Opinion
113259/04.
Decided January 14, 2008.
In this motion, Defendants Bala R. Subramanyam, M.D. ("Dr. Subramanyam") and Dr. Bala R. Subramanyam Radiology, P.C. ("the P.C.") move for summary judgment pursuant to CPLR 3212. Defendant Dr. Andrew Stiber ("Dr. Stiber") opposes their motion, and cross-moves for summary judgment in his favor. Plaintiffs Phyllis Unger, as Administratrix of the Estate of Betty Hollander ("Mrs. Hollander"), and Jack Hollander ("Mr. Hollander") (collectively, "the Plaintiffs") oppose both applications.
BACKGROUND
On February 1, 2001, then 75-year old Mrs. Hollander complained of vaginal staining to Dr. Stiber. See, Shatynski Aff in Opp at 6 , ¶ 22. Dr. Stiber ordered a dilation and curettage of the uterus, which was performed at NYU Tish Hospital. The pathology report showed an endometrial polyp and tissue that was insufficient for diagnosis. Dr. Stiber reported that the lack of tissue was "reassuring." Id at 7, ¶ 25.
On July 18, 2002, Mrs. Hollander complained to Dr. Stiber of vaginal staining. He performed a pap smear, which revealed atypical glandular cells. See, Antico Aff at 4, ¶ 16. On August 12, 2002, he performed a cervical biopsy, which indicated a decrease in the membrane around the uterine cervical canal known as the exocervix. The test results were found to be otherwise benign. Id.
In order to find other, non-cancerous causes for the atypical glandular cells, Dr. Stiber referred Mrs. Hollander to the P.C. for a pelvic sonogram. Id at 6, ¶ 17 Dr. Subramanyam, the P.C.'s sole shareholder, performed a transvaginal sonogram on Mrs. Hollander's pelvis and observed that her 3-millimeter-thick endometrium had no visible abnormalities. Id., ¶ 19. His impression was that she had a clarified fibroid uterus, which was benign, and sent the results to Dr. Stiber. Moreover, since the endometrium's thickness was normal, he did not find her vaginal bleeding "worrisome." See, Shatynski Aff in Opp, Ex F.
Mrs. Hollander continued to see Dr. Stiber for her post-menopausal bleeding. On July 21, 2003, Dr. Stiber referred Mrs. Hollander again to Dr. Subramanyam for a pelvic sonogram. Id. at 7, ¶ 21. Dr. Subramanyam conducted the test on July 29, 2003, and noted no changes other than that the endometrium decreased to 2-millimeters thick.
On October 16, 2003, Mrs. Hollander, then 82 years old, complained about vaginal bleeding to Dr. Stiber. He performed an endometrial biopsy, and diagnosed her with endometrial cancer in November 2003.
Ms. Hollander began radiation treatment under the care of Dr. Bhavana Pothuri at Columbia Medical Center. The cancer spread to both her lungs and brain. Id. Ex I. She subsequently began to experience seizures as her mental status deteriorated before she passed away on December 27, 2005. Id.
This medical malpractice action was commenced on September 14, 2004 prior to Mrs. Hollander's death. In the first cause of action, the Plaintiffs allege that Dr. Stiber, Dr. Subramanyam, and the P.C. departed from the ordinary care-standard in rendering medical treatment to Mrs. Hollander because they failed to diagnose the endometrial cancer earlier. In the second cause of action, Mr. Hollander alleges that he was deprived of Mrs. Hollander's consortium as a result of the Defendants' negligence and malpractice.
In this motion, Dr. Subramanyam and the P.C. argue that the treatment they rendered to Mrs. Hollander was within acceptable medical standards and summary judgment should be granted in their favor pursuant to CPLR 3212. Dr. Stiber argues in the cross-motion that there is no triable issue of fact that he acted within the boundaries of gynecological standards in treating Mrs. Hollander, and that issues of fact remain as to whether Dr. Subramanyam and the P.C. departed from the standards of acceptable radiological practice. The Plaintiffs oppose the motion and cross-motion for summary judgment.
