ~' by failing ~o properly and accurately read the subject tissue sampl~" ; 3) "by failing to employ competent .and appropriately trained personnel to read and interpret the subject tiss~e sample"; 4) ''by failing to employ appropriate and adequate technology to avoid the erroneous read and interpretation of the subject tissue sample"; 5) "by failing to properly and adequately employ a plan for error reduction" ; 6) "by rendering an inaccurate, mistaken and erroneous interpretation"; 7) "by issuing an inaccurate, mistaken and erroneous pathology report containing inaccurate, mistaken and erroneous information"; 8) ''by failing to properly and ~dequately supervise its agents; servants and/or employees"; 9) ''by failing to properly and adequately implement, maintain, and/or supervise quality assurance" , and to ) ''by failing to exercise the requisite degree of reasonably prudent persons under the same or similar circumstances ." [Verified Complaint 1 14]. . In March 2010, with its answer, QDI served a Demand for a Verified Bill of Particulars that included the following . 5. · Set forth a general statement of th~ technology the answering defendant 1 For the sake of clarity the court has enumerated all the claims as asserted in the fourteenth paragraph. 2 [* 3] FILED Apr 08 2013 Bronx County Clerk allegedly failed to employ to read and interpret the. subject tissue sample. . 6. Set forth a general statement of the plan fo~ error reduction that the answering defendant allegedly failed to_ employ. • • • • 8 a. ·Set forth a general statement of the acts and omissions by which plaintiff claims the answering defendant is negligent in failing to employ competent personnel. 8 b. Set forth a general statement of the acts and omissions by which plaintiff claims the answering defendant is negligent in failing to employ appropriately trained personnel. · 9. State whether or not any claim is made as to improper or defective . equipment and, if so, identify the equipment and state the defective conditions. In their response, plaintiffs alleged that QDI was vicariously liable for' the erroneous report of the named technician who analyzed plaintiff's tissue sample [Verified Bill of Particulars <JI 13], and responded to the sp.edfic demands set forth abov~ as follows. 5. · This demand in unintelligible. ·6. Plaintiff objects to said demand on the grounds that it seeks information· that is evidentiary in nature. Ba.....failed to employ competent personnel in that said personnel inistakenly , inaccurately and erroneously read plaintiffs tissue sample · · ~b..... failed to employ appropriately tramed personnel in that said personriel were not capable of ~ccurately and correctly reading plaintiff's tissue sampl~. ! I l· I 9. Not applicable. [* 4] FILED Apr 08 2013 Bronx County Clerk By prior decision and order of this court, those claims against QDI sounding in medical malpractic:e· were dismissed as time-barred on the defendant's cross- motion pursuant to CPLR 3211(a){5). To the extent that QDI addressed the claim of negligent .hiring ~d sought its dismissal _on documentary evidence (CPLR 3211(a)(l)) for the first time in itS reply papers, the court declined to grant the further relief requested . Motions and Contentions Qfthe Parties 1) QDI now moves for an award of summary judgment dismissing the entire complaint on the grounds that those remaining claims against it purportedly soµnding in negli_gence do not contemplate a duty distinct from QDI' s duty to render adequate medical treatment by properly analyzing tissue samples and issuing an accurate cytological report, and as such, the claims sound in medical malpractice, and by virtue of this court's prior decision, are time barred. Defendant argues that the claim of negligent hiring set forth in the bill of particulars is in fact, a claim of medical m~practlce, because it. does not allege a breach by QDI of a general duty to hire competent technicians, but, alleges that QDI was negligent in employing the specific technicicµl who evaluated plaintiffs Pap s;mear, who . . · they further allege was neither competent nor appropriately trained to do .so. . . QDI maintains that dismissal of any negligent hiring claim is Y'arranted as well because : 1) the pleadings are facially insufficient, lacking any allegation that QDI knew 4 [* 5] FILED Apr 08 2013 Bronx County Clerk or should have known of the emp~oyee' s propensity to misread Pap tests, and 2) on the record here, there is no issue of fact that QDI possessed such requisite prior lmmvledge. In addition, QDI argues that this claim must be dismissed as a matter of law as case authority precludes the assertion of an additional claim for negligent hiring/retention cause of action , when , as here, the gravamen of the complaint is posited on the theory of a defendant's vicarious liability for the negligent conduct of an employee that was committed in the course of his/her employment. With respect to the other claims comprising the remainder of the fourteenth paragraph