BASYA VAINSTEIN v. MARIA RANADA GUERRERO JONATHAN JOSEPH KHODADADIAN SINAI DIAGNOSTIC AND INTERVENTIONAL RADIOLOGY BAY RIDGE MEDICAL IMAGING (2026)

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review:

NYSCEF #s: Seq. 2: 95—119, 201—206, 225—226

Seq. 3: 120—129, 207—212, 227

Seq. 4: 130—158, 213—218, 228

Seq. 5: 159—195, 219—224, 229—230

Defendant Maria Ranada Guerrero, M.D. ("Dr. Guerrero") moves for an Order, pursuant to CPLR 3212, granting summary judgment in her favor and dismissing all claims against her (Seq. No. 2).

Defendant Sinai Diagnostics and Interventional Radiology, P.C. ("Sinai Diagnostics") separately moves for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing Plaintiffs' Complaint and any cross claims against them (Seq. No. 3).

Defendants Jonathan Joseph Khodadadian, M.D. ("Dr. Khodadadian") and Bay Ridge Medical Imaging, P.C., separately move for an Order, pursuant to CPLR 3212, granting summary judgment in their favor, and dismissing Plaintiffs' Complaint against them (Seq. No. 4).

Defendant Thomas Joseph Russi, M.D. ("Dr. Russi") separately moves for an Order, pursuant to CPLR 3212, granting summary judgment in his favor and dismissing Plaintiffs' Complaint against him (Seq. No. 5).

Plaintiffs oppose the motions as to the medical malpractice claims against all Defendants. Plaintiffs do not oppose the parts of Defendants' motions seeking dismissal of the cause of action for lack of informed consent. Accordingly, that part of the motions seeking summary judgment on the lack of informed consent claim is granted to all Defendants without opposition.

Plaintiff Rivien Vainstein ("the patient") commenced this action on May 25, 2021, asserting claims of medical malpractice in connection with the diagnosis and treatment of lung cancer by the patient's pulmonologist and interpreting radiologists in February 2019 and May/June 2019. The patient was ultimately diagnosed with stage II-B lung cancer in September 2019, and despite undergoing further treatment, the cancer metastasized to his brain in December 2022. Co-Plaintiff Basya Vainstein, the patient's spouse, also asserted claims of loss of services, companionship, and consortium.

The patient was 62 years old at the time of the events at issue and had a history of smoking for over 30 years. He had undergone a previous chest CT scan at Sinai Diagnostics on March 22, 2017, which was interpreted by Defendant Dr. Guerrero.

On February 13, 2019, the patient was referred to Sinai Diagnostics for a chest CT scan by his primary care physician, nonparty Dr. Peri. Dr. Guerrero reported the findings of this study, including "focal heterogenous opacity within the anterior left lower lobe which contains a 7mm x 8mm x 8mm noncalcified nodule, small lucencies measuring up to 4mm and noncalcified nodules measuring up to 3mm." In the impression section, Dr. Guerrero noted "Suggest follow-up low dose noncontrast CT of the chest in 3 months to assess stability."

Dr. Guerrero testified that prior studies are usually "included in the packet" that she receives from Sinai Diagnostics, but in this case the March 2017 images were "not provided" at the time she wrote her initial report. She wrote an addendum to the report dated February 21, 2019, comparing the study to the March 2017 chest CT scan at the request of the patient's daughter. In the addendum, she noted that the 7mm x 8mm x 8mm nodule was a new finding not in the previous study, and "neoplastic change within an area of scarring is not excluded." She added "Consider further evaluation with PET/CT and close interval follow-up is recommended." She testified and noted in the medical records that these results were discussed with the patient, his daughter, and his referring physician, nonparty Dr. Peri.

On February 27, 2019, the patient underwent a PET/CT scan at Bay Ridge Imaging P.C. Dr. Khodadadian interpreted the study and noted the anterior left lower lobe findings "suggestive of an infectious/inflammatory process or slow-growing malignancy."

The patient was seen by pulmonologist Dr. Russi on February 28, 2019. Dr. Russi testified that he reviewed the CT scan report dated February 13, 2019 and the PET scan report, but did not view Dr. Guerrero's addendum dated February 21, 2019. On examination, Dr. Russi noted the patient's lungs were "clear," and he attributed the patient's cough to being recently "sick with cold." In a letter to the patient's primary care physician, Dr. Russi noted a "very low" suspicion for cancer and recommended a repeat CT scan in three months, follow-up appointment in three months, and "no role for biopsy at this time."

On May 24, 2019, the patient underwent a follow-up CT chest scan at Sinai Diagnostics. Dr. Guerrero interpreted the results and reported "no significant interval change" to the left lower lobe nodule and no increase in other pulmonary nodules. She added "continued follow-up with CT chest at a clinically appropriate interval recommended."

On May 28, 2019, Dr. Russi saw the patient for his three-month follow-up appointment. Dr. Russi testified that he reviewed only Dr. Guerrero's preliminary report at that time, which read "no significant change in size or appearance of 8mm LLL nodular opacity, no significant change of other tiny nodules." He initially recommended a follow-up in six months.

However, after reviewing the CT images himself, Dr. Russi added a handwritten note to the patient's chart reading "6-5-19. Concerning --> PET." He testified that after reviewing the CT films, "alarm bells were ringing in my head" and he felt the patient needed to take "further action" before six months. As reflected in handwritten notes and his testimony, Dr. Russi presented the patient's case to other physicians at a tumor board meeting on June 11, 2019, and they "agreed that this is a high suspicion" for cancer. After the tumor board meeting, Dr. Russi communicated with the patient's daughter and primary care physician to refer him to nonparty thoracic surgeon Dr. Harrison for biopsy.

The patient presented to nonparty Dr. Harrison on June 14, 2019. He was also assessed by nonparty Dr. Crawford, another thoracic surgeon, on June 24, 2019. Although both providers discussed lobe resection, the surgical procedure was ultimately delayed to September 12, 2019, due to the patient traveling out of the country in the interim.

