Gallagher v Northwell Health, Inc.

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Gallagher v Northwell Health, Inc. 2021 NY Slip Op 33243(U) November 22, 2021 Supreme Court, Nassau County Docket Number: Index No. 610559/17 Judge: David J. Gugerty 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. INDEX INDEX NO. NO. 610559/2017 610559/2017 FILED: NASSAU COUNTY CLERK 11/24/2021 10:02 AM NYSCEF DOC. DOC. NO. NO. 157 RECEIVED NYSCEF: NYSCEF: 11/22/2021 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NE COUNTY OF NASSAU YORK p RE s ENT : HON. DAVID J. GUGERTY J.S.C. I I ------------------------------------------------------- -----------------X JEAN M. GALLAGHER, TRIAL/IAS PART24 I Plaintiff Index No. 610559/17 Mot. Seqs. 002 & 003 Submit Date 6/14/21 - againstNORTHWELL HEALTH, INC. NORTH SH RE UNIVERSITY HOSPITAL, ILANA A. KAF R, M.D., BRIAN J. BURKE, M.D., ERICH Y. LEE, MD., JOHN R. ACERRA, M.D., TIMOTHY J. PA MIERI, M.D., "JOHN DOE/JANE DOE, M.D.", JON THAN D. HERMAN, M.D., and ELITE WOMENS HEALTHCARE, LLP, Defend ts. -------------------------------------------------------i-----------------X The following papers were read on this motio NYSCEF Numbered I : Notice of Motion, Affirmation, and Exhibits. . ................... ...................... Notice of Motion, Affirmation, and Exhibits. ....... ............... ...... .......... .. Affirmation in Opposition and Exhibits................................................ Affirmation in Opposition and Exhibits....... .... ... ...... ............... ...... ... ... Affirmation in Reply....................................................................... Affirmation in Reply and Exhibits............. ...................... ......... ......... 69- 91 93 -119 123 -136 137 -150, 152 153 155 - 156 Defendants, Jonathan D. Herman, M.D. ("Herman"), and Elite Women's Healthcare, LLP ("Elite"), move by notice of motion (Mot. Seq. 002) for an order: (a) for summary judgment pursuant to CPLR §3212 dismissing all claim against Herman and Elite; and (b) for such other and further relief as this court may deem just fuld proper. Defendants, Northwell Health, Inc. ('{orthwell"), North Shore University Hospital ("North Shore"), Ilana A. Kafer, M.D. ("Kafef"), Brian J. Burke, M.D. ("Burke"), John R. Acerra, M.D. ("Acerra"), and Timothy J. M.D. ("Palmieri"), move by notice of motion (Mot. Seq. 003) for an order: (1) pursuant to PLR §3212, granting summary judgment and dismissing the complaint with prejudice agai st Northwell, North Shore, Kafer, Burke, Acerra, and Palmieri; or in the alternative, (2) partial ummary judgment pursuant to CPLR §§3212(e) and (g); and (3) for such other and further reli fas this court may deem just and proper. Pallieri, 1 [* 1] 1 of 8 FILED: NASSAU COUNTY CLERK 11/24/2021 10:02 AM NYSCEF DOC. DOC. NO. NO. 157 INDEX INDEX NO. NO. 610559/2017 610559/2017 RECEIVED NYSCEF: NYSCEF: 11/22/2021 i I The instant action sounds in medical plaintiffs appendiceal cancer. The complaint negligently committed "acts and/or omissions contributing and proximate cause of the injuri alpractice rel~ted to the diagnosis and treatment of ontains two fauses of action, alleging defendants fmalpracti9e which were the competent and s to plaintif~' and lack of informed consent. By stipulation, dated May 24, 2021, th action has ~een discontinued against Northwell. Defendant, Erich Y. Lee ("Lee") has not appe ed in the ac 1 ion. "It is well established that 'the propon nt of a sumn{ary judgment motion must make a prima facie showing of e titlement to jludgment as a matter of ~aw, tendering sufficient evidence to d monstrate thp absence of any material issues of fact.' (Alvarez v. Prospect Hi sp., 68 N.Y.!2d 320,324 [1986]; see also William J. Jenack Estate Apprais rs & Auctio~eers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475-476 [2013]; CPL 3212[b]). qnce the movant makes the proper showing, 'the burden shifts o the party opposing the motion for summary judgment to produce evident ary proof in admissible form sufficient to establish the existence of material isrues of fact which require a trial of the action' (Alvarez, 68 N.Y.2d at 324). Tre 'facts must be viewed in the light most favorable to the non-moving party' (Vega v. Restani Constr. Corp., 18 N.Y.3d 499,503 [2012] [internal quodtion marks omitted]). However, bald, conclusory assertions or speculation ~d '[a] shadowy semblance of an issue' are