of the complaint, QDI maintains that allegations of inadequate supervision, and those relative to quality assurance and error reduction contemplate no duty to plaintiff distinct fr~m the d':1ty of care in the rendition of medical diagnosis and treatment and as such, the claims are time-barred. ·Plaintiffs maintain that the claims asserting QDI's failure to employ appropriate technology, and/or to implement adequate ~rror. reduction plans, and/or quality assurance, and negligent hiring and supervision sound in ordinary negligence speaking to separate, independent duties owed by QDI , that "do not bear any relationship to the renditio~ of medical care" (Affirmation iri Support of Cross-Motion 114), and were here; timely asserted . It is also argued that defendant has failed to meet its -prima fade burden 5 [* 6] FlLED Apr O~ 2013 Bronx County Clerk to prove as a. matter of law its defense to these claims. Procedurally, it is argued that the supporting affidavits were attested to without the state, and are not accompanied by certificates pursuant to CPLR § 2309 ( c ), and as such, are inadmissible . Substantively, plaintiffs contend that QDI's own submissions raise issues of fact as to whether it was negligent in permitting a cytotechnologist unlicensed in this state, to interpret the tissue sample . Finally, plaintiffs argue that facts essential to oppose the motion may exist but cannot be stated due to the defendant's failure to fully respond to discovery demands. Those demands include documents setting forth the number of slides reviewed by QDI'S cytotechnologist in the ninety days preceding her review of Mrs. Annunzaita's Pap test; QDI policies /protocol then applicable relative to the qualifications of crtotechnologists and the number of slides permitted to be reviewed by each technician , as well as QDI protocol relative to error reduction and/or quality assurance pertaining to the review of slides. In addition, it is argued that QDI has failed to provide records required· to be maintained for Deparbnent of Health inspection pursuant to 10 NYCRR § § 58-1.12 {d) . (2)-(4). 6 I [* 7] I FILED Apr 08 2013 Bronx County Clerk I I. 2) Plaintiff cross-moves for an order compelling QDI to fully respond to Plaintiffs' Notice of Discovery and Inspection dated June 30, 2011 by providing the items abovedescribed. 3) By cross-motion defendant Neil H. Melnick, M.D. seeks the denial of QDI' s motion as untimely, having been noticed seventy days after the expiration of the forty-five day deadline set forth in the order of this court (Green, J.) dated November 16, 2011. The co-defendant also argues ~at the evidence submitted in support of the motion raises.issues of fact as to whether QDI employed an individual for .·work duties for which she was neither qualified nor licensed by this s~ate to perform. The affidavit of defendant's Cytology Department Manager is argued to lack probative value as conclusory, and otherWise unsupported by admissible evidence. In ·addition, it is maintained that QDI fails to come forward with any evidence addressing the claims relative to failures of supervision, error reduction, and quality assurance protocol. It is maintained that the duties to: employ competent and appropriately trained. personnel to ~ad and interpret the subject PAP test; to use adequate technology to avoid. erroneous findings; to implement plans for error reduction and quality assurance, and to adequately supervise employees are duties that "fall outside the ambit of medical malpractice." [Affirmatic;m in Support of Cross-Motion 4II 20]. 7 [* 8] FILED Apr 08 2013 Bronx County Clerk I I . I ·ay affirmation, defendants Neil C. Goodman and D~iel Miller also oppose the motion incorporating by reference the affumations of plaintiffs· and co-defendant Melnick. . In ·reply, QDI argues that the motion is timely as this court granted extensions of time upon QDI' s request for same [Affirmation in Reply to Co-Defendants Goodman/Miller 1 14, 7], and it is well within the court's discretion to extend time for making such a motion, especially when, as here, the note of issue has yet to be filed~ Concerning any 3212 (£) arguments raised in opposition, defendant argues that the discovery sought is not germane to a determination of QDI' s knowledge at the time of hiring of the competency and qualifications of the specific lab technician who subsequently performed th~ Pap test at issue here. QDI asSerts that those documents were provided to plaintiffs in the course of discovery. QDI restates the main contention of the moving papers, that the complaint as asserted does not allege the breach of ·a general duty of care, but a specific one, i.e., to render proper medical treatment to plaintiff in performing and in reporting the results of a cytological analysis of her tissue specimen, a claim that is time barred. To the extent that those in opposition argue th.at the complaint asserts breaches of a broader duty of care, QDI counters that plaintiffs never articulated that duty