Gadomski v Ficazzola

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Gadomski v Ficazzola 2019 NY Slip Op 34771(U) January 28, 2019 Supreme Court, Westchester County Docket Number: Index No. 67534/2016 Judge: Terry Jane Ruderman 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. FILED: WESTCHESTER COUNTY CLERK 01/29/2019 04:33 PM NYSCEF DOC. NO. 60 INDEX NO. 67534/2016 RECEIVED NYSCEF: 01/28/2019 To commence time for appeals right commence the statutory statutory time appeals as of ofright (CPLR you are advised (CPLR 5513[a]), 5513[a]), you advised to serve serve a copy copy of upon all parties. parties. of this order, order, with with notice notice of of entry, entry, upon SUPREME ST A TE OF NEW NEW YORK YORK SUPREME COURT COURT OF THE THE STATE COUNTY WESTCHESTER COUNTY OF WESTCHESTER ---------------------------------------------------------~ ----------------x ------------------------------------------~---------------~----------------){ STEPHEN R. GADOMSKI BELLE GADOMSKI, STEPHEN GADOMSKI and BELLE GADOMSKI, DECISION and ORDER DECISION and ORDER Sequence Nos. 1 Sequence Nos. Inde){ 67534/2016 Index No. No. 67534/2016 Plaintiffs, Plaintiffs, -against-againstI( MICHAEL N.Y. MICHAEL FICAZZOLA, FICAZZOLA, M.D., M.D., GREATER GREATER N.Y.UROLOGY, GREATER NEW YORK UROLOGY, PLLC, PLLC, UROLOGY, GREATER NEW YORK UROLOGY, ADVANCED CENTERS OF NEW NEW YORK, YORK, ADVANCED UROLOGY UROLOGY CENTERS ADVANCED CENTERS OF NEW NEW YORK, YORK, a ADV AN CED UROLOGY UROLOGY CENTERS MEDICAL PROFESSIONALS PROFESSIONALS Division of Division of INTEGRATED INTEGRATED MEDICAL PLLC MEDICAL PROFESSIONALS, PROFESSIONALS, PLLC and INTEGRATED INTEGRATED MEDICAL PLLC, PLLC, Defendants. Defendants. -----------------------------------------------~---------------------------x -------------------------------------------~---~---------------------------){ RUDERMAN, J. RUDERMAN, The following papers were were considered with defendants' motion pursuant pursuant to The following papers considered in connection connection with defendants' motion CPLR 3212 for summary judgment dismissing CPLR 3212 summary judgment dismissing the complaint complaint as all of of the defendants: defendants: Papers Papers Notice of Motion, Notice of Motion, Affirmation, Affirmation, E){hibits Exhibits A - L Affirmation in Opposition, Opposition, E){hibits Affirmation Exhibits A - G Reply Reply Affirmation Affim1ation Numbered Numbered 11 2 3 This medical medical malpractice malpractice action action alleges alleges a failure failure to timely diagnose and treat This timely diagnose treat prostate prostate cancer in plaintiff Stephen Gadomski. Gadomski. 11 cancer plaintiff Stephen Plaintiff first presented presented to the office of defendant defendant Michael Ficazzola, M.D. September Plaintiff first office of Michael Ficazzola, M.D. on September 28,2005, having been been referred referred due·to due to an elevated elevated PSA PSA level level of of 4.55 4.55....Plaintiff Plaintiff also also complained complained of of 28, 2005, having 1 1 Plaintiff Plaintiff Belle Belle Gadomski's Gadomski's claims claims are solely solely derivative derivative in nature; nature; the the references references to "plaintiff' "plaintiff' that follow follow will will refer refer to plaintiff Stephen Gadomski. Gadomski. that plaintiff Stephen 1 [* 1] 1 of 7 FILED: WESTCHESTER COUNTY CLERK 01/29/2019 04:33 PM NYSCEF DOC. NO. 60 INDEX NO. 67534/2016 RECEIVED NYSCEF: 01/28/2019 urinary urgency urgency and and frequency. frequency. Dr. Ficazzola Ficazzola performed performed a prostate prostate examination, examination, which which revealed revealed urinary ,-.. r- prescribed. was prescribed. Levaquin was which the antibiotic no nodules, and was significant for prostatitis, antibiotic Levaquin prostatitis, for which was significant nodules, and Plaintiff returned