Opinion
Index No. 518206/2021 Mot. Seq. Nos. 2-3
04-16-2024
Boris Akimov and Eugenia Akimova, Plaintiffs, v. Ilya Bilik, M.D.. F.A.C.P., Boris Khorets, M.D., NYU Langone Health System, and Sheepshead Bay Medical Associates, Defendants.
Unpublished Opinion
At an IAS Term, Part 63 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 16th day of April, 2024.
PRESENT: HON. ELLEN M. SPODEK, Justice.
DECISION, ORDER, AND JUDGMENT
Ellen M. Spodek Judge:
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion, Affirmations (Affidavits), and Exhibits Annexed.............................. 37-58; 59-78
Affirmations (Affidavits) in Opposition and Exhibits Annexed.............................. 79-84; 85-90
Reply Affirmations.................................. 91; 92
In this action to recover damages for medical malpractice and loss of services, defendants Ilya Bilik, M.D., F.A.C.P. ("Dr. Bilik"), and NYU Langone Health System ("NYU-Langone") jointly, and defendants Boris Khorets, M.D. ("Dr. Khorets"), and Sheepshead Bay Medical Associates, P.C., sued herein as Sheepshead Bay Medical Associates ("SBMA" and collectively with Dr. Khorets, the "Khorets defendants") likewise jointly, move for summary judgment dismissing the complaint, dated July 21, 2021, of plaintiffs Boris Akimov and Eugenia Akimova (collectively, "plaintiffs") as against them. Plaintiffs do not object to the dismissal of (and thus have effectively abandoned their claims as against) the remaining defendant NYU-Langone. See 114 Woodbury Realty, LLC v 10 Bethpage Rd., LLC, 178 A.D.3d 757, 761-762 (2d Dept 2019); Genovese v Gambino, 309 A.D.2d 832, 833 (2d Dept 2003). The balance of this Decision, Order, and Judgment addresses plaintiffs' claims as against Dr. Bilik and the Khorets defendants (collectively, "defendants").
Plaintiff Boris Akimov (the "patient"), with his wife suing derivatively, alleges that his primary-care physicians Drs. Bilik and Khorets individually (and their joint medical practice SBMA, vicariously) were negligent in failing to timely diagnose him with laryngeal cancer. After discovery was completed and a note of issue was filed, defendants timely moved for summary judgment dismissing the complaint insofar as asserted against them.
"A defendant seeking summary judgment in a medical malpractice action must establish, prima facie, that he or she did not deviate from accepted standards of medical care or that his or her acts were not a proximate cause of any injury to the plaintiff." Jacob v Franklin Hosp. Med. Ctr., 188 A.D.3d 838, 839 (2d Dept 2020), affd 36 N.Y.3d 1102 (2021). "[T]o defeat summary I judgment, the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie showing." Stukas v Streiter, 83 A.D.3d 18, 24 (2d Dept 2011). Thus, "where a defendant [healthcare provider], in support of [his or her] motion for summary' judgment, demonstrates only that he or she did not depart from the relevant standard of care, there is no requirement that the plaintiff address the element of proximate cause in addition to the element of departure." Stukas, 83 A.D.3d at 25.
Here, Dr. Bilik individually, and the Khorets defendants separately, have demonstrated, prima facie, their entitlement to summary judgment as a matter of law by way of deposition testimony, medical records, and the detailed expert affirmations of board-certified internists and primary-care physicians Lawrence Diamond, M.D. ("Dr. Diamond"), and Brian D. Feingold, M.D. ("Dr. Feingold"), on behalf of Dr. Bilik and the Khorets defendants, respectively, that neither defendant deviated from the accepted standards of medical care as primary-care physicians in failing to diagnose the patient's cancer, nor delayed in referring the patient to an ENT specialist for a laryngoscopy. Drs. Diamond and Feingold each addressed and rebutted the specific allegations of malpractice set forth in the complaint and bills of particulars. See Sheppard v Brookhaven Mem. Hosp. Med. Ctr., 171 A.D.3d 1234, 1235 (2d Dept 2019). The defense experts explained how and why defendants as primary-care physicians did not depart from good and accepted medical practice, and their expert affirmations contain sufficient factual detail with respect to the alleged negligence and injuries. See Elstein v Hammer, 192 A.D.3d 1075, 1077 (2d Dept 2021).
In opposition, plaintiffs have failed to raise a triable issue of fact as to either the departure or the causation elements of the patient's medical malpractice claim as against either set of defendants. First and foremost, plaintiffs' expert is not a primary-care physician but a board-certified otolaryngologist, also known as an ear, nose, and throat ("ENT") specialist. "While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field ...[,] the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable." Behar v Coren, 21 A.D.3d 1045, 1046-1047 (2d Dept 2005) (internal quotation marks omitted), lv denied 6 N.Y.3d 705 (2006). "Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered." Abruzzi v Maller, 221 A.D.3d 753, 756 (2d Dept 2023).