insufficient to defeat summary judgment (S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338,341 [1974] ), as are merely conclusory claims (Putrino v. Buffalo Athletic Club, 82 Nr Y.2d 779, 781 [1993])." (Stonehill Capital Management, LLC v Banktthe West, 28 N.Y.3d 439,448 [2016] "In order to establish the liability of a rofessional health care provider for medical malpractice, a plaintiff must prove that the pro ider "'departed from accepted community standards of practice, and that such departure fas a proximate cause of the plaintiffs injuries."' (Schmitt v Medford Kidney Ctr., 121 A.D.3d 1[088, 1088 [2nd Dept. 2014] [quoting DiGeronimo v Fuchs, 101 A.D.3d 933, 936 [2nd Dept 2012]]; Finkv DeAngelis, 117 A.D.3d 894, 896 [2nd Dept. 2014]; Stukas v Streiter, 83 A.D.3d 18, 23 [2nd Dept. 2011]). "A defendant seeking summary judgment in a medical malpractice aption bears the initial burden of establishing, prima facie, either that there was no departure from tp-e applicable standard of care, or that any alleged departure did not proximately cause the plaint,ffs injuries." (Michel v Long Is. Jewish Med. Ctr., 125 A.D.3d 945, 945 [2nd Dept. 2015], denied, 26 N.Y.3d 905 [2015]; see also Barrocales v New York Methodist Hosp., 122 .D.3d 648, 649 [2nd Dept. 2014]; Berthen v Bania, 121 A.D.3d 732, 732 [2nd Dept. 2014]; Trauring v Gendal, 121 A.D.3d 1097, 1097 [2nd Dept. 2014]; Stukas, 83 A.D.3d at 23). "Once a defendant physician has made such a showing, the burden shifts to the plaintiff to demonstrat the existence of a triable issue of fact, but only as ii 2 [* 2] 2 of 8 FILED: NASSAU COUNTY CLERK 11/24/2021 10:02 AM NYSCEF DOC. DOC. NO. NO. 157 INDEX INDEX NO. NO. 610559/2017 610559/2017 RECEIVED NYSCEF: NYSCEF: 11/22/2021 to the elements on which the defendant met th prima facielburden." (Gillespie v New York Hosp. Queens, 96 A.D.3d 901, 902 [2nd Dept. 012]). 1 "Establishing proximate cause in medi al malpractife cases requires a plaintiff to present sufficient medical evidence from which areas nable person might conclude that it was more probable than not that the defendant's departu e was a subslantial factor in causing the plaintiff's injury." (Semel v Guzman, 84 A.D.3d 1054, 1 56 [2nd Dep. 2011] [citing Johnson v Jamaica Hosp. Med. Ctr., 21 A.D.3d 881,883 [2nd De:A. 2005]]; Gordbergv Horowitz, 73 A.D.3d 691 [2 nd Dept. 2010]; see also Skelly-Hand v Liza di, 111 A.D.3d 1187, 1189 [2nd Dept. 2013]). A plaintiff is not required to eliminate all other p ssible caust. (Skelly---Hand at 1189). "'[G]eneral allegations that are conclu ory and unsupported by competent evidence tending to establish the essential elements of defendant's motion for summary judgment (ci 662, 663 [2nd Dept. 2012] [quoting Bezerman . see also Savage v Quinn, 91 A.D.3d 748, 749 84 [2 nd Dept. 2008]). edical malpractice are insufficient to defeat a ations omittdd).'" (Bendel v Rajpal, 101 A.D.3d Bailine, 95 k..D.3d 1153, 1154 [2nd Dept. 2012]]; d I [2n Dept. 2012]; Myers v Ferrara, 56 A.D.3d 78, ! I Initially, the court notes that plaintiff's opposition p~pers are devoid of any arguments in opposition to the dismissal of the action as ag inst defendants, Elite, Acerra, Palmieri, and Kafer. Therefore, the arguments made by Elite, Ace a, Palmieri, and Kafer in support of summary judgment are deemed conceded and the court constrained to dismiss the action against them. r Accordingly, defendants' motions are Palmieri, and Kafer. [RANTED in their entirety as to Elite, Acerra, "To demonstrate a lack of informed co sent, the plaintiff is required to establish that (1) the defendant failed t? disclose the material risks, benefits, and alternatives to the [procedure] whiph a reasonable medical practitioner under similar circumstances would hav.e disclosed, in a manner permitting the plaintiff to make a knowledgeable eval~ation, and (2) a reasonably prudent person in the plaintiff's position woul~ not have undergone the [procedure] if he or she had been fully informed (se~ [Public Health Law § 2805-d[l], [3]; Sarwan v. Portnoy, 51 A.D.3d 655, 656-657; Davis v. Nassau Ophthalmic Servs., 232 A.D.2d 358). The alleged ~ualitative insufficiency of the consent must be supported by expert medical ~lstimony (see Davis v. Nassau Ophthalmic Servs., 232 A.D.2d at 358)." I (Johnson v. Jacobowitz, 65 A.D.3d 610, 613 [2nd Dept. 2009]) Here, plaintiff is alleging that defend ts failed to timely diagnose appendiceal