On September 12, 2019, the patient underwent a VATS (video-assisted thorascopic surgery), bronchoscopy, left lower lobe wedge resection, lobectomy, and mediastinal lymph node dissection performed by nonparty Dr. Cerfolio at NYU. The pathology results revealed invasive lung adenocarcinoma with metastasis into the lymph nodes.

The patient subsequently underwent multiple rounds of chemotherapy. In December 2022, he began exhibiting neurological symptoms as the cancer had metastasized to his brain.

Plaintiffs allege that pulmonologist Dr. Russi departed from the standard of care in his evaluation and treatment of the patient in February 2019 and May 2019 and failed to timely recommend biopsy.

Plaintiffs' claims against Dr. Khodadadian and Bay Ridge Imaging P.C. arise from their interpretation and report of the PET/CT scan results on February 27, 2019.

Plaintiffs' claims against Dr. Guerrero arise from her interpretation and report of the CT scan results on February 13, 2019, the amended report on February 21, 2019, and the interpretation and report of the CT scan on May 24, 2019.

Their claims against Sinai Diagnostics are based on vicarious liability for Dr. Guerrero, as well as a direct claim against the facility for failing to provide the March 2017 study for comparison.

Plaintiffs allege that all these departures from the standard of care resulted in delayed diagnosis and worsened prognosis of the patient's lung cancer.

In evaluating a summary judgment motion in a medical malpractice action, the court considers the "essential elements" of medical malpractice: "(1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (Miller-Albert v EmblemHealth, 231 AD3d 1147, 1148 [2d Dept 2024] [internal quotation marks and citations omitted].) "Thus, a defendant moving for summary judgment must make a prima facie showing either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the patient's injuries. To meet that burden, a defendant must submit in admissible form factual proof, generally consisting of affidavits, deposition testimony and medical records, to rebut the claim of malpractice." (I.d.) "If the defendant makes such a showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof" (Delia v Wieder, 236 AD3d 857, 858 [2d Dept 2025]). "Generally, summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" (Garcia v Hollander, 241 AD3d 651, 653 [2d Dept 2025] [internal quotation marks and citations omitted].) However, "expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" (Barnaman v Bishop Hucles Episcopal Nursing Home, 213 AD3d 896, 898-899 [2d Dept 2023]).

Dealing first with the motion of pulmonologist Dr. Russi (Seq. No. 5), the movant submits an expert affirmation from Edwin Neil Schachter, M.D. ("Dr. Schachter"), a licensed physician board certified in internal medicine, pulmonary disease, and critical care medicine.

Dr. Schachter opines that Dr. Russi acted within the standard of care at all times when evaluating and treating the patient as a pulmonologist. He opines that on his first visit on February 28, 2019, he appropriately examined the patient and reviewed his radiological studies. He notes that at the time, the patient had no symptoms other than a "previous cold and cough which had resolved following a course of antibiotics," and he denied shortness of breath and chest pain. He opines that Dr. Russi properly followed the "Fleischner criteria," a guideline for approaching a semisolid nodule larger than 6 mm. In accordance with the standard of care, he opines that Dr. Russi recommended a 3-6 month follow-up (in this case, three months) to see if the nodule grew larger or smaller. The expert opines that it is not the standard of care to biopsy all lung nodules, as many turn out to be benign, and a lung biopsy is an invasive surgery that carries a risk of "serious medical complications" including pneumothorax.

He further opines that although Dr. Russi testified that he personally reviewed the February 2019 CT scan images, it is within the standard of care for a pulmonologist to rely on the radiologist's report, which also recommended a three-month follow up on February 13, 2019. He notes that Dr. Russi "never had the opportunity to review" the February 21, 2019 addendum written by Dr. Guerrero, which stated the 8mm nodule was a new finding compared to March 2017 and that "neoplastic change" was not excluded. Nonetheless, the expert opines that a three-month follow-up was still an appropriate recommendation for a mass of this kind, and a biopsy was not warranted at that time. The expert also opines that the February 27 PET/CT scan only indicated a "low" suspicion for cancer. For these reasons, Dr. Schachter opines that it was within the standard of care for Dr. Russi to schedule a repeat CT scan and appointment in three months and not to recommend biopsy.

On the May 28, 2019 appointment, the expert states that the patient reported "no complaints" and his vital signs and physical examination were normal. The expert notes that Dr. Russi had only reviewed Dr. Guerrero's preliminary faxed report at that time, not the CT scan images, and he relied on her assessment "that there was no change in the nodule." The expert opines that Dr. Russi's recommendation of a six-month follow-up complied with the standard of care.

Dr. Schachter further opines that after the May 28, 2019 visit, Dr. Russi reviewed the CT images and "correctly was no longer comfortable with a six-month follow-up." On June 11, 2019, the expert opines that Dr. Russi appropriately "escalated" the case by discussing it with the tumor board, then referred the patient to a thoracic specialist for further evaluation and tissue diagnosis.

On the issue of proximate causation, Dr. Schachter relies on the CT scan reports to opine that there was no "appreciable change in the size of the left lower lobe nodule" between February 2019 and May 2019, and therefore there was "no progression" of the nodule or the patient's cancer during the time he was treated by Dr. Russi. After June 11, 2019, the expert opines that Dr. Russi had effectively completed his role in the patient's treatment. He notes that after his referral to Dr. Harrison, the patient ultimately sought treatment with a different thoracic surgeon, and his biopsy was delayed by a planned and unplanned trip out of the country. He opines that Dr. Russi did not contribute to any delay in his diagnosis after June 11, 2019.

The movant also submits an expert affirmation from Joshua K. Sabari, M.D. ("Dr. Sabari"), a licensed physician board certified in internal medicine and oncology and hematology.