ANALYSIS
Summary judgment is a drastic remedy that should not be granted if there is any doubt as to the existence of a triable issue of fact. See, Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978); see also, Greenidge v. HRH Constr. Corp., 279 AD2d 400, 403 (1st Dept. 2001); DuLuc v. Resnick, 224 AD2d 210, 211 (1st Dept. 1996). Indeed, because summary disposition deprives a party of a day in court, relief should not be granted where an issue of fact is even arguable. See, Henderson v. City of New York, 178 AD2d 129, 130 (1st Dept. 1991). Further, "on a defendant's motion for summary judgment, opposed by plaintiff, [the court is] required to accept the plaintiff's pleadings, as true, and [its] decision must be made on the version of the facts most favorable to [plaintiff].'" Byrnes v. Scott, 175 AD2d 786, 786 (1st Dept. 1991).
The proponent of a summary judgment motion has the burden of making a prima facie showing of entitlement to judgment as a matter of law. See, Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986). Once the movant has made this showing, the burden then shifts to the opponent to establish, through competent evidence, that there is a material issue of fact that warrants a trial. Id.
General allegations of medical malpractice that are unsupported by competent medical evidence are insufficient to defeat a motion for summary judgment. See, Neuman v. Greenstein, 99 AD2d 1018 (1st Dept. 1984). Thus, on a motion for summary judgment where a medical malpractice defendant demonstrates that treatment was provided in accordance with accepted standards of medical practice, the plaintiff must respond with medical evidence establishing a departure from accepted medical procedure. See, Alvarez v. Prospect Hosp., 68 NY2d, at 327.
Dr. Subramanyam and the P.C.'s Motion
Dr. Subramanyam and the P.C. argue that their treatment of Mrs. Hollander comported with acceptable medical standards. In support of their contention, they offer Dr. Subramanyam's affidavit, who attests that:
"On September 6, 2002, I performed a real-time transvaginal sonogram of the decedent's pelvis * * * I observed the decedent's endometrium to have no visible abnormalities, or meet the criteria for an abnormal endometrium, and her right and left ovaries to be normal, with no free fluid found in the cul-de-sac.
* * *
"I saw the patient for the final time on July 29, 2003. At that time, I performed a real-time transvaginal sonogram of the pelvis. * * * I noted that the decedent had a fibroid uterus and that the study reflected no changes since the study performed on September 6, 2002.
* * *
"No abnormalities relevant to endometrial cancer or any criteria for suspecting endometrial abnormalities were noted during the real-time transvaginal sonogram studies * * * Furthermore, the static images that were obtained during these studies do not indicate any signs of cancer.
* * *
"It is my opinion, within a reasonable degree of medical certainty, that the transvagibnal sonograms that I performed on the decedent were performed in accord with good and acceptable sonographic practice, and did not demonstrate any significant abnormalities or any changes that may be associated with endometrial cancer."
Antico Aff., Ex. A, Subramanyam Aff'd.
Based on their submission, Dr. Subramanyam and the P.C. have established a prime facie showing of entitlement to judgment as a matter of law. The burden now shifts to Dr. Stiber and the Plaintiffs, the motion's opponents, to raise triable factual issues warranting its denial.
Dr. Stiber offers the affidavit of Beth Gross, M.D, a New York-licensed physician. She opines that
"* * * Within a reasonable degree of medical certainty, the interpretation of the September 6, 2002 transvaginal sonogram failed to report a small amount of fluid in the endometrial cavity outlining an area suspicious for an endometrial polyp.
***
"Based upon my review of the sonogram for that day, and based upon my training and experience, the static images of the decedent endometrium are suspicious for an abnormality and do not meet criteria for reporting a normal endometrium."
Kirzner Aff., Ex. H, Gross Aff'd.
In addition, Dr. Stiber proffers the affidavit of Victor R. Klein, M.D. ("Dr. Klein"), a New York-Board Certified Obstetrician/Gynecologist, who attests that
"It is my opinion based upon a reasonable degree of medical certainty that the failure of Dr. Subramanyam to report an abnormal sonogram with respect to the findings of September 6, 2002 was the proximate cause of the decedent's injuries and death."