of care, nor in their pleadings set forth such claims in plain and concise statements in separate paragraphs as is required by CPLR § 3014. In so doing, it is argued they indicated their 8 __________________________________ ...._ ... -·- ... [* 9] · FILED Apr 08 2013 Bronx County Clerk intention not to interpose such claims. Finally, QDI argues that neither plaintiffs nor co-defendants raise . any issue of fact to defeat its prima fade showing warranting dismissal of the claim of negligent hiring, as the allegations of violation of ~ducation Law regulations, argued for the first time· in the papers in opposition here, were never pleaded, and as such cannot ~erve to defeat summary jud~ent (Abolola v. Flower Hospital , 44 A.O. 3d 522 [1st Dept. 2007)). Nor, it is argued , are the regulations, effective ·2006, here applicable, either to defendant's out- of-state lab facility , or to the cytotechnologist whQ wa8 hired in 2005. Finally, QDI maintains that there is no _issue of fact to rebut its ~owing that at the pertinent time, the technician's education and training qualified her to practice cytotechnology in an out-ofstate laboratory permitted by New York State Deparbnent of Heath to receive specimens for analysis (10 NYCRR § 58-1.5). Discussion and Conclusions CPLR 3212 (a) provides in pertinent part, that "any party may move for summary judgment in any actio~ after issue has been joined; provided however, that the court may set a date after which no such motion. may be made, such date being no earlier than thirty days ·after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause.shown [emphasis added]." 9 [* 10] FILED Apr 08 2013 Bronx County Clerk i I . QDI by different counsel in separate affinnations2 affirm that, upon application to i I the court, defendant was granted extensions of time in which to move for summary judgment beyond the December 31, 2011 date set forth in the Compliance Conference Order of November 16, 2011. No court orders are annexed to the affirmations, ·nor does either affirmation include any details as to the date, or the means by which either the applications were made, or the resulting orders issued. However, in light of counsels' assertions, and the statutory language precluding the imposition by court order of an outer time limit less than thirty days after the filing of the Note Of Issue, an event that has yet to occt:ir in this case, it is the finding of this court that the motion for summary judgment is timely made. It is the further finding of this court that though not containing certificates of conformity as required by CPLR § 2309 ( c) the affidavits of QDI' s Cytology Deparbnent Manager and of the cytotechnologist who read plaintiff's Pap smear, each notarized by a notary public commissioned in New Jersey, may be considered upon determination of the motion, the absence. of such certificate~ being a mere irregularity, and not a fatal defect (see, Ha11 y. Elrac. Inc.. 79 A.D.3d 427, 428, 913 N.Y.S.2d 37 [1st Dep't 2010]; Matapos Tech. Ltd. v. Compania Andina de Comercio Ltda, 68 A.D.3d 672, 673, 891 N.Y.S.2d 394 [1st Dep't 2009] ) Affirmation of Michael E. Soffer, Esq. ~ 12 and Afftrmation of Jennifer Gutterman, Esq. 2 ~7 10 [* 11] FILED Apr 08 2013 Bronx County Clerk It is settled that [a] n action to recover for personal injuries !or wrongful death against a medical practitioner or a medical facility or hospital may be based either on negligence principles or.on the more particularized medical malpractice standard" (see Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256, 499 NYS2d 52 (1986]). Simple negligence principles are applicable to those cases where the alleged negligent act may be. readily determined by the trier of fact based on common knowledge. However, where the directions given or treabnent received by the patient is in issue, consideration of the professional skill and judgment of the practitioner or facility is required ~d the theory of medical malpractice applies (see Reardon v Presbyterian Hosp. in City of N. Y., 292 AD2d 235, 236-237, 739 NYS2d 65 [2002]). Friedmann v. New .York HoSJ?ital·Comell Med. Ctr., 65 A.D.3d 850,850-851[1st Dept. 2009] In differentiating the claims, there is no "no rigid analytical line" (Scott v. Uljanov, 74 N.Y.2d 673, 674, 541 N.E.2d 398, 543 N.Y.S.2d 369 (1989]), however, the established criteria provide that when "the gravamen of the complaint is not negligence in furnishing medical treatme~t to a patient, but [in] the ... f~ure in fulfilling a different duty," the claim sounds in negligence ( Bleiler y. Bodnar, 65 N.Y.2d 65, 73, 479 N.E.2d 230, [1985]), and conversely, when claims predicated upon a negligent act or omission by a health care provider "constitute medical treatment or bear a subs~antial relationship to the rendition of medical treabnent by a licensed physician [they] constitute [medical] malpractice." <Bleiler op.Cit., at 72, ; Weiner y. Lenox Hill Hog>., 88 NY2d 784, 788, 673 NE2d 914 11 [* 12] FILED Apr 08 2013 Bronx County Clerk [1996]) 3 Oearly on this record, there is no issue that the laboratory services provided by QDI including the preparation of plaintiff's tissue sample, and the testing of it, bore a substantial relationship to plaintiff'~ medical treatment, and that the cytology report rendered by QDI was a crucial component of plaintiff's diagnosis and treabnent, and an integral part of the process of rendering medical treatment to her (see; Spiegel v. . . Goldfarb. 