Plaintiffs argue in opposition that Dr. Sabari has not established qualifications to opine on the standard of care in this case. The Court will not consider Dr. Sabari's opinions as to the standard of care for a pulmonologist, but will consider his opinions on proximate causation. Based on his background and experience in oncology, Dr. Sabari has laid a proper foundation to review the radiological studies and opine on whether the alleged delay in diagnosis impacted the prognosis or spread of the patient's lung cancer.

Dr. Sabari opines from an oncological perspective that Dr. Russi's alleged acts and omissions from February 2019 to June 2019 "did not cause or contribute to a delay in plaintiff's later lung cancer diagnosis, cancer treatment course, or outcome." Specifically, he opines that there was "little to no change" to the size of the nodule between the February 2019 and May 2019 CT scans, and therefore the alleged delay arising from Dr. Russi recommending a three-month follow up rather than a biopsy on February 28, 2019, did not worsen the patient's prognosis or outcome. Dr. Sabari opines that the cancer was a "slow growing local metastasis" at that time, and it had not yet spread to the lymph nodes between the February and May CT scans.

Dr. Sabari opines that the more significant progression of the patient's lung cancer likely occurred after June 2019. The expert notes that as the patient traveled out of the country and followed up with multiple thoracic surgeons, his biopsy was delayed an additional three months for reasons not attributable to Dr. Russi. Based on the September 20, 2019 pathology report, the expert opines that the tumor was present in one lymph node and measured between 1-2 cm. He opines that this indicates the cancer was still in an "earlier stage." However, he opines that based on the patient's pathological markers, he was genetically predisposed to a "poor prognosis and increased rate of recurrence," regardless of the alleged delay in treatment.

Based on evaluation of these submissions, the Court finds that Dr. Russi has established prima facie entitlement to summary judgment in his favor. The movant's experts have rendered opinions that the treatment and recommendations of Dr. Russi from February 28, 2019 through June 11, 2019 complied with the standard of care, and that his alleged delay in recommending a biopsy did not proximately cause or contribute to a worsening of his cancer during that period. The burden therefore shifts to Plaintiffs to raise an issue of fact.

In opposition, Plaintiffs submit an expert affirmation from a licensed physician [name of expert redacted], board certified in pulmonary disease and internal medicine. A signed, unredacted copy of the expert affirmation was presented to the Court for in camera inspection.

Plaintiffs' pulmonary expert opines that Dr. Russi departed from the standard of care in his evaluation and treatment of the patient on February 28, 2019, and failing to recommend a biopsy to rule out cancer at that time. The expert also opines that Dr. Russi departed from the standard of care by failing to recommend a biopsy until June 11, 2019.

The expert opines that the standard of care for a pulmonologist is to personally review the CT scan images as well as the radiologist's report. The expert states that it was "consistent with accepted practice for a pulmonologist" that Dr. Russi did review the February 13 images at the appointment. However, based on the expert's own review of the images, they opine that the February 13 CT scans "clearly demonstrate a left lower lobe nodule that is highly suggestive for malignancy," due to the area's irregular borders and mixed density. Further, the expert opines that the PET/CT scan report dated February 27 demonstrated a high suspicion for malignancy due to metabolic update corresponding with the left lower lobe, "which was further evidence that this was lung cancer until proven otherwise."

The expert also opines that Dr. Russi failed to properly assess the patient's reported coughing symptoms. In the expert's opinion, it is the standard of care for a pulmonologist to carefully document the "onset, duration, and severity" of coughing, particularly in a regular smoker due to the higher risk of lung cancer. He opines that Dr. Russi's note that he merely "experienced a cold and completed a course of antibiotics" constituted a departure from the standard of care and did not address the nature of his cough, such as whether it was dry (more suspicious for malignancy) or productive. In light of this, the expert opines that the pulmonologist failed to adequately assess the patient's symptoms and risk of cancer.

In the expert's opinion, the standard of care was to recommend an "immediate lung biopsy" to rule out cancer based on the radiological findings, especially in light of the fact the patient was a smoker. He counters the opinion of the movant's expert that these results did not warrant a lung biopsy, opining that it was "the only appropriate course of action" based on his review of the radiological films. He disagrees with the movant's expert that it was appropriate to follow the "Fleischner criteria" of 3-6 month follow up. He opines that the patient showed a large lesion with a high risk of malignancy. He further notes that based on similar information in the May 2019 CT scan, Dr. Russi himself did not follow that criteria when he ultimately recommended a biopsy in June 2019, despite the movant's experts opining there was little or no change in the nodule. The expert opines that Dr. Russi greatly departed from the standard of care on February 28, 2019 when he "specifically recommended against performing a biopsy" and reported to the patient and his primary care physician that the suspicion of cancer was "very low."

On May 28, 2019, the expert opines that Dr. Russi again departed from the standard of care in his assessment of the patient's repeat CT scan. Based on his own review of the May 24 CT images, the expert opines that "the left lower lobe nodule had increased in size compared with the February 13, 2019 study. Plaintiffs' expert opines that Dr. Russi's recommendation to follow up in six months, rather than recommending a biopsy, was "erroneous" and constituted a deviation from good and accepted practice.

The expert notes that approximately two weeks later, on June 11, 2019, Dr. Russi changed his initial "wait-and-do-nothing approach," and he recommended a biopsy after further review of the CT scan and discussion with the tumor board. The expert opines that this delay in recommending biopsy and referring the patient to a surgeon constituted a departure from the standard of care.

On the issue of proximate causation, Plaintiffs' expert opines that if the patient's lung cancer had been diagnosed with a biopsy as early as late February or early March 2019, it would have been caught at stage I, and his prognosis and chance of recovery would have been substantially greater. He opines that the PET scan from February 27, 2019 "ruled out any evidence of metastasis" and indicated the cancer was still in "early stage I" and had not spread beyond the left lower lobe lesion. By recommending a three-month follow-up, the expert opines Dr. Russi allowed "the untreated malignancy to continue to grow and metastasize" during those months.

Plaintiffs also submit an expert affirmation from a licensed physician [name of expert redacted], board certified in diagnostic radiology. A signed, unredacted copy of the expert affirmation was presented to the Court for in camera inspection.

Plaintiffs' diagnostic radiology expert primarily opines on the standard of care for the radiologists in this case, and those opinions will be discussed in more detail below. However, on the issue of proximate causation, the radiology expert reviewed the February 2019 and May 2019 CT scans, and rendered opinions as to the progression of the patient's cancer during that time. The radiology expert opines that the May 24, 2019 CT scan showed "persistent presence and further growth" of the nodule suggestive of malignancy, and that there was "clear and evident growth of the nodular left lower lobe opacity as compared to the February 2019 chest CT scan."

Finally, Plaintiffs submit an expert affirmation from a licensed physician [name of expert redacted], board certified in medical oncology, hematology, and internal medicine. A signed, unredacted copy of the expert affirmation was presented to the Court for in camera inspection.

Plaintiffs' oncology expert opines primarily on the issue of proximate causation and the progression of the patient's lung cancer. The expert explains that lung cancer is characterized as either small cell lung cancer (SCLC) or non-small cell lung cancer (NSCLC), and treatment is determined by the type and stage at diagnosis.

The expert opines that the standard treatment for suspected lung cancer is "surgical resection of the lung lesion and intraoperative lymph node sampling." At stage I, complete surgical resection is possible to remove the lesion and cure the patient of cancer. However, once the cancer has spread to lymph nodes or other organs, "life expectancy is substantially diminished, and survival is substantially reduced." Treatment options include surgery, radiation therapy, and chemotherapy.

Here, the oncology expert opines that the patient's February 13, 2019 CT scan and February 27, 2019 PET scan were suspicious for lung cancer, but the PET scan was "negative for any lymph node involvement." Thus, the expert opines that if a tissue diagnosis were made in February or early March 2019, the patient could have been treated for stage I-A lung cancer before it spread to his lymph nodes. The expert notes that the five-year survival rate for patients diagnosed with stage I lung cancer is 86%.

Plaintiffs' oncology expert disagrees with Dr. Sabari's opinion that there was no growth or lymphatic spread of the cancer between February 2019 and June 2019. The oncologist concurs with Plaintiffs' pulmonary and diagnostic radiology experts that the nodule did grow between the February 2019 and May 2019 CT scans, "as would be expected with lung adenocarcinoma." The expert opines that the growth, division, and spread of cancer cells to other parts of the body is "continuous" and uncontrollable, and that any delay in diagnosis between February/March 2019 and June 2019 (when Dr. Russi first recommended biopsy) was a proximate cause of his worsened prognosis.

At the time of his September 2019 diagnosis, the patient had stage II-B lung cancer with lymph node involvement. The oncology expert opines that at this stage, the five-year survival rate drops to 54%, and "there is an increased likelihood that the cancer cells will continue to spread through the lymphatic network to distant nodes and organs." Thus, the expert opines that the delay in diagnosis for the patient's cancer was a substantial factor in "converting a localized, potentially curable disease into an incurable condition," ultimately spreading to the patient's brain in 2022. As of this date, the expert opines that the patient "will more likely than not succumb to complications of metastatic lung cancer in less than five years."

The Court finds Plaintiffs have raised issues of fact sufficient to defeat Dr. Russi's motion for summary judgment in its entirety. The parties' pulmonary experts have presented conflicting opinions as to whether he departed from the standard of care on February 28, 2019 by concluding the patient's cancer risk was "very low," scheduling a follow up in three months, and specifically recommending "no role for biopsy" at that time. The Court notes that while Dr. Khodadadian's PET/CT scan report did not expressly recommend biopsy, he documented the potential "malignancy" suggested by the fluorodeoxyglucose findings, and this report was available to Dr. Russi. Plaintiffs' pulmonary expert also raises an issue of fact as to Dr. Russi's initial recommendation of a six-month follow up and his delay in recommending a biopsy after the May 28, 2019 appointment, although they acknowledge he ultimately referred the patient to a thoracic surgeon on June 11.

On proximate causation, the conflicting opinions of the parties' oncology experts have raised clear issues of fact as to whether the alleged delay in diagnosis substantially impacted the patient's prognosis, treatment options, and outcome. While the movant's expert opines that the lung cancer did not significantly grow or spread during the approximate 3-4 month period (between late February and June) attributable to Dr. Russi, Plaintiffs' experts offer a detailed conflicting opinion that the cancer was more localized and curable in February/March 2019 in comparison to his eventual diagnosis. Plaintiffs' oncology and radiology experts further opined that the nodule had already grown larger as of the May 2019 CT scan, countering the opinion of the movant's expert.

Therefore, there remain questions of fact as to the degree an earlier diagnosis and treatment would have altered the patient's outcome or halted the lymphatic spread of the disease. While the movant's oncology expert Dr. Sabari characterizes the cancer as "slow-growing" at the time of his treatment by Dr. Russi, Plaintiffs' oncology expert opines that his cancer cells were "uncontrollably" and continuously growing and dividing. The Court notes that in support of their separate motion for summary judgment, which will be discussed further below, Dr. Khodadadian's pathology expert opines that the patient had a particularly "aggressive tumor with high metastatic potential."

These conflicting expert opinions as to the growth and spread of the patient's lung cancer present clear issues of fact as to whether any delay in recommending a biopsy before June 11, 2019 was a proximate cause of the patient's eventual stage II-B diagnosis and further metastasis. "As to causation, the plaintiff's evidence may be deemed legally sufficient even if its expert cannot quantify the extent to which the defendant's act or omission decreased the plaintiff's chance of a better outcome or increased his injury, as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased his injury" (Starre v Dean, 229 AD3d 728 [2d Dept 2024], quoting Neyman v Doshi Diagnostic Imaging Services, P.C., 153 AD3d 538, 545 [2d Dept 2017]).

