| Ozimek v Staten Is. Physicians Practice, P.C. |
| 2012 NY Slip Op 08498 [101 AD3d 833] |
| December 12, 2012 |
| Appellate Division, Second Department |
| Nancy A. Ozimek et al., Appellants, v Staten IslandPhysicians Practice, P.C., et al., Defendants, and Shashikant Kulkarni,Respondent. |
—[*1] Gerspach Sikoscow, LLP, New York, N.Y. (Alexander Sikoscow of counsel), forrespondent.
In an action to recover damages for medical malpractice and lack of informed consent, etc.,the plaintiffs appeal from an order of the Supreme Court, Richmond County (McMahon, J.),dated June 21, 2011, which granted the motion of the defendant Shashikant Kulkarni forsummary judgment dismissing the complaint insofar as asserted against him as time-barred.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantShashikant Kulkarni for summary judgment dismissing the complaint insofar as asserted againsthim as time-barred is denied.
On March 10, 2007, the plaintiff Nancy A. Ozimek (hereinafter the injured plaintiff)underwent a mammogram at the office of the defendant Staten Island Physicians Practice, P.C.(hereinafter SIPP). The mammogram was studied by the defendant Shashikant Kulkarni, aradiologist employed by SIPP. In letters to the injured plaintiff dated March 22, 2007, and June 9,2007, respectively, Kulkarni informed the injured plaintiff that the mammogram "showed afinding" that required additional examination, and requested that the injured plaintiff contact hisoffice to schedule an "important follow-up visit." On July 10, 2007, the injured plaintiff returnedto SIPP for a follow-up visit. A mammogram was performed, but because there was noradiologist on site, the defendant Taksin Ratnarathorn, another doctor at SIPP, recommended thatthe injured plaintiff undergo additional examination and an ultrasound at an additional follow-upvisit. The injured plaintiff returned to SIPP for an ultrasound on July 27, 2007. In a report datedJuly 27, 2007, Ratnarathorn noted the existence of cysts and lymph nodes in and around theinjured plaintiff's breasts, but stated that these cysts and lymph nodes appeared benign.Ratnarathorn recommended a routine follow-up mammogram in one year. On August 9, 2008,the injured plaintiff returned to SIPP for a screening. In a report dated August 14, 2008, RobertAndrews, another doctor at SIPP, noted that the findings in the injured plaintiff's breasts were"benign in appearance," and recommended a routine follow-up mammogram in one year. Theinjured plaintiff was diagnosed with breast cancer in the spring of 2009.
On January 11, 2010, the plaintiffs commenced this action against Kulkarni, among others,alleging that Kulkarni was negligent in failing to appreciate the serious nature of the [*2]developing mass in the injured plaintiff's right breast after themammogram of March 10, 2007, and failing to timely recommend that the injured plaintiff go toa surgeon to biopsy the mass in the right breast after the mammogram of March 10, 2007. TheSupreme Court granted Kulkarni's motion for summary judgment dismissing the complaintinsofar as asserted against him as time-barred, and the plaintiffs appeal.
Kulkarni established his prima facie entitlement to judgment as a matter of law bydemonstrating that the action was commenced more than two years and six months after thealleged acts and omissions which constituted the malpractice cause of action insofar as assertedagainst him (see Cox v Kingsboro Med. Group, 88 NY2d 904, 906 [1996]; Rosenthal v So, 72 AD3d 784,784-785 [2010]; Mule v Peloro, 60AD3d 649, 650 [2009]). However, in opposition, the plaintiffs raised a triable issue of factas to whether the injured plaintiff was undergoing a continuous course of treatment with respectto the nodules in her breasts at least through July 27, 2007, which is less than two years and sixmonths prior to the commencement of this action (see CPLR 214-a; Cherise v Braff, 50 AD3d 724,726 [2008]; Sosnoff v Jackman, 45AD3d 568, 570 [2007]; Texeria vBAB Nuclear Radiology, P.C., 43 AD3d 403, 404-405 [2007]). Although Kulkarnipresented evidence that he left the employ of SIPP on July 6, 2007, and did not personally treatthe injured plaintiff after that date, the " 'continuous treatment doctrine may be applied to aphysician who has left a medical group, by imputing to him or her the continued treatmentprovided by subsequently-treating physicians in that group' " (Mule v Peloro, 60 AD3d at650, quoting Solomonik v Elahi, 282 AD2d 734, 735 [2001]; see Watkins vFromm, 108 AD2d 233, 239-242 [1985]). Accordingly, the Supreme Court should havedenied Kulkarni's motion for summary judgment dismissing the complaint insofar as assertedagainst him as time-barred.
In light of our determination, we need not reach the plaintiffs' remaining contention.Angiolillo, J.P., Balkin, Lott and Roman, JJ., concur.