cancer, resulting in injury. For a failure to diagnose to be the basis of a cause of action for a lack of informed consent there must be a related inva ive procedure (see Lewis v. Rutkovsky, 153 A.D.3d 450, 456 [1 st Dept. 2017]; Janeczko v. Russell 46 A.D.3d 324 [1 st Dept. 2007]; Public Health Law §2805-d[2][b]). Plaintiff has not present d any evidence to support that her claim of injury 3 [* 3] 3 of 8 FILED: NASSAU COUNTY CLERK 11/24/2021 10:02 AM NO. 157 NYSCEF DOC. DOC. NO. is related to an invasive procedure. As such, cannot be maintained. INDEX 610559/2017 NO. 610559/2017 INDEX NO. RECEIVED NYSCEF: NYSCEF: 11/22/2021 e cause of aciion for lack of informed consent I f Accordingly, the branches of defendan s' motions sJeking summary judgment dismissing the second cause of action for lack of informe consent are RANTED in their entirety. With regard to the remaining cause of ction for meaical malpractice against defendants, North Shore, Burke, and Herman, plaintiff ha been a patie~t of Herman, a gynecologist, since at least February 1998. During her time as his pa ient, plaintiff treated for such things as excessive menstrual bleeding with uterine/endometrial a lations and ih November 2012 he performed a laparoscopy and left salpingo-oophorectomy ti, r ovarian ch6colate cyst and endometriosis. In June 2014 Herman removed two lesions from laintiff s utdrus which pathology determined to be benign. In April 2015 Herman advised plai tiff to have ~ colonoscopy performed but she did i not comply. On November 13, 2015, plaintiff had p in in her rig~t abdomen and went to the emergency room at North Shore where she wa evaluated by Acerra, the attending emergency medicine doctor, and Palmieri, a resident eme gency medicine doctor. After conducting a history and physical examination, Acerra ordered blo9d tests and aiCT scan of the abdomen and pelvis. The white blood cell and neutrophil counts wefe high, indicative of an infection. The CT scan was interpreted by Burke, the attending radiol9gist, and Kafer, a resident radiologist. Burke provided the report, finding, among other thinfs, bilateral soft tissue lesions in the pelvis that may represent endometriosis and recommended a pelvic sonogram. Upon review of the CT scan, Acerra arf.nged for a gynecological consult and then signed plaintiff off to the oncoming attending emergehcy medicine doctor as his shift was ending. Burke's shift was also ending, and the sonogra!m was interpreted by the then attending radiologist, Lee, and Kafer. Lee's findings inc~uded a heterogenous, hypoechoic lesion in the anterior right lower quadrant, corresponding t3 the CT scan findings and consistent with endometriosis. He further found a lesion in thlposterior uterine body to likely be adenomyoma and a complex right hydrosalpinx to correlate linically for a superimposed infection. A gynecological consult was then perfi. rmed in the emergency department. The gynecologist' s impression was that plaintiffs tight lower quadrant pain was likely caused by endometriosis with a possible inflammatory re ponse. The gynecologist did not feel that acute gynecological intervention was required at tha time. Plaintiff was discharged early in the morning on November 14, 2015 with a diagno is of endometriosis and instructions to follow-up with her gynecologist for further evaluation. Plaintiff made the appointment with H rman, as recommended , and saw him the next day, November 16, 2015. Herman performed~ exam, blood tests, and an ultrasound, while also reviewing the labs and radiology reports from 'f.forth Shore. He was not provided with the actual images. Herman's diagnosed plaintiff with an fnfection in her fallopian tube and prescribed Flagyl, an antibiotic. Plaintiff followed up wi Herman on November 20, 2015 and November 27, 2015. Although she still exhibited some a dominal tenderness, it had decreased, plaintiff was 4 [* 4] 4 of 88 FILED: NASSAU COUNTY CLERK 11/24/2021 10:02 AM INDEX 610559/2017 NO. 610559/2017 INDEX NO. 11/22/2021 RECEIVED NYSCEF: NYSCEF: 11/22/2021 157 NYSCEF DOC. NO. 157 DOC. NO. feeling better and her white blood cell count ad decreased to within the normal range. Plaintiff I ' next saw Herman on February 23, 2016, com laining of pelvic pain for the prior two weeks. Lab I results found a normal white blood cell count~ ! On March 3, 2016, plaintiff went to L ng Island Jetish Hospital ("LIJ") complaining of increased