| Donnelly v Parikh |
| 2017 NY Slip Op 03731 [150 AD3d 820] |
| May 10, 2017 |
| Appellate Division, Second Department |
[*1]
| Jaye Donnelly, Appellant, v Surakant Parikh, M.D., etal., Defendants, and Long Island Medical Imaging, P.C., et al.,Respondents. |
Pegalis & Erickson, LLC, Lake Success, NY (Robert V. Fallarino and Linda M. Olivaof counsel), for appellant.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY (Christopher Simone, TiffanyA. Miao, and Jonathan P. Shaub of counsel), for respondents Long Island Medical Imaging, P.C.,Long Island Magnetic Resonance Imaging, P.C., and Albert Zilkha.
Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman and Merril Biscone of counsel), forrespondents John A. Saugy and Suffolk Orthopaedic Associates, P.C.
Appeal from an order of the Supreme Court, Suffolk County (Jeffrey Arlen Spinner, J.),dated August 19, 2014. The order, insofar as appealed from, granted the motion of the defendantsJohn A. Saugy and Suffolk Orthopaedic Associates, P.C., for summary judgment dismissing thecomplaint insofar as asserted against them and the separate motion of the defendants AlbertZilkha, Long Island Medical Imaging, P.C., and Long Island Magnetic Resonance Imaging, P.C.,for summary judgment dismissing the complaint insofar as asserted against the defendant AlbertZilkha and so much of the complaint as alleged that the defendants Long Island Medical Imaging,P.C., and Long Island Magnetic Resonance Imaging, P.C., were vicariously liable for the acts oromissions of the defendant Albert Zilkha.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondents appearing separately and filing separate briefs.
The plaintiff commenced this action to recover damages for medical malpractice and lack ofinformed consent against, among others, the defendants Albert Zilkha and Joel D. Reiter, whowere radiologists employed by the defendants Long Island Medical Imaging, P.C. (hereinafterLong Island Medical), and Long Island Magnetic Resonance Imaging, P.C. (hereinafter LongIsland MRI), and the defendant John A. Saugy, an orthopedic surgeon employed by the defendantSuffolk Orthopaedic Associates, P.C. (hereinafter together the Saugy defendants). The plaintiffalleged, inter alia, that Zilkha negligently failed "to timely identify a malignant process in the leftlung of the plaintiff evidenced by [an MRI] performed on or about August 7, 2007," andnegligently failed "to note the presence of a mass in the left lung." Moreover, the plaintiff allegedthat Saugy departed from accepted medical practice in, among other things, misinterpreting Xrays of her shoulder, "failing to document any pathology in the lung," "failing to diagnose lungcancer," and "negligently [*2]diagnosing shoulder impingementsyndrome" and "rotator cuff pain."
In the order appealed from, the Supreme Court, inter alia, granted the Saugy defendants'motion for summary judgment dismissing the complaint insofar as asserted against them. Inaddition, the court granted the separate motion of Zilkha, Long Island Medical, and Long IslandMRI for summary judgment dismissing the complaint insofar as asserted against Zilkha and somuch of the complaint as alleged that Long Island Medical and Long Island MRI werevicariously liable for Zilkha's acts or omissions. We affirm the order insofar as appealedfrom.
"Medical malpractice actions require proof that the defendant physician deviated or departedfrom the accepted community standards of practice, and that such deviation was a proximatecause of the plaintiff's injuries" (Bongiovanni v Cavagnuolo, 138 AD3d 12, 16 [2016]; see Trauring v Gendal, 121 AD3d1097, 1097 [2014]). "When moving for summary judgment, 'a defendant doctor has theburden of establishing the absence of any departure from good and accepted medical practice orthat the plaintiff was not injured thereby' " (Trauring v Gendal, 121 AD3d at1097, quoting Rebozo v Wilen, 41AD3d 457, 458 [2007]; see Meadev Yland, 140 AD3d 931, 932-933 [2016]). " 'Once a defendant physician hasmade such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triableissue of fact, . . . but only as to the elements on which the defendant met the primafacie burden' " (Leigh vKyle, 143 AD3d 779, 781 [2016], quoting Gillespie v New York Hosp. Queens, 96 AD3d 901, 902 [2012]; see Stukas v Streiter, 83 AD3d 18,24 [2011]).
" 'Although physicians owe a general duty of care to their patients, that duty may belimited to those medical functions undertaken by the physician and relied on by thepatient' " (Meade v Yland, 140 AD3d at 933, quoting Chulla v DiStefano,242 AD2d 657, 658 [1997]; see Burns vGoyal, 145 AD3d 952, 954 [2016]). "[T]he question of whether a physician owes a dutyto the plaintiff is a question for the court, and is 'not an appropriate subject for expertopinion' " (Burns v Goyal, 145 AD3d at 954, quoting Burtman v Brown, 97 AD3d 156,161 [2012]).