66 A.D.3d 873, 874, 889 N.Y.S.2d 4S (2d Dept. 2009], lv. app. den. 15 NY3d 711 (2010]; see also, McDermott v. Torre. 56 NY2d 338,452, 437 N.E.2d 1108 (1982] ["continuous treatJ;nent "doctrine held to be inapplicable to toll malpractice claim agairlst laboratory for erroneous benign report); see also, Cummins v. Marchetti, 17 A.D>3d 1160, 794 N.YS. 2d 552 [4th Dept. 2005]). 4 As a result, those claims alleging QDI's negligence in It .is noted that Educ~tion Law § 6521 defines the practice of medicine as " diagnosing, treating, operating prescribing for any human disease, pain, injury, deformity or physical condition." (Education 3 Law§ 6521 ) , while Public Health Law§ 571(1) defines a clinical laboratory as "a facility for the microbiological, immunological, chemical, hematological, biophysical, cytological, pathological, genetic, or other examination of materials derived from the human body, for the purpose of obtaining information for the diagnosis, prevention, or treabnent of disease or the assessment of a health condition or for · identification purposes." In pertinent part, Public Health Law § 576-a~ provides the following definitions with respect to those specific clinical laboratories examining Pap smears : (a) "Cytotechnologist". A clinicaJ laboratory professional specializing in the analysis of cytopathology samples, including Pap smears, for cervical cancer and related diseases who meets the qualifications specified by the department. 4 See also, Calyin y. Schlossman, 74 A.D.2d 265,266, 427 N.Y.S. 2d 632 pst Dept. 1980] [independent medical laboratory compeiled to participate in medical malpractice hearing where it was al1eged lab's "culpable conduct, sounding in malpractice, hastened plaintiff's demise."] In pertin~t 12 [* 13] FILED Apr 08 2013 Bronx County Clerk failing to properly and accurately prepare and/or read the subject tissue sample sound in medical malpractice, and on this record [Verified Complaint~ 14 ## 1,2; 6, 7] have been . determined to be time barred upon QDI' s prior shQwing that the subject cytology report . was issued _more ~an two and one-half years prior to the commencement of this action . In addition, those claims asserting the failure of QDI to properly and adequately supervise its agents, servants and/or employees also sound in medical malpractice (~ee, Shajan v. South Nassau Communities Hos_p.. 99 A.D.3d 786, 952 N.Y.S.2d 448 [2d Dept. · 2012), citing authority of Barresi v. State. 232 A.D.2d 962, 963-964_[3d Dept. 1996)); see 1B NY PJ13d 2:149, at 6 (2013)), and were here, untimely intetjx>sed . However, a claim JM. # 8). for negligent hiring, defined in the analogous hospital setting, 5 in Bleier v. Bodnar. op.cit. at 73, citing authority of Lewis v. Columbus Hosp., 1AD2d444, 447, [41h Dept: 1956], as a" breach of a duty to use due care in selecting and furnishing" medical personnel by appropriately investigating the character and capacity of its agents, that proximately caused plaintiff's injury, was there found to be "a cl~m of negligence pal't1 the court observed the following . The above [statutory) provisions recognize the basic nature of clinical laboratories, and bespeak of medical doctors and laboratories as allies for the prevention and treatment of disease. Although the services of a medical doctor and a laboratory are divisible, they act as collaborators, not antagonists. Their work is interrelated, and as the above-stated policy cogently recognizes, the analysis performed by a laboratory is supplemental to and bears directly upon th~ course of medical treatment to be .provided · Calvin, at 269 13 [* 14] FILED Apr 08 2013 Bronx County Clerk [to] be governed by the three.;.year statute of limitations."· As asserted, plaintiff claims that QDI was negligent in failing to·employ competent and appropriately trained personnel to read and interpret plaintiff's tissue sample, [Verified Complaint 114 # 3). As delineated in. the bill of particulars, it is a~eged that QDI was negligent be.cause it employed a te~cian who rendered an inaccurate report, and who, through inadequate training, was incapable of rendering an accurate one. It is the finding of this court that defendant has sustained its burden to prove that thi~ claim, though sounding in negligence should be dismissed, as a matter of law · pursuant to the authority of Weinberg v. Guttman Breast and Diagnostic Institute, 254 A.D.2d 213, 679 N.Y.S. 2d 127 [1st Dept. 1998]6, as the pleadings here allege that the causative erroneous report for which QDI is to be held vicariously liable, was performed by the cytolotechnologist in the course of her employment with def~ndant. It is noted as . well, that nd claim for punitive damages has been asserted ( compare, Ouiroz y. Zottola 30 A.D.3d 744, 745 [2d Dept. 2012]). lit addition, on this record, defendant has demonstrated that even were there a viable claim asserted, there is no issue of fact that QDI hired or retained the cytologist, who was otherwise qualified by education and training to render the report, with knowledge of her propensity for the causative negligent conduct, i.e., inaccurate Pap test 6 See also, Zorn v. Mount Sinai Medical Center. 