Opinion
2009/810.
Decided May 11, 2011.
ROBERT D. STEINHAUS, ESQ., for Plaintiffs.
MARYLOU K. ROSHIA, ESQ., for Defendants.
PAPERS CONSIDERED: The NOTICE OF MOTION of Defendants and the supportingAFFIDAVIT of Marylou K. Roshia, Esq., with annexed exhibits; the AFFIDAVIT of Thomas A. Summers, M.D.; DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OFMOTION FOR SUMMARY JUDGMENT; the OPPOSING AFFIDAVIT of Robert D. Steinhaus, Esq., with annexed exhibit, i.e., the PHYSICIAN'S AFFIDAVIT of [redacted] and; the REPLY AFFIDAVIT of Marylou K. Roshia, Esq., with annexed exhibit.
The Court has been furnished with an unredacted version of the physician's affidavit.
Plaintiffs commenced this action in January 2009 to recover damages allegedly caused by medical malpractice allegedly committed by defendants in their care of plaintiff Melinda J. Bystrak (hereinafter plaintiff or the patient). The complaint alleges a misdiagnosis and consequent lack of treatment of plaintiff's condition by the two defendant radiologists, Dr. Shim and Dr. Summers, both of whom practice at defendant Windsong Radiology, P.C. Such allegations relate to each radiologist's interpretation of a set of x-rays and generation of a report on August 8, 2006 and February 16, 2007, respectively. Both sets of x-rays included films of the patient's right ankle, which had been injured in a fall from a pool ladder on August 8, 2006. Both sets of x-rays were ordered by plaintiff's primary care physician, with whom the then 34-year-old plaintiff was treating all along for her continued complaints of pain and debility in her ankle. Both set of x-rays were interpreted by defendant radiologists as being negative for any fracture or other abnormality, including on the talar dome and in the joint spaces of the ankle, "except for some soft tissue swelling [seen] in the lateral ankle" on the date of the injury. However, on May 9, 2007, about twelve weeks following the second set of x-rays, plaintiff saw an orthopedic surgeon, Dr. Pochatko, based on a further referral by her primary care physician. Upon reading the prior two sets of x-rays and an additional set of weight-bearing x-rays taken that day, Dr. Pochatko diagnosed the patient with a right OCD lesion of the right talus, i.e., an area of abnormal or damaged cartilage and bone located at the top or dome of the talus, the lower bone of the ankle joint. On May 15, 2007, plaintiff underwent a right ankle arthroscopy by Dr. Pochatko.
The claim of John Bystrak is derivative.
Defendants emphasize that the interval between the second x-ray report and the primary physician's referral of plaintiff to the orthopedic surgeon was only about six weeks.
Now before the Court is a motion by defendants for summary judgment dismissing the complaint in part, i.e., insofar as it alleges negligent hiring and supervision on the part of defendant Windsong; and insofar as concerns any acts or omissions by defendant Summers, the interpreter of the second set of x-rays and author of the report dated February 16, 2007. In response to the motion, plaintiff has withdrawn all claims based on theories of negligent hiring, retention, or credentialing. That leaves the Court to analyze only that part of the motion concerned with the viability of the allegation that plaintiff sustained injury as a result of a negligent misdiagnosis by Dr. Summers.
In order to sustain a cause of action for medical malpractice, the plaintiff must prove that there was a deviation or departure by the defendant from good and accepted standards of medical practice, and that such departure was a proximate cause of the injury ( see Elias v Bash , 54 AD3d 354 , 357 [2d Dept 2008]; Wicksman v Nassau County Health Care Corp. , 27 AD3d 644 [2d Dept 2006]; Anderson v Lamaute, 306 AD2d 232, 233 [2d Dept 2003]). Of course, in seeking summary judgment, the defendant need only negate or refute either essential element of plaintiff's cause of action in order to demonstrate its entitlement to judgment as a matter of law ( see e.g. Thompson v Orner , 36 AD3d 791 , 792 [2d Dept 2007]; Williams v Sahay , 12 AD3d 366 , 368 [2d Dept 2004]; see also Stukas v Streiter, 83 AD3d 18, ___ [2d Dept 2011]).