returned to Dr. Ficazzola Ficazzola on October October 19, 2005, 2005, and and reported reported that that the the medication medication had had Plaintiff helped the the urinary urinary complaints. complaints. helped . ..,,,.. . ~d Dr. Ficazzola subsequent examinations, examinations, and plaintiff in subsequent tests on plaintiff PSA tests repeat PSA performed repeat Ficazzola performed 2010. The 2008 and three biopsies of the the prostate was performed July 30, 30,2008 and October October 20, 20,2010. The between July performed between prostate was biopsies of three results of of each each of of those those biopsies biopsies showed showed chronic chronic inflammation, inflammation, but but no cancer. cancer. results biopsy, due to a Following January 14, 14,2011, ordered a saturation saturation biopsy, Ficazzola ordered 2011, Dr. Ficazzola visit on January Following a visit prostatic hyperplasia benign prostatic rise in plaintiff PSA levels. levels. The The results results found found benign hyperplasia ("BPH"), ("BPH"), and and plaintiffss PSA rise 2011, despite marked inflammation, inflammation, and no cancer. cancer. On July July 15, 15,2011, despite a further further rise rise in plaintiffs plaintiffs PSA PSA marked were PSA levels the elevated that the level, Ficazzola order another another biopsy, since it appeared appeared that elevated PSA levels were biopsy, since not order Ficazzola did not level, prescribed Avodart non-cancerous conditions. conditions. On October October 21, 2011, 2011, Dr. Ficazzola Ficazzola prescribed Avodart to due to non-cancerous shrink the prostate, prostate, relieve relieve urinary urinary symptoms symptoms and address address the elevated elevated PSA PSA levels. levels. shrink had gone PSA had his PSA 2012, his When gone down down to April 20, 2012, Ficazzola on April returned to Dr. Ficazzola plaintiff returned When plaintiff 6.91. In the year year that that followed, followed, his PSA PSA continued continued to decrease decrease while while he was was taking taking Avodart; Avodart; on 6.91. 2013, his PSA May 3, 2013 his PSA PSA was was 5.2. However, However, on November November 15, 15,2013, PSA level level, increased increased to 7.9, May ' . Ficazzola point, Dr. Ficazzola this point, At this 27, 2013. At further increased increased to 8.6 as of of December December 27,2013. and it further 2014, and performed on January recommended MRI followed followed by a biopsy. An MRI MRI was was performed January 6; 6,2014, and its biopsy. An recommended an MRI finding included included indications indications "of "of moderate moderate sm~picio~ suspicio~ for prostate prostate cancer" cancer" and and recommendations recommendations finding Ficazzola time Dr. Ficazzola the time However, by the core biopsies apex and and midperipheral zone. However, midperipheral zone. the left apex biopsies in the for core planning to stay had those those results, results, plaintiff was in Hawaii, Hawaii, where where he was was planning stay for three three months. months. plaintiff was had According to plaintiff, plaintiff, when when Dr. Ficazzola Ficazzola called called to tell him him the the results results of of the the MRI MRI and According 2 [* 2] 2 of 7 ( C INDEX NO. 67534/2016 FILED: WESTCHESTER COUNTY CLERK 01/29/2019 04:33 PM NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/28/2019 -~ . .· ,;. . . I¥tve a biopsy early to have that a biopsy biopsy was wasnecessaIy, plaintiffpropose9~ither corning.homeearlyto biopsy propose~ eitJier 09niiJ:!g,h~me ne~essary, piaintiff that • . . ? • ·. . . ' ·. . :. . . . ·. :. . . . // f ·. that.Dr. his dep~sition testifi~d performed, Hawaii- .. ·Plaintiff testified deposition that Dr. petf9rmed in Hawaii biopsy performed having a biopsy performed, or having ~Iain.tiff .. ·at his , . . .... • • • •• it • . • • :. •"" ~~~es~arf '•• •• " , •• V • • - • •• • ' ' th~t telephone . their telephone during their tiJ plaintiff, afno titne when he returned. returned in three three month~:: months .. According According 'toplaintiff,.at,'no tiPle during when ,db done·: Ficazzola responded responded that. thatit ;as'not was'not netessary' t~} t<?,'dbeither;, ~d arid that the the J:,iopsy piopsy com.d could be done: Ficazzol~ ··1 -~ • • ·•• •• •· • • , • •• • • ··.... ... •• ··-: a; • .