| Bennett v Long Is. Jewish Med. Ctr. |
| 2008 NY Slip Op 04823 [51 AD3d 959] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Troy R. Bennett, Respondent, v Long Island JewishMedical Center et al., Appellants. |
—[*1] Oshman & Mirisola, LLP, New York, N.Y. (David L. Kremen of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice, the defendants appealfrom so much of an order of the Supreme Court, Queens County (Price, J.), entered November22, 2006, as granted that branch of the plaintiff's cross motion which was for leave to amend thecomplaint to assert a cause of action sounding in negligence.
Ordered that the order is affirmed insofar as appealed from, with costs.
In January 2002, while taking part in a clinical trial conducted by the defendant Dr. Mark J.Shikowitz at the facilities of the defendant Long Island Jewish Medical Center (hereinafter LIJ),the plaintiff underwent a CT scan of his lungs. Although the scan report revealed nothing ofconsequence with respect to the limited subject matter of the clinical trial, it specifically noted a"2 cm cyst in the right lobe of the thyroid." Dr. Shikowitz, however, did not review the scanreport and so failed to discover the existence of the cyst. At his deposition, Dr. Shikowitzconceded that, had he known of the cyst, he would have referred the plaintiff to a thyroid surgeonfor further evaluation.
Approximately two years later, in January 2004, the plaintiff obtained from LIJ a copy of hismedical file. Upon reading the CT scan report, the plaintiff first learned of the existence of thecyst. [*2]Shortly thereafter, he was diagnosed with thyroid cancer.
The plaintiff subsequently commenced this action against the defendants, inter alia, torecover damages for medical malpractice. The defendants moved, among other things, forsummary judgment dismissing the complaint as time-barred, and the plaintiff cross-moved, interalia, for leave to amend the complaint to assert a cause of action sounding in negligence. TheSupreme Court, among other things, dismissed the medical malpractice cause of action astime-barred, and granted leave to assert a negligence cause of action. The defendants appeal fromso much of the order as granted leave to amend the complaint. We affirm.
The Supreme Court providently exercised its discretion in granting the plaintiff leave toamend his complaint to assert a cause of action sounding in negligence. "Leave to amend orsupplement pleadings should be freely granted unless the amendment sought is palpablyimproper or insufficient as a matter of law, or unless prejudice and surprise directly result fromthe delay in seeking the amendment" (Maloney Carpentry, Inc. v Budnik, 37 AD3d 558 [2007]; seeCPLR 3025 [b]; Lucido v Mancuso,49 AD3d 220 [2008], lv granted 2008 NY Slip Op 68750[U] [2d Dept 2008]).On the facts presented, we cannot characterize as palpably improper or insufficient as a matter oflaw the amendment alleging that the defendants were negligent in failing to review the CT scanreport and apprise the plaintiff of the results (see Mosezhnik v Berenstein, 33 AD3d 895, 898 [2006];Glasheen v Long Is. Diagnostic Imaging, 303 AD2d 365, 367 [2003]; Yaniv v Taub,256 AD2d 273, 274 [1998]; Matter of Caracci v State of New York, 178 AD2d 876,877 [1991]).
"A defendant may be held liable for ordinary negligence upon his or her failure tocommunicate significant medical findings to a patient" (Mosezhnik v Berenstein, 33AD3d at 898; see Glasheen v Long Is. Diagnostic Imaging, 303 AD2d 365 [2003]).Although a medical judgment certainly would have been required to determine the significanceof the CT scan results (see Russo v Shah, 278 AD2d 474, 475 [2000]), one need not havea medical degree to conclude that the plaintiff should have been informed of those results (seeMatter of Caracci v State of New York, 178 AD2d at 877). He was not so informed,however, because Dr. Shikowitz allegedly failed to review the CT scan report, and therebymissed the opportunity to form any medical judgment (cf. Huntley v State of New York,62 NY2d 134, 137 [1984]).
The record presented does not permit resolution as a matter of law of the question whether,under the particular facts of this case, Dr. Shikowitz's alleged failure to review the CT scanconstituted medical malpractice, in which case the plaintiff's claim would be time-barred, or,instead, was the result of ordinary negligence, in which case the claim would be timely.However, because we can say that, on this record, the assertion of a still-timely cause of actionsounding in ordinary negligence is not palpably improper or insufficient as a matter of law andwould not result in prejudice or surprise, we affirm the order granting the plaintiff leave to amendhis complaint to assert such a cause of action.
The defendants' remaining contention was not raised before the motion court and, therefore,is not properly before us. Skelos, J.P., Fisher, Dillon and McCarthy, JJ., concur.