See Simon Best's Physician's Affirmation, dated February 13, 2024, ¶¶ 1-2 (NYSCEF Doc No. 80).
Under the circumstances of this case, plaintiffs' expert, as an ENT specialist, has failed to establish that he possesses the skill, training, education, knowledge, or experience in the general field of primary-care medicine to provide a foundation to opine on the clinical standard of care applicable to primary-care physicians. See Abruzzi, 221 A.D.3d at 758; Shectman v Wilson, 68 A.D.3d 848, 850 (2d Dept 2009). Notably, plaintiffs' expert does not aver that he has ever treated any patient as a primary-care physician. His affirmation does not set forth how he has become familiar with the clinical standards of primary-care medicine. Rather, plaintiffs' expert merely states, in conclusory fashion, that as an ENT specialist, he has: (1) "proctored classroom instruction to medical students and practicing internists in the area of laryngeal anatomy and physiology"; (2) "given lectures on voice disorders to internal medicine practitioners [at] Grand Rounds at Medstar Harbor Hospital in Baltimore"; (3) "familiarized [himself] with the standards of care for internists based on [his] training, research and teaching"; and (4) "reviewed articles regarding the standards of care for internists in recognizing the signs and symptoms of laryngeal cancer."
See Simon Best's Physician's Affirmation, ¶¶ 4-5 (emphasis added in each instance). Contrary to Dr. Bilik's contention (in ¶ 13 of his counsel's reply affirmation), the "Clinical Practice Guideline: Hoarseness (Dysphonia)" published in Otolaryngology-Head &Neck Surgery (2009), volume 141, pages S1-S31, is not "intended to be used [solely] by head and neck surgeons, nor is it narrowly "tailored to otolaryngology practitioners." Rather, the Guideline, by its express terms, "is intended for all clinicians who are likely to diagnose and manage patients with hoarseness." See Simon Best's Physician's Affirmation, Ex. A.
It is black-letter law that "[liability is not supported by an expert offering only conclusory assertions and mere speculation that the condition could have been discovered and successfully treated had the doctors not deviated from the accepted standard of medical practice." Curry v Dr. Elena Vezza Physician, P.C., 106 A.D.3d 413, 413 (1st Dept 2013). Rather, "failing to investigate an otherwise unindicated disease is not malpractice." (Id.). Here, plaintiffs' expert, in opining (in ¶¶ 25, 27, and 29 of his affirmation) that the patient's cancer should have been discovered from and after the early part of 2017, improperly relies on information which could not have been known to defendants/primary-care physicians during the time they treated the patient. See Rodriguez v Montefiore Med. Ctr., 28 A.D.3d 357, 358 (1st Dept 2006). Moreover, plaintiffs' expert's opinion is conclusory in nature because: (1) the patient had been examined by an ENT specialist whose examination in September 2016 failed to detect cancer, and (2) the patient was subsequently examined by a pulmonologist whose testing in October-November 2018 likewise failed to detect cancer. See Shekhtman v Savransky, 154 A.D.3d 592, 593 (1st Dept 2017).
See Patient's records with nonparty Dimitry Rabkin, M.D.. P.C. (NYSCEF Doc No. 51).
See Patient's records with nonparty' Igor Chemyayskiy, M.D. (NYSCEF Doc No, 53).
Next, plaintiffs' expert's sweeping assertion that defendants had a total of nine missed opportunities (with one so-called opportunity being assigned to each of his nine office visits to defendants) to refer the patient for a laryngoscopy "based on the in-person examinations where hoarseness was persistently present and complained of by the [patient]," mischaracterizes the record because the patient did not so testify. More fundamentally, plaintiffs' expert's opinion on that point is "based largely on hindsight reasoning." Ortiz v Wyckoff Hgts. Med. Ctr., 149 A.D.3d 1093, 1095 (2d Dept 2017); see also Clifford v White Plains Hosp. Med. Ctr., 217 A.D.3d 405 (1 st Dept 2023), lv denied 40 N.Y.3d 908 (2023); Spiegel v Beth Israel Med. Ctr. Kings Highway Div., 149 A.D.3d 1127, 1129 (2d Dept 2017).
See Simon Best's Physician's Affirmation, ¶ 30 (emphasis added).
