Alvarez v. Prospect Hosp.

• Decision Date: 26 December 1985
• Citation: 115 A.D.2d 444,496 N.Y.S.2d 1006
• Parties: Maria ALVAREZ, Plaintiff-Respondent, v. PROSPECT HOSPITAL et al., Defendants, Dr. Jesse D. Stark, Defendant-Appellant, Dr. J. Neill, et al., Defendants. PROSPECT HOSPITAL, Third-Party Plaintiff, v. Patrick WALSH, M.D., Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 1006

496 N.Y.S.2d 1006

115 A.D.2d 444

Maria ALVAREZ, Plaintiff-Respondent, v. PROSPECT HOSPITAL et al., Defendants, Dr. Jesse D. Stark, Defendant-Appellant, Dr. J. Neill, et al., Defendants.

PROSPECT HOSPITAL, Third-Party Plaintiff, v. Patrick WALSH, M.D., Third-Party Defendant.

Supreme Court of New York, Appellate Division,

First Department.

December 26, 1985

M.D. Kessler, New York City, for plaintiff-respondent. P. D'Alvia, New York City, for defendant-appellant.

Order, Supreme Court, Bronx County (Anthony Mercorella, J.), entered on or about November 4, 1983, affirmed, without costs and without disbursements.

All concur except ROSS and MILONAS, JJ., who concur in a memorandum by ROSS, J.; KUPFERMAN, J.P., and ASCH, J., dissent in a memorandum by ASCH, J.; and SANDLER, J., concurs in the result reached on the basis of Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642, all as follows:

ROSS, Justice (concurring):

In late 1978, as a result of the then thirty-two year old plaintiff's complaint of abdominal pain, she was admitted as a patient to Prospect Hospital (Hospital), which was located in the Bronx. Thereafter, in December 1978, while plaintiff was in that Hospital, her attending physician, Dr. J. Neill (Dr. Neill), ordered certain x-rays, including a chest x-ray, an intravenous pyelogram and a barium enema. After these x-rays were taken, Dr. Jesse D. Stark (Stark), who was a Board Certified Radiologist and Chief of Radiology at the Hospital, interpreted the results. In pertinent part, