Opinion
Index No. 507896/2020
03-21-2024
MOHAMMED BABLU and PARVEEN SULTANA, Plaintiffs, v. GENNADIY KVETNY, M.D.. SUNIL MEHRA, M.D., FAMILY HEALTH CENTER OF MIDDLE VILLAGE, WYCHOFF HEIGHTS MEDICAL CENTER, and MOUNT SINAI HOSPITAL, Defendants.
Unpublished Opinion
PRESENT: Hon. Genine D. Edwards, Justice.
DECISION & ORDER
GENINE D. EDWARDS, JUDGE.
The following e-filed paper(s) read herein: NYSCEF Doc. No.
Notice of Motion, Memorandum of Law Affidavits, Affirmations and Exhibits......................................74-101
Affirmation in Opposition, Affidavit, and Exhibits...................................................................106-119
Reply Affirmation............................................................121
In an action to recover damages for medical practice, negligence, loss of earnings, and lack of informed consent, Sunil Mehra, M.D. ("Dr. Mehra" or "defendant") moved for an order: (1) dismissing plaintiffs' claims pursuant to CPLR § 3211(a)(5). granting dismissal of all of plaintiffs' claims against defendant, pertaining to his May 21, 2015 office visit on the grounds that the statute of limitations expired as to all such claims; (2) pursuant to CPLR § 3212, granting summary judgment in favor of defendant, thereby dismissing plaintiffs' complaint with respect to defendant in its entirety, on the grounds that no triable issue of fact exists; and (3) amending the caption, removing Sunil Mehra, M.D., as a defendant, along with such other and further relief that this Court deems just, proper and equitable. Plaintiffs opposed the motion.
Facts
On May 21, 2015, Mohammed Bablu ("Mr. Bablu" or "plaintiff') visited Wyckoff Heights Medical Center and was seen by pulmonary' attending. Dr. Mehra. At the visit. Dr. Mehra performed a pulmonary' breathing (function) test ("PFT"). The PFT report interpreted a normal spirometry. Dr. Mehra noted, "54 year old Bangladesh male complains of blood in urine (painful) 6 months ago - saw Dr. Hakimian (GU) - CT chest and abdomen - mass lung + renal stone. No cough, fever, chills and anorexia or weight loss." Defendant testified he also reviewed Mr. Bablu's March 10, 2015 CT urogram results, which co-defendant, Gennadiy Kvetny, M.D. ("Dr. Kvetny") faxed over that afternoon.
Mr. Bablu and his wife, co-plaintiff Parveen Sultana ("Ms. Sultana"), testified that they brought a CD to the May 21, 2015 visit. The CD contained a CT scan of Mr. Bablu's right chest that was performed at Richmond Hill Radiology. Mr. Bablu contended that Dr. Mehra reviewed the CT scan during the visit. Mr. Bablu said he also informed Dr. Mehra of his childhood tree fall incident when defendant inquired about the old scar on his lung.
In contradiction, Dr. Mehra testified that the plaintiffs did not present a CT scan or CD for his review. He further indicated that if plaintiffs brought the CD for his review, he would have written "CT reviewed by me" in his notes. Dr. Mehra contended that plaintiff reported having a lung mass. He also denied that plaintiff told him about a childhood incident, since again it was not in his notes. Notwithstanding, Dr. Mehra argued that the information would be irrelevant, as Mr. Bablu's test findings were inconsistent with a person who had a history of a fall.
Dr. Mehra's plan was to "repeat CT chest/PET scan in six months. Do PPD with 5 TU. Discuss with patient and wife." Defendant told Mr. Bablu to follow-up in six months, with his medical reports. Mr. Bablu did not appear for the follow-up appointment. Dr. Mehra's staff called Mr. Bablu and reminded him to complete the CT and PET scans.
More than two years later, on December 21, 2017, Mr. Bablu presented to Dr. Mehra's office and another PFT was performed, which Dr. Mehra noted to be within normal limits. Dr. Mehra insisted that December 21, 2017 was the first time he saw' a mass or nodule in Mr. Bablu's right upper lung. He learned of the lung mass because Richmond Hill Radiology faxed two CAT scan reports of Mr. Bablu's chest; one from May 11, 2015 and the other from December 5, 2017. The CAT scans showed that the lung mass shrunk from 2.7 centimeters in May 2015 to 2.3 centimeters in December 2017. Dr. Mehra testified that the right upper nodule was not calcified, which was concerning for him "because [tuberculosis] is most common in the right upper lobe." Dr. Mehra instructed Mr. Bablu to get a CT chest and PET scan and advised Mr. Bablu to be compliant.
Mr. Bablu did not appear for the scheduled follow-up at Dr. Mehra's office, on February 6, 2018. Dr. Mehra tried to call Mr. Bablu without success. Dr. Mehra's staff did not contact
Ms. Sultana because she was not a listed contact person. Mr. Bablu was later diagnosed with Stage IV lung cancer in May 2019.
Analysis
Statute of Limitations
Medical malpractice actions must be commenced within two years and six months of the act, omission, or failure complained of. or the last treatment where same is continuous treatment for the same illness, injury or condition that gave rise to the said act, omission, or failure. Hall v. Bolognese, 210 A.D.3d 958. 178 N.Y.S.3d 564 (2d Dept. 2022). "A defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired." Osborn v. DeChiara, 165 A.D.3d 1270, 1270, 87 N.Y.S.3d 97 (2d Dept. 2018). "The burden then shifts to the plaintiff to present evidence raising a question of fact as to whether the action falls within an exception to the statute of limitations or whether the continuous treatment doctrine applies to toll the statute of limitations." Id.
An exception to the statute of limitations is Lavem's Law, codified as CPLR § 214-a. Pursuant to Lavem's Law, where the action is based upon the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within two years and six months of the later of either (i) when the person knows or reasonably should have known of such alleged negligent act or omission and know s or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than seven years from such alleged negligent act or omission, or (ii) the date of the last treatment w here there is continuous treatment for such injury, illness, or condition. (Emphasis added). Moreover, Lavem's Law, which took effect on January 31, 2018, applies the 2.5-year tolling period retroactively to causes of action accruing on or after July 31, 2015. Ford v. Lee, 203 A.D.3d 456, 164 N.Y.S.3d 592 (1stDept. 2022).
"The continuous treatment doctrine tolls the statute of limitations when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint." Cohen v. Gold. 165 A.D.3d 879, 86 N.Y.S.3d 538 (2d Dept 2018). Under this doctrine, three conditions must be met: "(1) the patient continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period; (2) the course of treatment was for the same conditions or complaints underlying the plaintiffs medical malpractice claim; and (3) the treatment [was] continuous." Proano v. Gutman, 211 A.D.3d 978, 180 N.Y.S.3d 279 (2d Dept. 2022). Continuity of treatment may be exhibited by "further treatment... explicitly established by both the physician and the patient, as demonstrated by a regularly scheduled appointment for the near future." Hillary v. Gerstein, 178 A.D.3d 674 114 N.Y.S.3d 440 (2d Dept. 2019). "Essential to the application of the doctrine is that there has been a course of treatment established with respect to the relevant condition, so [] a mere continuing relation between physician and patient or the continuing nature of a diagnosis is insufficient to invoke the doctrine" Cohen v. Gold, 165 A.D.3d 879. 86 N.Y.S.3d 538 (2d Dept. 2018). "Treatment does not necessarily terminate upon the last visit, if further care or monitoring of the condition is explicitly anticipated by both physician and patient, as manifested by a regularly scheduled appointment for the near future" Id. Furthermore, continuous treatment tolling of the statute of limitations will not include the lack of an actual course of treatment for the condition or complaint, or for symptoms related to same. Weinstein v. Gerwirtz, 208 A.D.3d 717, 173 N.Y.S.3d 316 (2d Dept. 2022).
Here, Dr. Mehra established his prima facie entitlement to judgment as a matter of law dismissing, as time barred, plaintiffs' claims concerning Mr. Bablu's May 21, 2015 treatment. Defendant demonstrated that more than two years and six months has elapsed since the proffered treatment date and May 26, 2020; the commencement date of this action. Defendant postulated that Mr. Bablu did not seek continuous treatment between May 2015 and December 2017; as there were no affirmative and ongoing conduct such as therapy, surgery, or medications prescribed to Mr. Bablu during that time period. Dr. Mehra further argued that even if plaintiffs are able to establish a continuous treatment of care from May 21, 2015 and November 22, 2015, Mr. Bablu's missed follow-up appointment, plaintiffs' action would still be untimely because it would only extend the statute of limitations to May 15, 2018. Dr. Mehra also argued that since the May 2015 office visit predates the earliest date to which the retroactive discovery toll applies, plaintiffs are not entitled to the tolling exception of Lavem's Law.