Here, in relation to whether plaintiff sustained any injury as a result of any alleged malpractice by Dr. Summers, which is the sole contested issue on the motion ( see Stukas, 83 AD3d at ___), defendants failed to sustain their initial burden of demonstrating their entitlement to judgment as a matter of law dismissing plaintiff's complaint ( see G.P. v Children's Hosp. of Buffalo , 45 AD3d 1484 [4th Dept 2007]; Kless v Paul T.S. Lee, M.D., P.C. , 19 AD3d 1083 , 1084 [4th Dept 2005]; Olivetto v Salevitz , 8 AD3d 645 , 646 [2d Dept 2004]; Nwabude v Sisters of Charity Health Care Sys. Corp., 309 AD2d 909, 910 [2d Dept 2003]; see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In arguing otherwise, defendants contend that there can be no recovery by plaintiff in these circumstances absent competent medical proof that plaintiff sustained a physical injury separate and apart from her underlying disease or affliction, and that such independent injury was proximately caused by defendant's negligence and some consequent delay in diagnosis ( see Vossler v Amin, 175 AD2d 570 [4th Dept 1991]; see also Lyons v McCauley, 252 AD2d 516 [2d Dept 1998]). Here, defendants acknowledge that the alleged misreading of the x-ray by Dr. Summers occasioned a six-or twelve-week delay in the diagnosis and treatment of plaintiff's condition (beyond the initial six-month delay caused by defendant Shim's misreading of the first set of x-rays), although they imply that the more recent alleged failure to diagnose did not exacerbate plaintiff's existing injury or cause a new or different injury. However, nothing in defendants' showing in support of the motion plausibly refutes plaintiff's basic allegation that the additional delay in diagnosis and treatment attributable to the February 16, 2007 negative x-ray report prolonged plaintiff's pain and suffering over a discrete period of time, delayed the eventual correct diagnosis and eventual surgical correction of plaintiff's condition for that same period of time, and therefore forestalled the eventual healing of plaintiff's ankle fracture for an equal period of time. For example, although Dr. Summers specifically avers that the patient's "condition and course of treatment would have been the same had the patient been diagnosed with an OCD lesion of the talus on February 16, 2007," nowhere does he indicate the basis for his implication that, even if she had received a correct diagnosis as of that time, plaintiff nevertheless would have similarly delayed in seeing an orthopedist and undergoing surgery until May 2007. Nor does he give grounds for his implicit suggestion that the surgery ultimately performed by Dr. Pochatko was not so effectual as to be worth performing sooner rather than later.
It is noteworthy to the Court that defendants do not, at least not as of this time and based on this record, make the same implication concerning the initial six-month (or overall nine-month) delay in diagnosis and treatment attributed by plaintiff to Dr. Shim's alleged similar misreading of the first set of x-rays in August 2006.
It is clear to this Court that, in these circumstances, a patient's medical and legal interests lie in obtaining a diagnosis that is both accurate and timely, so as to enable the patient to pursue appropriate and expeditious treatment, and that radiologists such as defendant Summers tacitly recognize such interests insofar as they generally issue their radiological report within hours or days of the taking of the x-rays and not, say, within weeks or months of that time.
Even assuming, arguendo, that defendants sustained their initial burden on the motion, the Court would conclude that plaintiff succeeded in raising a triable issue of fact concerning whether Dr. Summers' alleged negligence caused some harm to plaintiff ( see Bickom v Bierwagen , 48 AD3d 1247 [4th Dept 2008]; Kless, 19 AD3d at 1084; Anderson, 306 AD2d at 233-234; Lopez-Maraldo v Ciccone, 292 AD2d 348, 348-349 [2d Dept 2002]; Smith v Mather Mem. Hosp., 268 AD2d 518 [2d Dept 2000]). Plaintiff's expert radiologist avers to a reasonable degree of medical certainty that the "sightly displaced fracture of the lateral dome of the talus" is visible on the February 16, 2007 x-ray and thus should have been noted by Dr. Summers in the exercise of reasonable medical care. More to the point, plaintiff's expert avers, to a reasonable degree of medical certainty, "that the delay in diagnosis and treatment of said fracture caused [plaintiff] to suffer prolonged pain and suffering and permanancy" (emphasis supplied). Plaintiff's expert thereby implies that both the course of the patient's condition and her ultimate condition would not have been the same had she been correctly diagnosed sooner.
Accordingly, defendants' motion for summary judgment dismissing the complaint insofar as it alleges medical malpractice on the part of defendant Summers is DENIED.
All counsel are to report for a status conference to be held on June 28, 2011, at 1:45 p.m. in Part 34 at 50 Delaware Avenue.
SO ORDERED: