Patsy TULLOCH, Plaintiff v. ST. FRANCIS HOSPITAL, Poughkeepsie, New York, Qing Hua Zhao, Teresa Karcnik, Anthony Caramico and Peter Leggiadro, Defendants.
Defendants Qing Hua Zhao, Teresa Karcnik, and Anthony Caramico move for an order pursuant to CPLR R3212 dismissing the plaintiff's complaint in its entirety. Defendant St. Francis Hospital moves for an order pursuant to CPLR R3212 dismissing the plaintiff's complaint in part insofar as it is alleged to be liable for the treatment provided by the aforementioned defendants. The plaintiff opposes the instant application and cross-moves for an order pursuant to CPLR R4011 directing a unified trial of the within action. The defendants' oppose the plaintiff's cross-motion.
The within action sounds in medical malpractice. Specifically, the plaintiff contends that her primary care physician Eunice Hoolihan, a non-party, ordered a series of films [*2] after the plaintiff presented for a high blood pressure follow up. On December 26, 2006, the plaintiff had a mammogram taken at St. Francis Hospital, which was interpreted by defendant Karcnik. Defendant Karcnik's report noted her impressions of bilateral nodularity of the breasts, and two areas of dominant nodularity in the right breast. The report further states that “further imaging evaluation is needed with bilateral spot compression views and true lateral views and bilateral ultrasound.” On or about December 29, 2006, defendant St. Francis Hospital sent correspondence to the plaintiff indicating that “[t]here appears to be an area of concern that requires additional evaluation. We recommend that you return for a right breast ultrasound exam left breast spot compression left breast ultrasound exam.” The December 29, 2006 correspondence also states that “it is important that you schedule a follow-up appointment” and that “[a] prescription is not necessary.”
On January 4, 2007, a bilateral breast ultrasound was performed by at St. Francis Hospital, which was interpreted by defendant Zhao. Defendant Zhao noted simple cysts in the plaintiff's left breast and a complex cyst in the right plaintiff's right breast. No written recommendations were made by defendant Zhao for follow up from this ultrasound.
A diagnostic bilateral mammogram was also performed at defendant St. Francis Hospital on January 4, 2007. Defendant Karcnik interpreted the study in a report dated January 5, 2007, which was signed by defendant Caramico, finding “bilateral breast cysts” and “recommend[ing] six month follow-up of right breast mammogram and sonogram to assess stability of these findings.”
Thereafter the plaintiff was sent correspondence from defendant St. Francis Hospital dated January 10, 2007, “recommend[ing] another a(sic) short interval follow-up. Further evaluation is sometimes needed as an extra precaution in select cases. It is important to have this procedure done even though your Mammogram, additional views-bilateral is probably benign. The report has been sent to the office of Eunice Hoolihan.” The correspondence also notes that “[a] prescription is not necessary for your follow up visit.”
On June 26, 2007, at the recommendation of Dr. Hoolihan, the plaintiff again presented at defendant St. Francis Hospital for a bilateral screening mammogram. This study was interpreted by defendant Leggiadro in a repot dated July 2, 2007 finding “multiple benign cysts of the right breast. Follow-up study in six months at the time of bilateral yearly mammography.”
On October 17, 2007 needle biopsies of the plaintiff's right breast were performed by Theodora Budnik, M.D., which subsequently revealed the plaintiff had breast cancer.
In order “to obtain summary judgment, it is necessary that [*3] the movant establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b] ), and he must do so by tender of evidentiary proof in admissible form.” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 ; Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067 .) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 A.D.2d 543 [2d Dept.1983] aff'd 62 N.Y.2d 681 .) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 .)
Defendant Caramico has established his entitlement to summary judgment dismissing the plaintiff's complaint. Defendant Caramico's involvement in the plaintiff's care was limited to reviewing the previously dictated report of defendant Karcnik and electronically signing the same in defendant Karcnik's absence. Defendant Caramico has submitted an affidavit in support of his application setting forth his opinion, within a reasonable degree of medical certainty, that his role in the plaintiff's care was limited to reviewing the previously dictated report to ensure the absence of any obvious transcription errors and to permit the timely release of the report. Defendant Caramico opines that he performed his obligations within the standard of good practice for a radiologist.
The plaintiff's opposition to defendant Caramico's prima facie showing alleges a previously unpled theory of liability; namely that defendant Caramico may be held vicariously liable for the interpretation of the plaintiff's film based upon his electronic signature. This is a new theory of liability which is asserted for the first time in opposition to the summary judgment motion and thus will not be considered by the court. (Golubov v. Wolfson, 22 AD3d 635 [2nd Dept.2005].) The plaintiff has otherwise failed to demonstrate the existence of a triable issue of fact precluding the granting of summary judgment in defendant Caramico's favor. Therefore, it is ordered that defendant Caramico's motion is granted. It is further ordered that defendant St. Francis Hospital's motion is granted in part insofar as it is alleged to be liable for the treatment provided by defendant Caramico.
Defendants Zhao and Karcnik have also established their prima facie entitlement to summary judgment by submitting evidence that the plaintiff's action was commenced beyond the two-and-a-half year statute of limitations as provided in CPLR § 214–a. The plaintiff's allegations are they relate to defendants Zhao and Karcnik's statute of limitations contention are as follows: defendant Zhao negligently interpreted the [*4] plaintiff's sonogram of January 4, 2007 and defendant Karcnik negligently interpreted the plaintiff's sonogram taken on January 4, 2007 and read on January 5, 2007. Accordingly, the statute of limitations expired on or about July 4, 2009. The moving defendants have therefore established that the plaintiff's action, which was not commenced until December 17, 2009, is untimely. The burden therefore shifts to the plaintiff to demonstrate a triable issue of fact with respect to the tolling to the statute of limitations. (See, Elkin v. Goodman, 285 A.D.2d 484 [2nd Dept.2001].)
The plaintiff contends that the continuous treatment doctrine tolled the statute of limitations during her treatment at defendant St. Francis Hospital from December 26, 2006 until at least July 2, 2007. As such, the plaintiff argues that the statute of limitations did not expire as to the moving defendants until January 2, 2010.
It is well settled that the continuous treatment doctrine does not apply unless there has been a course of treatment established with respect to the same condition or complaint that gives rise to the lawsuit. (Stewart v. Cohen, 82 AD3d 874 [2nd Dept.2011]; Simons v. Bassett Health Care, 73 AD3d 1252 [3rd Dept.2010]; Trimper v. Jones, 37 AD3d 1154 [4th Dept.2007].)
With respect to defendant Zhao, no evidence in probative form has been submitted by the plaintiff to raise a triable issue of fact as to the plaintiff's contention that defendant Zhao undertook a continuous course of treatment of the plaintiff. For treatment to be deemed continuous for the purpose of tolling the statute of limitations, “further treatment must be explicitly anticipated by both the physician and patient, as demonstrated by a regularly-scheduled appointment for the near future, which was agreed upon at the last visit and conforms to the periodic appointments relating to the treatment in the immediate past.” (Monello v. Sottile, Megna, M.D., P.C., 281 A.D.2d 463, 464 [2nd Dept.2001].) Here, defendant Zhao performed a single radiological interpretation of an ultrasound conducted on January 4, 2007. As is evidenced by defendant Zhao's reading, no recommendation for follow-up was made and there was no assignment of any BIRADS level. The plaintiff has otherwise failed to demonstrate that a future visit was anticipated by either herself or defendant Zhao. Accordingly, the plaintiff's action is time barred against defendant Zhao and defendant Zhao's motion to dismiss the plaintiff's complaint is granted.
The court reaches a different conclusion with respect to defendant Karcnik. Where a plaintiff alleges that a medical practitioner failed to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition. (Simons v. Bassett Health Care, 73 AD3d 1253 [3rd Dept.2010].) “Merely [*5] because [a] defendant[ ] did not diagnose plaintiff's condition as cancer is not a basis to find that they were not treating [her] for it if [her] symptoms were such as to indicate its existence and they nevertheless failed to properly diagnose it.” (Hill v. Manhattan W. Med. Group–H.I.P., 242 A.D.2d 255, 255 [1st Dept.1997].)