abdominal pain. A CT scan found lesions and an endometrial biopsy was performed. The specimen was diagnosed as inactive endo etrium. A sirrgical oncologist performed a colonoscopy, which resulted in a diagnosis of ppendiceal dancer. Surgery was performed at North Shore on March 12, 2016 which remov d the cancer.I Pathology revealed metastatic mucinous adenocarcinoma consistent with ap endiceal origin to the right adnex/ovary, pelvic peritoneal implant, left sigmoid colon and live , consistent }'ith Stage IV disease. Thereafter, 2016. plaintiff underwent chemotherapy from May ough December I I On September 19, 2019, due to a rec ence of the metastatic appendiceal carcinoma, plaintiff underwent surgery at LIJ to remove t , e mass. The~e was no indication that the cancer had spread beyond the abdomen. At North Sh, re on February 12, 2021, as the result of the appendiceal cancer metastasizing, plaintiff un , erwent a le~ frontotemporal craniotomy and gross total excision of a large extra axial tumor whi1h eroded through the cranium and into the brain. With regard to the claim of medical m lpractice ag~nst Herman, plaintiff alleges that Herman departed from accepted standards of dare by treating plaintiff for an infection on November 16, 2015 without performing a lapkoscopy to examine tissue by pathology in order to obtain a definitive diagnosis of the masses fou don the CT scan. Plaintiff additionally contends that Herman failed to obtain a surgical consult and that the delay in diagnosis from November 16, 2015 to March 3, 2016 resulted in injuries. 1 In moving for summary judgment, He an argues that he conformed to the standard of care and that he had previously recommended ~hat plaintiff obtain a colonoscopy which may have revealed the appendiceal cancer, but plaiftifffailed to have one. In support of his motion Herman submits the affirmation of Robert Berg, M.D. ("Berg"), as an expert in gynecology. Berg opines with a reasonable degree of mediqal certainty that the findings of the tests conducted by Herman confirm that his diagnosis of an in:.{ection was reasonable and conformed to the standard of care. Berg affirms that there is no fiagnostic standard that requires tissue or pathology confirmation of a pelvic infection and that prescribing Flagyl is consistent with the standard of care for such an infection. Moreovbr, Berg opines that plaintiff's positive response to the antibiotic confirms the diagnosis. Berg further affirms that although plaintiff had abdominal pain, there were no signs or imaging results thrt evidenced appendicitis. 1 With regard to plaintiffs endometriosi I , Berg opines that Herman was justified in relying on that diagnosis by the radiologists at North Shore based on plaintiffs history and the radiological report. Berg further affirms that his opinion there was no need for immediate treatment of the endometriosis upon successfu treatment of the pelvic infection because plaintiff was not symptomatic. iri 5 [* 5] 5 of 88 FILED: NASSAU COUNTY CLERK 11/24/2021 10:02 AM NO. 157 NYSCEF DOC. DOC. NO. INDEX 610559/2017 NO. 610559/2017 INDEX NO. NYSCEF: 11/22/2021 RECEIVED NYSCEF: i ' Finally, Berg opines that there is no ev dence that t~b cancer metastasized beyond the abdomen from November 2015 through Marc 2016 when plaintiff had surgery. Moreover, at the time of the cancer's recurrence in September 2019 it remained confined to the abdomen. Thus, Herman argues that plaintiffs injuries e the result df cancer that had spread prior to the dates of the alleged malpractice in November 015, and that any alleged delay in treatment I caused no harm. In opposition, plaintiff submits the affi ation of Dful-Arin Silasi, M.D. ("Silasi"), as an expert in gynecological oncology. Silasi, with ut addressing plaintiff's failure to have a colonoscopy as recommended by Herman, opi es that Hern;ian departed from accepted medical standards by treating plaintiff based on a diag osis of a pelvic infection and presuming that the He opines that without further masses were benign endometriosis without do ng further teJting. I testing the diagnosis remained unproven and trat a diagnosi.s of endometriosis was unlikely I because of the ablation performed in 2012. Silasi goes on to opine that the standar • of care req!res that a laparoscopy be performed to examine the masses as the only way to determine whethdr they are malignant or benign, and that a surgical consultation was necessary. In support of this, plaintiff points to Herman performing a laparoscopy in August 2012 wh~n a mass was found in plaintiff's abdomen. Silasi affirms that these departures were a substantia~ factor or proximate cause of the harm allegedly caused to plaintiff, opining that the masses gr9w during the delay in diagnosis, but that timely diagnosis and removal could have decreased of eliminated the chance of future disease. Moreover, Silasi opines that the departure inc11reased the likelihood of the cancer becoming blood borne and spreading to plaintiff's brain. Plaintiff also submits the affirmation o Mark Levin, M.D. ("Levin"), an expert in oncology and internal medicine. Levin opinesJhat the absence of treatment from November 13, 2015 through March 3 and March 12, 2016 w1s a substantial factor and proximate cause in the alleged injury sustained by plaintiff. He belie~s that the cancerous tumors grew during this period, making the eventual surgery more di~9~ult with decreased effectiveness. Levin further opines that the cancer would not have entered rhe blood stream and metastasized to plaintiffs brain had it been treated sooner. In reply, Herman argues, among other hings, that plaintiff's experts failed to address plaintiffs failure to have a colonoscopy in Aptil 2015, as advised by Herman. Herman further argues that plaintiffs expert failed to address ~hat the CT scan of November 13, 2015 and the sonogram ofNovember 14, 2015 showed the ~resence ofhydrosalpinx, which, as affirmed by Berg, is typically associated with a pelvic infection. Herman also argues that as the use of antibiotics improved plaintiffs condition, Silal;i' s argument that a laparoscopy should have been conducted is only in hindsight as the imaging ~vidence provided no reason to do so. Herman additionally argues that Silasi' s assertion that ¥,erman should have followed plaintiff to baseline resolution of presumed infection and perform~d a laparoscopy is misplaced because plaintiff had not entirely returned to baseline, rendering sudh a course of action impossible. Moreover, Herman asserts that it is impossible for anyonJ to know when distant metastasis occurred as there is no evidence as to when the cancer ent I red the blood stream. 6 [* 6] 6 of 8 FILED: NASSAU COUNTY CLERK 11/24/2021 10:02 AM NO. 157 NYSCEF DOC. DOC. NO. INDEX 610559/2017 NO. 610559/2017 INDEX NO. RECEIVED NYSCEF: NYSCEF: 11/22/2021 Based upon these submissions the court finds that t~e parties have adduced conflicting medical expert opinions, rendering summary j I dgment inapfropriate (Feinberg v. Feit, 23 A.D.3d 517 [2nd Dept. 2005]). Questions have een raised as to whether Herman conformed to the standard of care based upon the imaging fi dings ofNotember 13 and November 14, 2015. And even if Herman did not conform there are questions asto whether the failure to do so and the alleged resulting delay in diagnosis and tre tment was a proximate cause of the alleged injury to plaintiff. These issues that have been raised by the confli ting expert opinions can only be resolved by the trier of fact (DiGeronimo v. F: chs, 101 A.D.3d 933 [2nd Dept. 2012]; see also ! Hayden v. Gordon, 91 A.D.3d 819 [2nd Dept. 012]). ary judgment is DENIED. Accordingly, Herman's motion for su I ' In support of their motion for summ 1 judgment North Shore and Burke submit the affirmations of Denise Nassisi, M.D. ("Nassis'"), an emergJncy medicine expert; Michael Sadler, M.D. ("Sadler"), a radiology expert; d William Btrrke, M.D. ("expert Burke"), a gynecologic oncology expert. All of the expe s opine that *orth Shore and Burke adhered to causing the injuries alleged by plaintiff. ! Nassisi affirms that the North Shore e , ergency medicine providers followed accepted medical standards in evaluating plaintiff and allininistering tests. A definitive diagnosis was not made, and plaintiff was advised to follow up tth her treating gynecologist. Sadler affirms that the CT and sonogr~ performed at North Shore were performed, interpreted, and reported in accordance with accepted medical standards. He opines that such tests can only provide a presumptive diagnosiJ and that a definitive diagnosis requires a biopsy for pathological assessment. Sadler affirms th~t Burke, in his report, advised plaintiffs treating physicians of the findings and the need for additional testing. Expert Burke affirms that the gynecolo~ consult was performed in conformance with accepted medical standards. He opines that thd consultant's presumptive diagnosis of endometriosis was reasonable based upon pla~~tiffs history, labs, and radiologic imaging reports. Moreover, expert Burke affirms that t~e consultant properly instructed plaintiff to follow up with her gynecologist. Expert Burke further opines that the alleged delay in diagnosis would not have changed plaintiffs treatment, staging!, outcome, prognosis, or life expectancy, and that e resulted. the same surgery and chemotherapy would ha~ 1 In opposition, plaintiff submits the affi ation of Benjamin Seckler, M.D. ("Seckler"), an expert in radiology. Seckler opines that Burke deviated from accepted standards of medical practice by failing to include in his report a fi~ding of neoplasm, which was contained in his differential diagnosis during the review of the cT scan. Seckler affirms that such inclusion would have led to a recommendation for furthyr evaluation to rule out malignancy. Seckler also affirms that Lee departed from accepted standards by failing to state in his impression that the heterogeneous hypoechoic lesion identified in the sonogram could be a malignancy, which would have resulted in further testing to rule i out. Seckler opines that these departures resulted 1 7 [* 7] 7 of 88 INDEX 610559/2017 NO. 610559/2017 INDEX NO. FILED: NASSAU COUNTY CLERK 11/24/2021 10:02 AM NYSCEF DOC. NO. 157 DOC. NO. RECEIVED NYSCEF: NYSCEF: 11/22/2021 ' in a delay in diagnosis, which was a substanti factor or prbximate cause of injury to plaintiff as I the cancer was allowed to spread. I Plaintiff also submits the affirmation o Mark Levin~ M.D. ("Levin"), an expert in oncology and internal medicine. Levin opinest1hat even if i~ is accurate that plaintiffs cancer was at Stage IV in both November 2015 and Marc 2016, ifthelsurgery had been performed earlier, plaintiffs prognosis would have been more fa arable. Levih further affirms that the delay increased the likelihood of the cancer becoming blood bomb, opining that an earlier diagnosis would have prevented the cancer from metast~sizing to plaihtiff' s brain. As such, Levin believes or p r o ~ cause of injwy to plainti!I that the delay in diagnosis was a substantial ,tor In reply North Shore and Burke argue ti:at the delayiin diagnosis is not statistically significant, predictive, or prognostic ofplaintif:s survival r outcome, and that claims to the contrary are contradicted by peer reviewed merical literatu e referenced by expert Burke. Moreover, North Shore and Burke assert that ~y claim tha~ the delay worsened plaintiff's condition is moot because plaintiff has now suwassed the five year survival period. North Shore and Burke also contend that it is moot whetherl the radiologists included the possibility of malignancy within their impression because H~rman testified at his deposition that he considered that the identified lesions could be malignant. In reviewing the submissions, it is app¥ent that plaintiff's claim of medical malpractice against North Shore and Burke hinges on the dlaim that the radiology report, which was relied upon by Herman, failed to include a mention ~f neoplasm, and that if it had, further testing for malignancy would have been conducted, leading to an earlier diagnosis of plaintiff's cancer. North Shore and Burke have established entitlbment to summary judgment by demonstrating that even if the failure to include neoplasm in the rbport is a departure from standard medical practice, it did not result in the alleged delay i~ diagnosis as Herman testified at his deposition that he considered that the lesions could be malignant when he saw plaintiff the very next day, November 16, 2015. This renders moot the iss~e of whether neoplasm should have been mentioned in the report, and plaintiff has faile4 to offer any evidence that would raise a triable question of fact related to this issue. As such, the alleged failure to mention neoplasm in the radiology report is not a substantial factor or ptoximate cause of plaintiffs alleged injury and ~ summary judgment is warranted. . Accordingly, North Shore and Burke'slmotion for summary judgment is GRANTED in . its entirety. This constitutes the decision and order pf this court. Dated: November 22, 2021 Mineola, New York ENTER: 8 ENTER ED Nov 24 2021 NASSAU COUNTY COUNTY CLERK"S OFFICE [* 8] 8 of 8

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