Although there was an additional three-month gap between Dr. Russi's biopsy recommendation in June and the patient's diagnosis in September, "the mere fact that other persons share some responsibility for plaintiff's harm does not absolve [a] defendant from liability because there may be more than one proximate cause of an injury" (see Mazella v Beals, 27 NY3d 694 [2016] [internal quotation marks and citations omitted]). It is the jury's role in this case to determine the extent of comparative liability or contributory negligence, if any, by the patient. Accordingly, the motion for summary judgment is denied as to all medical malpractice claims against Dr. Russi.

Turning to the motion of Dr. Guerrero (Seq. No. 2), the movant submits an expert affirmation from Joseph Racanelli, M.D. ("Dr. Racanelli"), a licensed physician board certified in radiology.

Dr. Racanelli opines that Dr. Guerrero's interpretation and report of the February 13, 2019 CT scan complied with the standard of care for a radiologist. Based on his own review of the chest CT images, he opines that Dr. Guerrero properly identified and described the anterior left lobe nodule. Further, he opines that she properly described it as "non-calcified" referring to the density of the nodule, and she properly reported that "this patient needed further follow up to assess the nature of this nodularity." The expert opines that she properly recommended a 3-month follow-up CT scan to assess the nodule.

The expert notes that Dr. Guerrero did not have the March 2017 study for comparison at the time of her initial report, because she only had the images "provided to her by Sinai Diagnostics where the studies were performed." He opines that she met the standard of care by reviewing all the images that were provided to her in the initial February 13, 2019 report.

The expert opines that when Dr. Guerrero was given a copy of the March 2017 study by the patient's family, she properly and timely wrote her addendum dated February 21, 2019 comparing the two studies. Dr. Racanelli opines that Dr. Guerrero appropriately noted in this addendum that the nodule was a new finding and that it had irregular borders. The expert also opines that she "appropriately raised the suspicion for a possible lung malignancy by clearly stating that in a patient with a smoking history, neoplastic change within an area of scarring was not excluded." The expert opines that Dr. Guerrero "identified at least five factors which were indeed suggestive of malignancy" — the size of the nodule, the fact it was non-calcified, the irregular borders, the surrounding opacity, and the fact it was new. Dr. Racanelli opines that malignancy cannot be diagnosed from a chest CT scan alone, and Dr. Guerrero appropriately recommended "close interval follow-up" and further evaluation with a PET/CT scan.

Dr. Racanelli opines that the fact Dr. Guerrero did not expressly recommend biopsy did not constitute a departure from the standard of care. He opines that she appropriately recommended a PET/CT scan, which "would determine if a biopsy was warranted by providing additional radiographic information about the nodule." The expert opines that it is outside the role of a diagnostic radiologist to refer the patient to a thoracic surgeon or oncologist, or to consult with the treating physician. He opines that her duty was to "review all parts of the study, describe all findings, reach an impression, and make recommendations on that impression," and she appropriately submitted her report to Dr. Peri, the patient's primary care physician who ordered the study.

Regarding the May 2019 CT scan, Dr. Racanelli opines that Dr. Guerrero properly compared it to the prior studies and timely transmitted the results to the patient's ordering physician, Dr. Russi. The expert does not offer any other opinions on her interpretation and report of the May 2019 CT scan.

The expert opines that any alleged delay between Dr. Guerrero's initial February 13, 2019 report and the February 21, 2019 addendum did not proximately cause a delay in the patient's eventual diagnosis and treatment.

Based on the submissions, the Court finds that Dr. Guerrero's expert has set forth opinions that she complied with the standard of care in her interpretation and report of the February 2019 CT scan. "Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient. The existence and scope of a physician's duty of care is a question of law to be determined by the court." (Abruzzi v Maller, 221 AD3d 753, 755 [2d Dept 2023] [internal quotation marks and citations omitted].) Here, the movant's expert acknowledges that part of the radiologist's duty is to report findings and "make recommendations," which are relayed to the patient's treating physician. The movant's expert opines that Dr. Guerrero's initial recommendation of a 3-6 month follow-up was appropriate. The expert also opines that her addendum recommending a PET scan was within the standard of care, as this test would provide more information on whether a biopsy was indicated. Additionally, the movant offers an expert opinion that Dr. Guerrero properly compared the CT scan to the prior study once it was made available to her. The expert opines that Dr. Guerrero's report contained sufficiently clear indications of the nodule's possible malignancy and the fact that cancer was not ruled out.

However, the movant's expert does not address any claims with respect to Dr. Guerrero's interpretation, report, and recommendations when she reviewed the May 2019 CT scan, other than the fact it was properly compared with the prior studies.

It is the burden of the movant's expert to address all claims in the bill of particulars. Plaintiffs' second supplemental bill of particulars, which was submitted with the moving papers, included "failed to recommend a biopsy in view of morphologic features and growth of the nodule in the left lower lobe on May 24, 2019." As the expert did not address those claims, they have failed to meet their prima facie burden on the alleged departures.

On proximate causation, the expert primarily focuses on the "eight day" delay between Dr. Guerrero's original report and the February 21 addendum, which they opine had no impact on the patient's prognosis or treatment, as he underwent a PET/CT and those results (but not Dr. Guerrero's addendum report) were available to the pulmonologist at his February 28 appointment. The movant's expert does not address proximate causation beyond this "eight day" delay in comparing the February 2019 images to the March 2017 study.

As Plaintiffs argue in opposition, this is not sufficient to establish prima facie that the overall delay in the patient's diagnosis was not proximately caused by Dr. Guerrero's assessment of the February 2019 images and recommendation for a 3-6 month follow-up rather than biopsy. As the expert's opinion is based on a pinholed segment of the events and does not address all Plaintiffs' claims, the Court finds that Dr. Guerrero has not established their prima facie burden as to both liability and proximate cause for summary judgment.

Notwithstanding Dr. Guerrero's failure to establish her prima facie burden, Plaintiffs submit an expert affirmation in opposition from a licensed physician [name of expert redacted], board certified in diagnostic radiology. A signed, unredacted copy of the expert affirmation was presented to the Court for in camera inspection.

Plaintiffs' diagnostic radiology expert opines that Dr. Guerrero departed from the standard of care in interpreting and reporting both the February 2019 and May 2019 CT scan results, including her recommendations for follow-up testing.

The expert opines that the patient had both clinical and radiological indications of malignancy, which Dr. Guerrero should have appreciated. The patient's risk factors included his history of smoking, and his radiological findings included the large size and density (non-calcified) of the nodule. The expert opines that the patient's February 2019 CT scan was "highly suggestive of malignancy." In the expert's opinion, Dr. Guerrero's report did not sufficiently convey to the treating physicians "that cancer is suspected and should be ruled out." Specifically, the expert opines that her initial report of the February 13, 2019 CT scan did not address the potential malignancy and recommended a three-month follow up rather than tissue sampling.

Plaintiff's expert also counters the opinion of the movant's expert that Dr. Guerrero's findings in the February 21, 2019 addendum "implied" a suspicion of cancer by referring to "neoplastic changes," and that this was sufficiently reported to the patient and his primary care physician. The expert opines that the term neoplasm is too broad and can refer to benign growths. The expert opines that the standard of care required Dr. Guerrero to use "appropriate terminology" and report "suspicion for malignancy or cancer warranting a biopsy." The expert opines that the February 21, 2019 recommendation of a PET/CT scan and "close interval follow-up," rather than biopsy, constituted a departure from the standard of care.

The expert further opines that Dr. Guerrero improperly interpreted and read the May 2019 CT scan by stating there was no significant growth or change in the nodule. The expert opines there was "clear and evident growth" compared to the February 2019 study, and this "constituted further evidence that this represented lung cancer until proven otherwise." They opine that she departed from the standard of care by again failing to recommend biopsy in the report.

In the expert's opinion, Dr. Guerrero's interpretation of the CT scans and not recommending a biopsy proximately caused the patient's delay in diagnosis and a worsened prognosis of his cancer. The expert states that Dr. Guerrero "squandered multiple opportunities to accurately report upon the abnormal lung nodule that was suspicious for lung cancer and recommend a biopsy."

Plaintiffs also submit the aforementioned expert affirmation from a medical oncologist as to proximate causation. The unredacted affirmation was presented to the Court for in camera inspection.

As discussed in Dr. Russi's motion above, Plaintiffs' oncology expert opines that the delay in diagnosis and treatment as early as February or March 2019 proximately caused the patient's lung cancer to grow and metastasize, resulting in a decreased chance of survival once it spread to his lymphatic system.

In sum, although Dr. Guerrero did not establish prima facie that she complied with the standard of care, Plaintiffs' radiology expert has nonetheless raised triable issues of fact as to her review of the February 2019 CT scan and the addendum report. While the Court finds that Dr. Guerrero's duty was limited to interpreting, reporting, and making recommendations, the parties' experts have offered conflicting opinions as to her interpretation of the study, her reporting of whether it was suggestive of malignancy, and whether she should have recommended a biopsy rather than a three-month follow-up and PET scan only. There also remain issues of fact as to whether these alleged departures proximately caused or contributed to his delayed diagnosis and worsened outcome.

Additionally, although the movant did not submit opinions with respect to the May 2019 CT scan, Plaintiffs' expert raised issues of fact that Dr. Guerrero did not appreciate the growth of the nodule or recommend biopsy in her report. Thus, even if the movant had met their prima facie burden on all claims, Plaintiffs' expert raised issues of fact which preclude summary judgment. For these reasons, Dr. Guerrero's motion for summary judgment is denied.

In support of the motion of Sinai Diagnostics (Seq. No. 3), the movant submits an expert affirmation from Evan Robert Mair, M.D. ("Dr. Mair"), a licensed physician board certified in diagnostic radiology.

In reference to the direct claim against Sinai Diagnostics, Dr. Mair does not address Plaintiffs' claim that Sinai Diagnostics failed to provide the March 2017 images for comparison, only states that Dr. Guerrero was "unaware" of the prior study when she first reviewed the February 13, 2019 images.

On the vicarious liability claims on behalf of Dr. Guerrero, a Sinai Diagnostics employee, Dr. Mair renders additional opinions as to her alleged departures from the standard of care. Based on his review of the images, Dr. Mair opines that Dr. Guerrero properly described the left lower lobe nodule in her initial February 13, 2019 report, which was given to the patient and his primary care provider and later reviewed by Dr. Russi. Dr. Mair opines that she "correctly recommended a follow-up CT scan in three months." He opines that this approach is within the standard of care for a nodule measuring 7-8mm with heterogenous opacity.

Dr. Mair further opines that Dr. Guerrero acted within the standard of care by comparing the February 2019 CT scan to the March 2017 images once those images were made available to her by the patient's family. Dr. Mair opines that in the addendum report, Dr. Guerrero correctly described the nodule as a new finding with irregular borders. He opines that she identified the factors of the nodule suspicious for malignancy in her original report and February 21, 2019 addendum, and the standard of care did not require her to expressly state that malignancy was suspected. He opines that her impression and recommendation of a PET/CT scan was the proper course of action that would assist his treating physicians in "diagnosing a suspected malignancy," and that test (which the patient underwent days later) would better indicate whether or not a biopsy was warranted. Thus, he opines she did not depart from the standard of care by not recommending a biopsy in the initial report or the addendum. He also notes that as a diagnostic radiologist, Dr. Guerrero did not have a duty to "order" a biopsy or make a direct referral to a thoracic surgeon, only to make recommendations to the patient's treating physician.

The Sinai Diagnostics movants also submit an expert affirmation from Deborah Blythe Doroshow, M.D. ("Dr. Doroshow"), a licensed physician board certified in medical oncology and internal medicine.

Dr. Doroshow's opinions on proximate causation focus on the alleged failure to timely compare the February 2019 to the March 2017 study. She emphasizes that the "mere eight days" between Dr. Guerrero's February 13, 2019 CT scan and the February 21, 2019 addendum was "not a sufficiently long enough period of time to make a difference in [the patient's] diagnosis or subsequent treatment." She notes that Plaintiff underwent a PET scan on February 27, 2019 as a result of her recommendation in the addendum, and his pulmonologist reviewed both the CT and PET scan results on his first visit on February 28, 2019. She also notes that the patient "was subsequently seen by his primary care physician, a pulmonologist, and four different cardiothoracic surgeons over the course of six months before a final diagnosis of lung cancer was made."

It is noted that no opinion was submitted with respect to Dr. Guerrero's alleged departures from the standard of care in reading the May 2019 CT scan. However, for the purpose of his causation opinions, Dr. Doroshow opines that the May 2019 CT scan and a subsequent CT scan from August 2019 "showed little to no growth of the left lower lobe nodule," and therefore the alleged delay in diagnosis and treatment did not proximate cause or contribute to his worsened condition.

As the experts on behalf of facility do not include opinions as to all the films Dr. Guerrero reviewed, they have failed to eliminate issues of fact and establish prima facie entitlement to summary judgment on the direct or vicarious claims against Sinai Diagnostics.

Notwithstanding, Plaintiffs submit the aforementioned expert affirmations in opposition from a diagnostic radiology expert and an oncology expert.

In addition to the opinions regarding Dr. Guerrero already discussed, Plaintiffs' radiology expert opines that Sinai Diagnostics departed from the standard of care by failing to provide Dr. Guerrero with the March 2017 CT scan for comparison. The expert states that "it is core diagnostic function and a recognized component of proper radiologic practice" to compare the current chest CT with prior imaging, and that based on Dr. Guerrero's testimony, the prior scan was not provided to her by the facility. The expert opines that this failure to make all prior studies available for comparison constituted a departure from the standard of care.

Based on these submissions, the Court finds Plaintiffs have raised a triable issue of fact with respect to their direct claim that Sinai Diagnostics failed to provide the March 2017 study to Dr. Guerrero for comparison. Their expert opines that it was a departure from the standard of care for the diagnostic radiology facility not to provide such records, as the prior study took place at their facility.

Furthermore, there are issues of fact as to whether this alleged departure proximately caused a delay in the patient's diagnosis. The movants emphasize that the length of time between Dr. Guerrero's initial report and her February 21, 2019 addendum was brief and had no effect on his outcome or treatment. However, the addendum report (which stated the nodule was a new finding compared to March 2017 and "neoplastic changes" were not excluded) was never seen by his pulmonologist Dr. Russi, raising at least an issue of fact as to what effect the absence of those findings had on his follow-up recommendations and orders. Thus, the Court finds that even if Sinai Diagnostics had met their prima facie burden on the direct claim, Plaintiffs have raised issues of fact and summary judgment must be denied.

There also remain triable issues of fact with respect to Dr. Guerrero's acts and omissions, for which Sinai Diagnostics bears vicarious liability as her employer. As discussed in her individual motion for summary judgment above, Plaintiffs' expert has raised triable issues of fact regarding Dr. Guerrero's interpretation of the February 2019 and May 2019 CT scans and her recommendations. The movants do not contest that Dr. Guerrero was acting in the scope of her employment with Sinai Diagnostics at the time of these events. Therefore, Sinai Diagnostics' motion for summary judgment must be denied as to the vicarious liability claims against them.

For these reasons, the motion of Sinai Diagnostics is denied with respect to the direct claim regarding the March 2017 images and all vicarious liability claims on behalf of Dr. Guerrero.

Finally, in support of the motion from Dr. Khodadadian and Bay Ridge Imaging P.C. (Seq. No. 4), the movant submits an expert affirmation from Allan L. Schuss, M.D. ("Dr. Shuss"), a licensed physician board certified in pathology. The expert sets forth that he has extensive experience in thoracic and oncological pathology, including "evaluation, assessment, diagnosis, and treatment of cancers, including lung cancer and potential metastasis."

The pathology expert states without detail that Dr. Khodadadian and Bay Ridge Imaging P.C. "did not depart from accepted standards of care in preventing, diagnosing, and/or treating lung adenocarcinoma in the plaintiff." He does not provide any further discussion of Dr. Khodadadian's impression or report of the February 27, 2019 PET/CT scan.

The movant's expert opines primarily on the issue of proximate causation. He states that the patient's pulmonary adenocarcinoma tumor is a type of non-small cell lung carcinoma which "displays diverse morphologic patterns that bear distinct prognostic and biologic implications." The expert opines that the patterns of such tumors are "intrinsic to the individual tumor's biologic nature and do not vary significantly over time."

Specifically, the expert opines that the pathology of the patient's tumor was KRAS mutation-positive, a gene associated with "uncontrolled cell growth and development of cancer." He opines that this type of mutation has "moderate-to-poor responses to cytotoxic chemotherapy and limited targeted therapeutic options." The patient also exhibited an absence of PD-L1 protein, which "predicts reduced likelihood of benefit from immune checkpoint inhibitor therapy" and further limited his treatment options. The expert therefore opines that the patient had a "biologically aggressive tumor with high metastatic potential and limited responsiveness to both standard chemotherapy and immunotherapy," regardless of the timing of his diagnosis. The expert opines that the patient's recurrence of lymph node metastases and his diagnosis with brain metastases in December 2022, even after undergoing chemotherapy, "is consistent with the natural history of a high-grade, KRAS-mutated, micropapillary/signet ring adenocarcinoma," reflecting "the tumor's intrinsic aggressiveness rather than any technical or treatment-related failure."

The expert opines that it is "virtually impossible to determine" exactly when the tumor became metastatic in the patient's case, as metastasis is "not a single event but a process." Notwithstanding, the expert opines that the patient's "voluntary delay" in obtaining a biopsy between June 2019 and September 2019 "likely permitted continued progression" of the metastasis, and that the alleged departure from the standard of care by Dr. Kaodadadian was not a proximate cause of his worsened prognosis.

The Court finds that the movant's expert affirmation does not sufficiently establish that Dr. Khodadadian complied with the standard of care in interpreting the PET scan. The expert's opinions on this issue are conclusory and provide no information as to the applicable standard of care for a PET scan interpretation, report, or recommendations. Therefore, the movants have failed to address Plaintiffs' claims that Dr. Khodadadian improperly interpreted the February 27, 2019 PET/CT scan and that he failed to recommend a biopsy.

The movant's expert pathologist provides more detailed opinions as to proximate causation. The expert states that it is impossible to know what the metastatic process began in the patient's cancer, but he opines that earlier detection and treatment in February or March 2019 would not have changed his prognosis or outcome, due to its inherently aggressive nature. He opines that the patient's prognosis and lymphatic spread of the disease was unavoidable due to the intrinsic properties of the tumor and its aggressive mutation type, regardless of when it was diagnosed and treated. However, contradictorily, the expert also opines that the patient himself "permitted continued progression" of this inherently aggressive disease by further delaying diagnosis and treatment between June 2019 and September 2019. The Court finds these expert opinions on the issue of proximate causation are speculative and contradictory and, the movant has not removed triable issues of fact as to the extent the patient's prognosis and outcome was worsened by the alleged delay in diagnosis of his aggressive lung cancer in February 2019.

Although Dr. Khodadadian and Bay Ridge Imaging P.C. did not meet their prima facie burden on summary judgment, Plaintiffs oppose the motion and submit the aforementioned expert affirmations from their diagnostic radiologist and oncologist. Plaintiffs' diagnostic radiology expert opines that Dr. Khodadadian departed from the standard of care by failing to recommend a biopsy in his report of the PET/CT scan on February 27, 2019. The expert opines that the findings showed "visible abnormalities suggestive of lung cancer," and the results were "sufficiently suspicious that tissue confirmation was required." While the expert opines that the February 2019 PET/CT scan did not demonstrate any metastasis, it did show FDG (fluorodeoxyglucose) activity corresponding to the anterior left lower lobe with irregular opacity, "which represents malignancy until proven otherwise." Based on these findings, the expert opines that Dr. Khodadadian deviated from the standard of care by not recommending biopsy to rule out cancer at that time.

On proximate causation, as discussed in the prior motions, Plaintiffs submit an expert affirmation from an oncologist who opines that the patient's progression of metastatic lung cancer, treatment options, and chance of survival were significantly worsened by the delay in diagnosis and treatment. With respect to Dr. Khodadadian's report in February 2019, the oncology expert opines that the cancer would still be classified as stage I, it had not metastasized to any lymph nodes or organs at that time, and it could have been resected surgically from the localized tumor in his lung. Thus, the expert disagrees with the movant's expert on proximate causation and opines that the patient was deprived of a better outcome and chance of survival by the alleged departures from the standard of care by Dr. Khodadadian in February 2019.

Based on these submissions, the Court finds that Dr. Khodadadian's expert did not establish prima facie entitlement to summary judgment based on the applicable standard of care, and even if he had met this burden, Plaintiffs' radiology expert sufficiently raised an issue of fact that Dr. Khodadadian departed from accepted medical standards by failing to recommend a biopsy based on the February 2019 PET/CT scan.

Additionally, issues of fact remain on the issue of proximate causation. Although the movant's expert offers detailed opinions on the aggressiveness of the patient's cancer type, summary judgment cannot be granted as a matter of law on that basis, as his opinions on when and how quickly the disease spread are speculative and contradictory. Even if the movant had met their prima facie burden, Plaintiffs' oncology expert presents a conflicting opinion that Dr. Khodadadian's departure from the standard of care in February 2019 proximately caused a delay in diagnosis which deprived the patient of substantially better treatment options and prognosis, because his cancer was localized with no spread to the lymph nodes at that time. Accordingly, the motion for summary judgment in favor of Dr. Khodadadian is denied, as well as the vicarious liability claims against Bay Ridge Medical Imaging P.C. on his behalf.

As there are issues of fact on the underlying medical malpractice claims which must be resolved by a jury, all Defendants' motions are denied with respect to the spouse's derivative claims for loss of services (see Weiss v Vacca, 219 AD3d 1375, 1378 [2d Dept 2023]; Powell v Prego, 59 AD3d 417, 418 [2d Dept 2009]).

Accordingly, it is hereby:

ORDERED that Dr. Guerrero's motion (Seq. No. 2) for summary judgment in her favor is granted to the extent of dismissing any claim of lack of informed consent, and the motion is otherwise denied; and it is further

ORDERED that Sinai Diagnostics' motion (Seq. No. 3) for summary judgment in their favor is granted to the extent of dismissing any claim of lack of informed consent, and the motion is denied as to the direct claims involving the March 2017 study and the vicarious liability claims for the acts and omissions of Dr. Guerrero; and it is further

ORDERED that Dr. Khodadadian and Bay Ridge Medical Imaging, P.C.'s motion (Seq. No. 4) is granted to the extent of dismissing any claim of lack of informed consent, and the motion is otherwise denied; and it is further

ORDERED that Dr. Russi's motion (Seq. No. 5) is granted to the extent of dismissing any claim of lack of informed consent, and the motion is otherwise denied.

This constitutes the decision and order of the Court.

ENTER.

Hon. Consuelo Mallafre Melendez

J.S..C.

Consuelo Mallafre Melendez, J.