In opposition, plaintiffs raised a triable issue of fact as to whether the continuous treatment doctrine served to toll the limitations period. Plaintiffs contended that the May 21, 2015 date is not time barred because the November 22, 2015 date is the controlling date for purposes of the continuous treatment doctrine. Plaintiffs argued where a doctor schedules a follow-up appointment, the follow-up date is considered the continued treatment date; irrespective of whether the plaintiff actually appears for the appointment. Plaintiffs also meet all three elements of the continuous treatment doctrine. Under the first prong, Mr. Bablu sought treatment from Dr. Mehra on May 21, 2015 upon learning that he had a mass in his lungs that needed to be reviewed by a pulmonologist. Defendant provided plaintiff with an appointment on November 22, 2015, to follow up on the mass by requesting an additional CT chest/PET scan. Thus, Mr. Bablu sought, and in fact obtained, an actual course of treatment. Under the second prong, Dr. Mehra's course of treatment included "bilateral pulmonary nodules in the lung parenchyma." His plan for Mr. Bablu was to obtain additional CT chest/PET scans. A PET scan is typically used to detect cancer. Plaintiffs' complaint alleges that the defendants in this case, which includes Dr. Mehra. "misdiagnos[ed] lung cancer as scar tissue or other benign condition without undertaking, arranging-for or recommending proper diagnostic procedures..." Hence, the treatment rendered was for the same conditions underlying Mr. Bablu's complaint. Lastly, Dr. Mehra's request for Mr. Bablu to return within six months was an explicitly established agreement for the treatment commenced on May 21, 2015 to continue. Accordingly, plaintiffs' action is not time-barred as to the May 21, 2015 office visit.
Summary Judgment
"In moving for summary judgment dismissing a cause of action alleging medical malpractice, a defendant must establish, prima facie, that there was no departure or deviation from the accepted standard of care or that such departure or deviation was not a proximate cause of any injury to the plaintiff." Attia v. Klebanov, 192 A.D.3d 650, 143 N.Y.S.3d 408, 410 (2d Dept. 2021). "In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiffs complaint and bill of particulars." Wiater v. Lewis, 197 A.D.3d 782, 153 N.Y.S.3d 176, 178 (2d Dept. 2021).
Once the defendant makes its prima facie showing, "the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact as to the elements on which the defendant met the prima facie burden." Piazza v. NYU Hosps. Ctr., 208 A.D.3d 525, 173 N.Y.S.3d 293, 295 (2d Dept. 2022). "To rebut the defendant's prima facie showing, a plaintiff must submit an expert opinion that specifically addresses the defense expert's allegations.'' Pirri-Logan v. Pearl, 192 A.D.3d 1149, 145 N.Y.S.3d 545, 548 (2d Dept. 2021).
The movant established his prima facie entitlement to summary judgment by proffering, inter alia, Mr. Bablu's medical records, the parties' deposition testimony, and the expert opinion of Peter Dicpinigaitis, M.D. ("Dr. Dicpinigaitis"). Dr. Dicpinigaitis is board-certified in internal medicine, pulmonary disease, and critical care medicine. Dr. Dicpinigaitis opined that the defendant's treatment of Mr. Bablu on May 21, 2015 and December 21, 2017, were within the standard of care. Specifically, Dr. Dicpinigaitis advanced that where a pulmonologist is evaluating a patient, the standard of care requires that the pulmonologist take note of the patient's history, examine the patient, and review all accessible data. Where a patient does not inform the pulmonologist of any prior diagnostic tests, and where the latter does not have a ''multi-institutional electronic medical record," Dr. Dicpinigaitis asserted that the physician cannot be expected to be aware of the existence of such information. Thus, defendant's treatment of Mr. Bablu in 2015 and 2017 was pursuant to the standard of care since it was based upon the information that Mr. Bablu provided.
Dr. Dicpinigaitis further opined that defendant's plan of treatment was appropriate for the issues he was informed about at the time. As defendant testified that the only document he received from Mr. Bablu during the May 21, 2015 visit was the CT urogram ordered by Dr. Hakimian. The urogram, which covered Mr. Bablu's abdomen and pelvis, only showed the lower portion of Mr. Bablu's lungs and benign calcified granulomas. Defendant contended that he did not have the CT scan of the full chest administered by Dr. Bania on May 9, 2015, during his initial consultation with Mr. Bablu. Defendant's expert opined that defendant would have been mandated to produce a different opinion in 2015 had he been aware of the 2.7-centimeter lung nodule in Mr. Bablu's right upper lobe. Dr. Dicpinigaitis compared defendant's reaction and medical opinion from May 2015, without the chest CT scan, to his reaction and medical opinion in December 2017, once he received the May 9, 2015 CT scan. Those reactions and opinions evidenced that defendant lacked awareness of the mass in Mr. Bablu's upper right lobe and gave Mr. Bablu a medical opinion based upon the calcified granulomas alone. When defendant became aware of the mass. Dr. Dicpinigaitis found that he acted in accordance with the standard of care by ordering a CT scan of Mr. Bablu's chest, a PET scan, administering a PFT, and reminding Mr. Bablu of the importance of urgency.