Id., Ex. I, Klein Aff'd.
The Plaintiffs, for their part, submit the affidavit of a New York-Board certified radiologist who opines that
"It is my opinion to a reasonable degree of medical certainty that Dr. Subramanyam departed from acceptable standards of medical care in failing to properly report the results of Mrs. Hollander's September 6, 2002 ultrasound since the report fails to reference the presence of fluid outlining a small polyp in the endometrial cavity. This is an abnormal finding and should have been reported in Dr. Subramanyam's dictated report."
Shatynski Aff., Ex B.
Here, Dr. Stiber and the Plaintiffs' opposition papers contain sufficient expert affidavits that challenge Dr. Subramanyam's opinion that the sonogram's results did not indicate anything abnormal. Accordingly, this Court is presented with an issue of fact as to Dr. Subramanyam's alleged malpractice. Therefore, Dr. Subramanyam and the P.C.'s motion for summary judgment must be denied. See, Prigorac v. Park ,20 AD3d 363 (1st Dept. 2005); See also, Frobose v. Weiner , 19 AD3d 258 (1st Dept. 2005); Santiago v. Brandeis , 309 AD2d 621, 622 (1st Dept. 2003).
Dr. Stiber's Cross-Motion
In support of his cross-motion for summary judgment, Dr. Stiber submits Dr. Klein's affidavit. Dr. Klein opines that
"I can state upon a reasonable degree of medical certainty that Dr. Stiber in his care and treatment of Betty Hollander at all times acted within the standards of accepted gynecological care as it existed at the time. None of the actions by Dr. Stiber were the proximate cause of her injuries.
***
"In response to Betty Hollander's complaints of vaginal bleeding, Dr. Stiber performed the appropriate work up including * * * a dilation and curettage and referral for a transvaginal sonogram.
***
"Dr. Stiber, in his work up of Betty Hollander for postmenopausal bleeding, at all times acted within the standard of care as they existed at the time. It is my opinion based upon a reasonable degree of medical certainty that had Dr. Stiber been made aware of an abnormal sonogram of September 6, 2002, a further workshop for postmenopausal bleeding would have been ensued."
Kirzner Aff., Ex I, Klein Aff'd.
In opposition, the Plaintiffs proffer the affirmations of a New York board-certified gynecologist and a board-certified oncologist. The gynecologist opines that
"It is my opinion that to a reasonable degree of medical certainty that Dr. Stiber departed from accepted standards of medical care in failing to diagnose Mrs. Hollander's endometrial cancer. Specifically, Dr. Stiber departed from accepted standards of care in improperly interpreting the results of the pathology report regarding the 7/25/02 pathology report and the pathology report of the D C performed on 8/12/02; in failing to perform a D C with a hysteroscopy prior and subsequent to receiving the results of the 7/25/02 pathology report and in continuing the use of Estring in the unexplained post menopausal bleeding.
***
"It is also my opinion to a reasonable degree of medical certainty that had Dr. Stiber diagnosed Mrs. Hollander's endometrial cancer in 2001, metastasis of the endometrial cancer would have been prevented and [her death] would have been avoided."
Shatynski Aff in Opp, Ex A.
The oncologist similarly opines that
"Dr. Stiber's failure to properly interpret the pathology reports; Dr. Stiber's failure to perform D C via hysteroscopy; Dr. Stiber's use of Estring in the
presence of PMB * * * were substantial contributing factors to the delay in diagnosis of Mrs. Hollander's endometrial cancer."
Id., Ex C.
Once again, conflicting affidavits preclude summary judgment disposition. While Dr. Stiber made a prime facie showing that the care he provided Mrs. Hollander was consistent with acceptable-medical standards, the Plaintiffs present contrary evidence from equally-competent experts. Accordingly, Dr. Stiber's cross-motion for summary judgment disposition is denied.
Accordingly, it is
ORDERED that the motion for a summary judgment is DENIED; and it is further
ORDERED that the cross-motion for summary judgment is DENIED.
This constitutes the Decision and Order of the Court.