Here, the Saugy defendants submitted, inter alia, a detailed affirmation of an expertorthopedic surgeon, who opined that Saugy properly diagnosed the plaintiff with left rotator cuffdisorder, and that the plaintiff's symptoms, a physical examination, and positive findings on Xrays and an MRI of the left shoulder were consistent with Saugy's impression of shoulderimpingement syndrome. In addition, the expert opined, among other things, that Saugy, as anorthopedist, appropriately obtained X rays of the plaintiff's left shoulder that "were optimized forthe bone" and did not "show any evidence whatsoever of a lung tumor." Accordingly, the Saugydefendants made a prima facie showing that Saugy did not deviate from the accepted standard ofcare in the field of orthopedic surgery in his evaluation and treatment of the plaintiff's shoulder(see Leigh v Kyle, 143 AD3d at 782; Shields v Kleiner, 93 AD3d 710, 712 [2012]). Moreover, the Saugydefendants established, prima facie, that Saugy's duty of care as an orthopedic surgeon did notextend to the alleged departures in failing to discover the plaintiff's lung cancer. Theirsubmissions demonstrated, inter alia, that the plaintiff remained under the care of her primarycare physician, who had referred the plaintiff to Saugy after diagnosing a rotator cuff tear, andthat Saugy's role was limited to evaluating and treating her orthopedic issues (see Chin v Long Is. Coll. Hosp., 119AD3d 833, 834 [2014]; Zeldin vMichaelis, 105 AD3d 641, 641-642 [2013]; Dombroski v Samaritan Hosp., 47 AD3d 80, 86 [2007]; Yasin vManhattan Eye, Ear & Throat Hosp., 254 AD2d 281, 282 [1998]).
In opposition to the Saugy defendants' prima facie showing, the plaintiff failed to raise atriable issue of fact as to whether Saugy deviated from the standard of care in the field oforthopedic surgery in his treatment of the plaintiff, or whether Saugy assumed a duty of carebeyond the evaluation and treatment of the plaintiff's orthopedic issues. Contrary to the Saugydefendants' contention, the affirmation of the plaintiff's expert radiologist was not deficient byreason of the redaction of the expert's name, since the unredacted original was offered to theSupreme Court for in camera inspection, as is required (see Turi v Birk, 118 AD3d 979, 980 [2014]; Cerny v Williams, 32 AD3d 881,886 [2006]). However, where, as here, " 'a physician opines outside his or her area ofspecialization, a foundation must be laid tending to support the reliability of the opinionrendered' " (Shashi v SouthNassau Communities Hosp., 104 AD3d 838, 839 [2013], quoting Bey v Neuman, 100 AD3d 581,582 [2012]; see Bongiovanni v Cavagnuolo, 138 AD3d at 18; Bjorke v Rubenstein, 53 AD3d519, 520 [2008]). [*3]The plaintiff's expert, a board-certifiedradiologist, did not indicate any familiarity with the standards of orthopedic care. Moreover, theexpert's opinion that Saugy assumed a duty to discover the plaintiff's lung cancer was a bare legalconclusion that is unsupported by the record and insufficient to raise a triable issue of fact(see Burns v Goyal, 145 AD3d at 954; Leigh v Kyle, 143 AD3d at 783; cf. Olgun v Cipolla, 82 AD3d1186, 1187 [2011]).
Accordingly, the Supreme Court properly granted the Saugy defendants' motion for summaryjudgment dismissing the complaint insofar as asserted against them.
Contrary to the contention of Zilkha, Long Island Medical, and Long Island MRI (hereinaftercollectively the Zilkha defendants), they failed to demonstrate that Zilkha, as a radiologist, didnot owe a duty to the plaintiff to discover and note the mass allegedly visible on the MRI filmsinterpreted by him (cf. Meade v Yland, 140 AD3d at 933; Covert v Walker, 82 AD3d 825,826 [2011]; Dockery v Sprecher, 68AD3d 1043, 1045-1046 [2009]). However, the Zilkha defendants' submissions, whichincluded Zilkha's deposition testimony, established, prima facie, that Zilkha's interpretation of theMRI did not depart from the radiologic standard of care (see DeGiorgio v Racanelli, 136 AD3d 734, 737 [2016]; Garbowski v Hudson Val. Hosp. Ctr.,85 AD3d 724, 726 [2011]). The submissions demonstrated, among other things, that theplaintiff's tumor would present on an MRI "as a mass in the apex of the lung," and that none ofthe MRI films interpreted by Zilkha on August 7, 2007, showed the apex of the lung (see Lyons v DeNise, 118 AD3d554, 554 [2014]).
In opposition to the Zilkha defendants' prima facie showing with respect to the element ofdeparture, the plaintiff failed to raise a triable issue of fact as to whether the MRI filmsinterpreted by Zilkha showed the apex of the plaintiff's left lung, where the tumor was located.While her expert's board certification in the field of radiology was sufficient to demonstrate theexpert's specialized skills (see Bongiovanni v Cavagnuolo, 138 AD3d at 18; Bell v Ellis Hosp., 50 AD3d 1240,1242 [2008]), the plaintiff's expert failed to address the evidence that the plaintiff's tumorpresented on an MRI taken in October 2008 as a mass in the left lung apex, that none of the MRIfilms interpreted by Zilkha in August 2007 showed the apex of the lung, and that "the lateral,upper part of the lung" seen on some of the August 2007 MRI images was "not the apex of thelung." Under the circumstances, the opinion of the plaintiff's expert radiologist that the plaintiff'stumor was visible on the MRI films taken in August 2007 as "a left lung mass . . . inthe lateral left upper lobe adjacent to the chest wall" was conclusory and failed to raise a triableissue of fact as to whether Zilkha departed from accepted medical practice (see Lyons vDeNise, 118 AD3d at 554; Rivers vBirnbaum, 102 AD3d 26, 44 [2012]).
Thus, the Supreme Court properly granted the Zilkha defendants' motion for summaryjudgment dismissing the complaint insofar as asserted against Zilkha and so much of thecomplaint as alleged that Long Island Medical and Long Island MRI were vicariously liable forZilkha's acts or omissions. Dillon, J.P., Roman, Cohen and Miller, JJ., concur. [Prior CaseHistory: 2014 NY Slip Op 32279(U).]