Apropos of Mr. Bablu's missed appointment on November 22, 2015. Dr. Dicpinigaitis also indicated that it was within the standard of care for defendant to contact Mr. Bablu and remind him to have the CT and PET scans completed. Dr. Dicpinigaitis expounded that a "solo practitioner cannot be put in the position of being required to pursue a patient in order to force them to follow up or to have recommended studies or tests." Moreover, Dr. Dicpinigaitis opined that defendant cannot be held to the same standard as hospitals and large medical organizations that have integrated follow-up systems in place.
In opposition, the plaintiffs submitted, inter alia, the redacted affirmation of their expert physician. Plaintiffs' expert is board-certified in internal medicine, hematology, and medical oncology. The expert opined, amongst other things, that Dr. Mehra's treatment of Mr. Bablu during the two office visits deviated from the standard of care. The plaintiffs' expert indicated that Dr. Dicpinigaitis' statement regarding Dr. Mehra's opinion being drastically different if he had the chest CT scan is circular reasoning. Plaintiffs' expert pointed out the fact that Dr. Mehra documented Mr. Bablu's complaint of a 'Trass in the lung" and "CT chest" multiple times in his chart. Therefore, even if defendant was unaware of the May 9, 2015 CT scan, he was obligated, as an internist and pulmonologist, "to find out what [] plaintiff was talking about, and what the results of a CT Chest were, before proceeding any further." Plaintiffs' expert continues, "[e]ven taking Defendant's dubious claim that his notes documented "Ct test", rather than "CT chest" as true, the standard of care when encountering a new patient would be to understand the reason for their consultation and to undertake a full and complete history." Ergo, plaintiffs' expert opined that the only reason Dr. Mehra did not know of Mr. Bablu's May 9.2015 chest CT scan results was because he failed to obtain Mr. Bablu's proper history. Given Dr. Mehra's differential diagnoses, plaintiffs' expert asserts that his treatment plan including a PET scan was questionable. Hence. Dr. Mehra's failure to properly treat and follow-up with Mr. Bablu caused his curable stage I lung cancer to metastasize into an uncurable stage IV.
An un-redacted copy of the plaintiffs expert affirmation was sent to this Court.
With respect to December 21, 2017 visit, plaintiffs' expert opined that since Dr. Mehra was aware of the CT scan and the x-ray report, the standard of care required an immediate biopsy of the lung mass to either diagnose or rule out cancer. Additionally, plaintiffs' expert was of the opinion that since Dr. Mehra knew of the questionable mass reflected in the CT report, the December 2, 2017 x-ray, and the fact that no further steps were taken in two and A years, the proper standard of care would have been for Dr. Mehra to ensure that Mr. Bablu completely understood that his situation required urgent action. To that effect, plaintiffs' expert also indicated that Dr. Mehra continued to deviate from the standard of care on November 22, 2015 and February 6, 2018, with his one attempted call to Mr. Bablu. Plaintiffs' expert found that Dr. Mehra's failure to make contact with Mr. Bablu, leave a voice mail, make a second call, send a letter, or follow up with his referring physician. Dr. Kvetny, was "glaringly insufficient." not burdensome for a solo practitioner, and a deviation from accepted standard of medical care, which caused and/or substantially contributed to the progression of Mr, Bablu's cancer.
Based upon the parties' contrasting expert opinions, there remain triable issues of fact as to whether Dr. Mehra failed to adhere to the standard of care. Schmidt v. Bangiyev, 210 A.D.3d 924, 178 N.Y.S.3d 212 (2d Dept. 2022); Stewart v. North Shore University Hospital at Syosset, 205 A.D.3d 858, 166 N.Y.S.3d 676 (2d Dept. 2022).
Conclusion
Accordingly, Dr. Mehra's motion is denied in its entirety.
This constitutes the Decision and Order of this Court.