The patient's pretrial testimony was too vague and self-contradictory to establish that he complained to either defendant of 'laryngitis" and of a "lump [or mass] in his throat." See Buchinger v Jazz Leasing Corp., 95 A.D.3d 1053 (2d Dept 2012); Fernandez v Laret, 43 A.D.3d 347 (1st Dept 2007). Compare Solano v Ronak Med. Care, 114 A.D.3d 592,593 (1st Dept 2014) ("[T]he deposition testimony of the decedent's daughter was sufficient to create a triable issue of fact. Significantly, [the daughter] testified that, in September and/or November 2003, approximately one year before decedent was diagnosed with cancer, she accompanied him to visits with [defendant], at which she reported [to defendant] that decedent's throat and ear pain were continuing, his voice was deteriorating, he was losing weight, and that he was bleeding at night from his mouth onto his sheets. Such testimony placed decedent's symptoms and complaints squarely within the parameters identified by [defendant's own] expert as warranting referral to an otolaryngologist.").
The recently decided case, Santiago v Abramovici,__A.D.3d__, 2024 NY Slip Op 01831 (2d Dept, Apr. 3,2024), is not to the contrary. There, the Second Judicial Department tersely held that "[u]nder the circumstances of this case, the affirmations of the plaintiff's experts were sufficient to raise triable issues of fact as to whether the defendant [primary-care physician] deviated from good and accepted medical practice in a manner that led to a delayed diagnosis of the plaintiffs multiple myeloma [cancer of the plasma cells] and whether the delayed diagnosis proximately caused the plaintiffs claimed injuries." Santiago is distinguishable from this case for three reasons. First, the Santiago plaintiff displayed the objective signs of cancer by way of his abnormal laboratory reports. Second, the Santiago plaintiff exhibited subjective symptoms of cancer in the form of his documented complaints to his primary-care physician of his severe back pain. Third and finally, Santiago's counsel submitted an expert affirmation from a primary-care physician (as well as a separate expert affirmation from an oncologist), whereas plaintiffs here are relying on the expert affirmation of an ENT specialist.
The remainder of plaintiffs' expert affirmation (at pages 23 through 26) faults defendants for keeping inaccurate/incomplete office records. A failure to document a good physical examination, however, is not equivalent to a failure to perform a good one. See Rivera v Jothianandan, 100 A.D.3d 542, 543 (1st Dept 2012), lv denied 21 N.Y.3d 861 (2013). Tn any event, plaintiffs' expert's contention (in ¶ 33 of his affirmation) that "from 2013 through December of 2019, [the patient's] records from [SBMA] were not complete and accurate," represents a new theory of liability which plaintiffs improperly raised for the first time in opposition to defendants' motions. See Campbell v Ditmas Park Rehabilitation & Care Ctr., LLC.__A.D.3d__, 2024 NY Slip Op 01697, *2 (2d Dept 2024); Winters v St. Vincent's Med. Ctr., 273 A.D.2d 465 (2d Dept 2000).
In light of dismissal of the patient's medical malpractice claim as against all defendants, dismissal of his wife's derivative claim is also warranted. See Wijesinghe v Buena Vida Corp., 210 A.D.3d 824, 826 (2d Dept 2022).
The Court has considered the parties' remaining contentions and found them either moot or without merit in light of its determination. All relief not expressly granted is denied.
The patient's post-deposition affirmation (at NYSCEF Doc Nos. 82 and 88) which his counsel submitted for the first time in opposition to defendants' motions cannot be considered. See e.g. Tardio v Saleh, 193 A.D.3d 901 (2d Dept 2021); Doran v JP Walsh Realty Group, LLC, 189 A.D.3d 1363, 1364 (2d Dept 2020). Lastly, the Court has overlooked, as non-substantive, plaintiffs' failure to submit the word-count certifications with their papers. See Anuchina v Marine Transp. Logistics, Inc., 216 A.D.3d 1126, 1127 (2d Dept 2023).
Based on the foregoing, it is
ORDERED that in Seq. No. 2, the joint motion of defendants Ilya Bilik, M.D., F.A.C.P., and NYU Langone Health System for summary judgment is granted in its entirety; and it is further
ORDERED that in Seq. No. 3, the joint motion of defendants Boris Khorets, M.D., and Sheepshead Bay Medical Associates, P.C., sued herein as Sheepshead Bay Medical Associates, for summary judgment is granted in its entirety; and it is further
ORDERED that plaintiffs' complaint is dismissed in its entirety as against all defendants, without costs and disbursements in each instance; and it is further
ORDERED that counsel for the Khorets defendants is directed to electronically serve a copy of this Decision, Order, and Judgment with notice of entry on the other parties' respective counsel and to electronically file an affidavit of service thereof with the Kings County Clerk.
This constitutes the Decision, Order, and Judgment of the Court.