-- ·:r· -.,·, biopsy the biopsy tirgencyto·_having there was conversation did did Dr. Dr. Ficazzola infoimhimthat tohavin~ the hiµi :that therewasaIl,yurgency Fic~zolainfoim conversation ~- .· . ., MY .• . , . ,. . :-:.· performed. · performed. ", ..-· 'l. .· . . . . ,~ ~. :l . . .. ~ • . .· .. .· ~ . • .. ' .· ,. . .. _ .. . '. . . i... '.. . .~ conversation 2014 telep~one Ficazzola's recollection recollection oftheJanuary2014 telephone conversation was was tµat that pl~ntiff plaintiff . the. Janw.uy of Dr. Ficazzola.,s . . ·:.,. . : ·.,.•: • •• <. . . /- • . . • biopsy the· biopsy he,told _and he said he would told ·plaintiffto plainttffto sched~ie schedule the thtee,to four weeks, and Hawaii for threetofour:veeks, would be in Hawaii said . . . . - •· • • - • •• • ,.· ..... •'.. •• a • • -' .-t>.':'\· -~"";· · .. _.·, 1 - •. ;..~ • .· • • · · .. ·. ~·· which 2014, at. scheduled-for April when he ret~ed returned from from his v.acatid~," vacation. 'the, The biopsy biopsy w~&Jirst wastlrstscheduledfor April 25, 2014, atwhich when .. . 2014 f9r May fescheduled was: the time, because because. plaintiff plaintiff. was was thensuffering'from the _flu,:it flu, it was rescheduled for May 30, 30, .2014. thel).·stiffering· tiJJle, . . . : ·.fr~m . .. . . . . . , be plaintiff'ss which plaintiff reported to be a q1e~sop. This biopsy found cancer cancer of one core, core, ~eported QleCisoJ}8, which in on~ p~9state in ~f the p~ostate biopsy found This J /. _. - . ' d . - • - • ,;. J .,. ."' • .·-.:.. • : / .,' ~ •• ; visitort Ataii"d{:fic~ expert explai.;_s explaiJis is an an aggres~ive,f~~ aggressiv~ form of prostate cancer. At an "dffice visit on )~ell, June 11, 2014,. 2014, Dr. prostate cancer;. of expert . , ~-~ r .. ~ .,- - •• ., • • • .• -.~ .."· pjajntiff with s_ Ficazzola discussed discussed his treatmentproposals_wiihp~aintiff. treatment.proposal Ficazzola . .. . . .. .· . . . .-'-• . . ' -~ •.. ,· •. · .,; he.saw where he Plairitiff soughftreatinerit atMenjoriif at,Meworial Sloan:Keitering Sloan Kettering Gancer,Centet, Cancer Center, where saw then sought·treatmerit Plaintiff then ~ - . • . ' •. • - •. "?-' .;'.""•. . •. .. \. ,,- . - -,., r • • .• • "" Vincent Laudone Laudone on onluly 3,_ 2014, and underWent.sµrg~r underwent surgeryy-~nAugust on August 20~ 20, 2014 2014 to removeihe remove the J~y\2.014,~d Dr. Vincent - ·, -a: : ~ ·.,. <. was ''significant extracaps~ar had been, there had entire prostate. prostate. During During that that pio_ce.dµre procedure it was fourid .th~ltthere been "significant extracapsular found.that entire ' • , • • • • 1, ~ere.fourid A leveJs Afterpiaintiff'sPS prpstate.': extension on the left side side of,the of the prostate." After phiinti(fs PSA levels were found to be .58 on the left extension . . . . . ·; .. ., . , - . . . '. . " determined physician_s October 23, 23,2014 and .66, .66.on 16., 2014, 2014, his his treating treating physicians determined that that he be~etilber 16, on December 2014 and October "',,-'. . . . •-. ! .. ( . . . . ~~ .,,. •, ,. . .- ·...• ·, .. • '.. . pf..·• . would require require adjuvant_therapy, adju~anttherapy_ ~nd__ ,raqiationthenlpy._ ~d;:raqiatfoiithera would . .., .... ... •. . '• . . . . ·. . 2016, ;gainst ~oyembe1)2, Plaintiff commenced tl;1i~m~dical action 011 N oyember' 22, 2016, against Dr. malp~actice actiono11 med!fal malpractice Plaintiff commenced~~~ assoc,iated; Ficazzola, and and the the comparµes companies ~th with wh~mJie.i~ wh~mheis of-\Vas ~r_wasassociated. Ficazzola, expert affirmation moving for summaty_ju,dgmen summary judgment, defendants rely-on rely on ~lie t.lIeexpert affirmation of of Samir Samir · t,. clefendants In moving.f<?r .. ., . ·' . . . . . ._ . . ·.. :·· . , .- ..,. 3 . " [* 3] " 3 of 7 -~ , .'". . '-· FILED: WESTCHESTER COUNTY CLERK 01/29/2019 04:33 PM NYSCEF DOC. NO. 60 INDEX NO. 67534/2016 RECEIVED NYSCEF: 01/28/2019 Taneja, M.D., who asserts that Dr. Ficazzola's care and treatment of plaintiff was consistent with " the applicable standard of care, that the delay before the May 30, 2014 biopsy was not attributable to any negligence by Dr. Ficazzola, and that plaintiff's treatment, prognosis and outcome did not likely change based on that delay. In opposition, plaintiff submits the affirmation of his expert, who offers the opinion, to a reasonable degree of medical certainty, that Dr. Ficazzola departed from accepted standards in that once the abnormal MRI scan results were reported, and in view of plaintiff's rising PSA levels while he was taking Avodart, he failed to immediately inform plaintiff that a biopsy should be performed as soon as possible. While acknowledging Dr. Ficazzola's testimony that plaintiff said he would be away for several weeks, not several months, plaintiff's expert observes that there is no documentation in Dr. Ficazzola's chart that he ever told plaintiff that it was imperative that the biopsy be performed. The expert added that the rise in PSA while plaintiff was on Avodart indicated that this was potentially an aggressive form of prostate cancer, making it medically necessary for Dr. Ficazzola to advise plaintiff of the risks associated with a delay in having the biopsy performed. Further, the expert added that at the time that the biopsy was cancelled and rescheduled~ Dr. Ficazzola should have impressed on plaintiff the need to have the biopsy performed as soon as possible, yet the doctor's chart contains no indication of any such conversation. As a result of these claimed departures, according to plaintiff's expert, the canc~r spread outside of the prostate capsule into the surrounding tissue; necessitating additional forms of treatment, including radiation and adjuvant therapy, in addition to the prostatectomy, to ensure that all of the cancer cells were eradicated. In reply, defendants argue that plaintiff's expert fails to establish that plaintiff would have 4 [* 4] 4 of 7 INDEX NO. 67534/2016 FILED: WESTCHESTER COUNTY CLERK 01/29/2019 04:33 PM NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/28/2019 earlier; performed earlier; been surgery had prostate avoided the subsequent treatment performed if~. the prost~te.surgeryhadb~en treatment. i(the the subs~querit needJor the needJor avoided the •·: ~· . . . " extensiq11 extracaps~lar.·-.ex~en~ion how the extracapsular they also claim that how can be . nofestablished plaintiff has no(established that plaintiffhas also claim . . . . Ficazzola. attributed malpractice by Dr. Ficazzola. attributed.. to malpractice .. . . -. Analysis Analysis from departure from action are a deviation The elements elements of in amedical malpractice deviation.. or departure malpractice aCtion proof- inamedical of proof The - -~ , ":,. . -' damage injury or damage of injury proximate _cause accepted cause of was a proximate departure was tha~ the departure evidence tha~ and evidence practice, and accepted practice, the judgment, the motion for summary On_ a motion Thompson Vv Orner, Orner,36AD3d summary judgment, D~pt 2007]). On J6'AD3d 791 [2d P~pt2007]). (see Thompson - ... ' ' and from good any departure of any absence of the absence defendant physician of establishing departure' from good and establ_ishing the burden of _the burden physician has the defendant malpractice (see ~ny alleged malpractice of ~nyalleged result of accepted (see. injury as a result of injury absence of th~- absence or the' p~actice, or medical practice, accepted medical -- . . : . . . . . . . ~ . . . Taneja, Dr. of Dr. 