2012 WL 4320575 [S.D.N.Y. 09/20/12] 14 [* 15] FILED Apr 08 2013 Bronx County Clerk repo.-ting.. In oppositio~ neither plaintiffs nor ardefendants come forward with probative evidence to raise a material issue of fact to rebut QDI's prima facie showing on this claim, or that, at the time the report was rendered,. the licensing· requirements upon which the opposition is in large measure predicated, which were neither pleaded nor set forth in the bill of particulars (see, Abalola v. Flower Hosp., 44 A.D.3d 522, 843 N.Y.S.2d 615 [1st Dept. 2007]), were applicable to cytotechnologists in defendant's out-of-state medical facility. With respect to the remaining claims asserted, any analysis of whether they sound in ·negligence or medical malpractice, is somewhat hindered because the specific claims remain no further delineated than as interposed. As above noted, in response to the demand for a general statement of the causative failure t9 technology claim plaintiffs · responded that the demand was "unintel.ligible" , while no general statement was provided concerning the /1error reduction" claim because it was objected to as evidentiary in nature. One of.the factors to be considered .is whether a jur.y's assessment of the alleged acts or omissions could be accomplished without expert testimony on technical scientific issues r~sed by the claims. Oearly, any conside.ration of causative culpable conduct arising out of a failure in QDI' s laboratory technology, and/or error reduction, and /or 15 ~~~~~~~~~~~~~~~~~~ --~·---··--· ···- ·-· ···--- -· . . ~····--- . -· .. - ... [* 16] FILED Apr 08 2013 Bronx County Clerk quality assurance protocol would require expert scientific testimony. factor alone is not determinative (see, Weiner v. Lenox Hill. op.cit. However, this at 788-789 [a need for expert testimony signifies only that the technical and scientific nature of the blood-collection process is beyond the ken of the average juror, not that the claim sounds in medical malpractice]; see also, Payette v. Rockelfeller l:Jniv., 220 A.D.2d 69, 73-75, 643 N.Y.S.2d 79 [l5t Dept.1996]). Nor in Weiner. was the fact that the blood collection process was overseen by a physician viewed as controlling. What was held to be determinative of the nature of the cl~ was whether " the challenged· conduct 'bears a siibstantial relationship to the rendition of medical treatment' tO a particular patient... " (Weiner. at 788 , citing Bleiler v. Bodnar, op. cit, at 72), the critical factor is the nature of the duty to the plaintiff which the defendant is alleged to have breached. When the duty arises from the physician-patient relationship or is substantially related to medical treatment, the breach gives rise to an action 8ounding in medical malpractice, not simple negligence. Stanley-y. Lebetldn. 123 A.D.2d 854, 507 N.Y.S.2d 468 [2d Dept. 1986) As such, defects in the collection and/or the screening of a hospital's blood supply, or of organs for transplant (see, Rodriguez v. Saal, 43 A.D3d 272, 275, 841 N.Y.S. 232 (t8t Dept. 2007]) are neither predicted upon an express or implied patient-physician relationship, nor would they involve an analysis of the medical treatment or diagnosis furnished to 16 [* 17] FILED Apr O~ 2013 Bronx County Clerk· the specific- patient ..plaintiff lsee, Rodriguez. supra at 275). It is submitted on this record, the challenged conduct asserted in the remaining enumerated causes of action : a failure ·to employ appropriate and adequate technology to a~oid the erroneous read and interpretation of plaintiffs tissue sample, and the respe~ve failures to properly and adequately employ a plan for error reduction and/or implement, inaintain, and/or supervise quality assurance, are not duties, as urged by plaintiffs and co-defendants outside the ambit of medical malpractice, but devolve from the underlying malpractice claim , i.e., that QDI improperly prepared, read, and reported plaintiff's Pap smear, an integral part of the process of rendering medical diagnosis and treabnent to her, and , as such are here time-barred. For the reasons above-stated, the m9tion of defendant QDI is granted.in its entirety and the cross-motions of plaintiffs and the co-defendant Melnick are denied as academic. This constitutes the decision and order of this court. Dated : March 28, 2013 Howa 17 --------------------··---·-. .... ·-
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