Here, defendant Karcnik interpreted two separate mammograms, one on December 26, 2006 and a second on January 4, 2007. Defendant Karcnik's December 26, 2006 report indicates abnormalities in the plaintiff's breasts in the form of bilateral nodularities. Defendant Karcnik's report also indicates that “further imaging evaluation is needed”. Thereafter, on January 4, 2007, the plaintiff returned for an additional imaging evaluation of the bilateral nodularity. Defendant Karcnik's report indicates abnormalities in the plaintiff's breasts including “bilateral breast cysts, complex at 7:00 position right breast, 2.2cm” and “recommend[s] six month follow-up of right breast mammogram and sonogram to assess stability of these findings.”
On or about January 10, 2007, the plaintiff was sent a letter from defendant St. Francis Hospital indicating that the report from her January 4, 2007 testing had been sent to plaintiff's primary care physician, Eunice Hoolihan, and recommending “another short interval follow-up”. The plaintiff testified that Dr. Hoolihan was the first person who told her she needed a follow-up exam in six months from the January 4, 2007 testing.
Subsequently, the plaintiff presented at defendant St. Francis Hospital on June 21, 2007 for a right breast mammogram and June 26, 2007 for a right breast ultrasound. Both studies were read by defendant Leggiadro on July 2, 2007.
In the circumstances in the case at bar, the court cannot determine as a matter of law the applicability of the continuous treatment toll for the services rendered by defendant Karcnik. Here, the plaintiff underwent periodic diagnostic examinations anticipated by physician and patient alike as part of ongoing care and monitoring of abnormalities in her breasts. There was a unitary purpose, i.e. monitoring the abnormalities in the plaintiff's breasts, for which the plaintiff periodically visited the radiologists and the reports of defendant Karcnik in conjunction with the correspondence sent by defendant St. Francis Hospital and the recommendations of the plaintiff's primary care physician raise a question of fact as to the moving defendant's continuous treatment of the plaintiff. Accordingly, the court finds that issues of fact exist that preclude the granting of summary judgment in favor of defendant Karcnik. (See generally, Green v. Varnum, 273 A.D.2d 906 [4th Dept.2000] [finding that plaintiff submitted proof sufficient to raise a triable issue of [*6] fact as to whether the defendant treated her for symptoms indicating the existence of multiple myeloma sufficient to raise triable issues of fact as to continuous treatment]; Hill, supra, [denying defendants' motion based on expiration of the statute of limitations upon finding that the record was unclear as to whether certain of the repeated visits by plaintiff's decedent to defendants were for treatment of symptoms actually indicating the existence of colon cancer].)
The plaintiff cross-moves for an order pursuant to CPLR R4011 directing a unified trial of the within action. It is well-settled that “[t]he party opposing bifurcation has the burden of showing that the nature of the injuries necessarily assists the factfinder in making a determination with respect to the issue of liability.” (Carbocci v. Lake Grove Entm't., 64 AD3d 531, 532 [2nd Dept.2009].) Here, the plaintiff has failed to submit an expert affidavit or other probative evidence addressing her contention that her injuries have a bearing on the question of liability. (See, Felice v. Southside Hosp., 249 A.D.2d 359 [2nd Dept.1998].) Accordingly, the court finds that the plaintiff has not met her burden and her cross-motion for an order directing a unified trial is denied.
For the foregoing reasons, it is ordered that defendants Qing Hua Zhao and Anthony Caramico's motions for summary judgment are granted and the plaintiff's complaint as against them is dismissed. It is further ordered that defendant St. Francis Hospital's motion for partial summary judgment is granted to the extent that the plaintiff's causes of action alleged it is liable for the treatment provided by defendants Qing Hua Zhao and Anthony Caramico are also dismissed. Defendant Karcnik's motion for summary judgment is denied as questions of fact exist as to the applicability of the continuous treatment doctrine. Finally, it is ordered that the plaintiff's motion for a unified trial is denied.
The Court read and considered the following documents upon these applications:
The foregoing constitutes the decision and order of the Court.
JAMES D. PAGONES, J.
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