'Taneja, Williams v Sahay, 366,368 [2d Dept With the affirmation of 2004]). Withtheaffil'mation Dept 2004]). AD3~ 366,368 Sahay, 12 AD3g Williams have established records, defendants medical record,S, Ficazzola's deposition testimony and the submitted submitted medical defendants have esta~lisheci testimony and Ficazzola's deposition medical accepted medical and accepted good and departure from good of any departurefrolll a prima absence of the absence either the of either showing of facie showing prima facie .. m,alpractice: any m,alpractice. of any result of as a result injury practice, or the absence of injury ~s of practice, the absence a only judgment must summary judgment motion for summary "A plaintiffopposi~~a ddendant physician's physician's motion must only plaintiff opposing. a defendant "A - showing" (Stukas fa~ie showing" defendant's"prima facie submit .to rebut the defendant'spfima (Stukas v rebut the or_ mater_ialsto facts ormater.ials evidentiary facts submit evidentiary . . :' ',' - : ~ "': .._. .. ,ii.. - - -_ :· .~ - -;. (". f, i;'" ;, ~ -' .,~ -~ -. medical ina me<iical not appropriate i~ not judgment is 18,30 "Summary judgment appropriate ina 2011]). "Summary [2d Dept 2011]). 30 [2dDept AD3d 18, Streiter, 83 AD3d ·.Streiter, (Ar,onov v opinions" (Ar;onov expert opinions" medical malpractice action where. the parties.adduce conflicting medical expert parties-31-dduce conflicting where;the malpractice action . - - . omitted]). citation omitted]). and· citation marks and' quotation marks Soukkary, 13] [internal [internal quotation 2013] Dept 20 623,624 [2d Dept AD3d 623,624 Soukkary, 104 AD3d '' '".-... resolved by a only be resolved can only which can issue~ which credibility is.sue~ "Such conflicting raise credibility will raise opinions will expert opinions conflicting expert "Such Pere!, 51 also Roca_vv PereZ, Dept 20l2];_se·e afsoRoca jury" (DiGeronimo v Fuchs; 933, 936[2d 936'[2d Dept2012];sie "'.'.034 _933, Fuchs, 101 AD3d jury" (DiGeronimo ::~ • 0 _ .' c., - • 2005]). AD3d 517, 5 i 9 [2d Dept 2005]). AD3d757, Feinberg ~Feit,23 vFeit, 23 ~D3d517,5i9[2dDept [citing.Feinberg 200_8] [citing Dept 2°9.8] AD3d 757, 759 [2d Dept insufficient to evidence, are insufficient While supported by competent competent evidence,. not supported alleg~tions, not conclusory allegations; While conclusory , ".; • ·- ._ .' - . 5 ' ! [* 5] 5 of 7 • • - 0'" 0 _ -_ - FILED: WESTCHESTER COUNTY CLERK 01/29/2019 04:33 PM NYSCEF DOC. NO. 60 INDEX NO. 67534/2016 RECEIVED NYSCEF: 01/28/2019 2003]), Dept 2003]), 420,421 AD2d 420, 421 [2d Dept Mansouri, 302 AD2d DiMitri v Monsouri, judgment (see DiMitri summary judgment defeat summary ·. defeat defendants' expert, that of than that conclusory than plaintiffs of defendants' expert, Dr. less conc1usory more or less was no more opinion was expert's opinion plaintiffs expert's between the delay between Taneja. of plaintiffs focused on the delay records, focused medical records, plaintiffs medical review of upon review Both, upon Taneja. Both, opinions as to their expert Both offered biopsy. Both January 6,2014 and the offered their expert opinions 20, 2014 biopsy. May 20,2014 the May MRI and 2014 MRI January 6, need for growth of whether delay had a negative impact, either of the ca.ricer, cancer, or the need either on the growth negative impact, whether the delay that the treatment opined that Taneja opined 'Yhile additional treatment treatment beyond Dr. Taneja treatment prostatectomy. While the prostatectomy. beyond the additional c that the plaintiffs expert was the opinion plaintiff needed was altered by that delay, it was opinion of ofplaintiffs expert that that delay, not altered was not plaintiff needed additional that growth, that due to that delay, and extracapsular growth growth was was attributable attributable to the delay, and that growth, additional extracapsular plaintiff advised plaintiff Ficazzola advised had Dr. Ficazzola needed had treatment been needed have been not have would not that would necessary that became necessary treatment became Taneja, it According to Dr. Taneja, performed'. According of biopsy performed~ the biopsy having the delay in having with a delay associated with risks associated the risks of the before months before wait several plaintiff wait was standard of such as plaintiff several months patient such have a patient care to have of care the standard within the was within plaintiffss expert, undergoing following the according to plaintiff expert, the while according report, while MRI report, the MRI biopsy following undergoing a biopsy need for the need plaintiff the upon plaintiff Fi_cazzola applicable standard standard of of care required that to impress impress upon that Dr. Ficazzola required applicable . ~ out point out While defendants report. While alacrity in scheduling scheduling the after the January 2014 MRI MRI report. defendants point January 2014 biopsy after the biopsy alacrity have occurred cancer could extension of affirmation that that the extracapsular extension of the cancer could have occurred the extracapsular reply affirmation their reply in their this· 20, 2014 surgery, August 20,2014 the August during the delay 2014 biopsy surgery, this biopsy and the May 30, 2014 between the May delay between during expert; it affects possibility does not negate the reasoning plaintiff s expert; affects the the weight weight of of the of plaintiffs reasoning of not negate possibility does .",",-. ·""'- regarding expert regarding plaintiffss expert of plaintiff opinion of argument, n~t n~t its admissibility admissibility. .. The of the opinion true of same is true The same argument, and subsequent biopsy and the biopsy when the of when regardless of whether subsequent needed regardless been needed have been would have therapy would adjuvant therapy whether adjuvant opinion contrary opinion Taneja's contrary based on Dr. Taneja's prostatectomy eliminated based not eliminated value is not performed; its value were performed;its prostatectomy were (( based on which he based that the additional additional therapy called for in any event, event, which been called have been would have therapy would .that ~ ~ y '~-, "~-, probability calculations. probability calculations. 6 [* 6] 6 of 7 FILED: WESTCHESTER COUNTY CLERK 01/29/2019 04:33 PM /;' NYSCEF DOC. NO. 60 INDEX NO. 67534/2016 RECEIVED NYSCEF: 01/28/2019 Accordingly, it is hereby hereby Accordingly, ORDERED that that defendants'. defendants' motio11 motiol1 for for summary summary judgment dismissil1g the the complaint complaint is · ORDERED judgment disrriissi~g denied; denied; and it is further further .· . . . . -. : - ORDERED that that the the parties parties are directed.to directed to appear appear in the the Settlement Settlement Conference Conference Part Part on ORDERED Tuesday, March March 12, 12,2019 a.m.,.at the the Westches~er Westchester County County Courthouse Courthouse located located at 111 Dr. Tuesday, 2019 at 9:15 a.in.,,at Martin Luther Luther King King Jr. Boulevard,_ Boulevard, White White Plains~ Plains, New York, 1060 10601. Martin New York, l. This constitutes constitutes the the Decision Decision and and Order.-0fthe Order of the Court. Court. ·. This Dated: New York· Dated: White White Plains, Plains, New York January January .d;r,2019 .4r2019 ~fU~~.~'" ·~@uLu,a;c .. .. HON. f : HO~RUDERMAN, J.S.C. JANERUDERMAN, J.S.C. ). 7 [* 7] 7 of 7 ..·. I

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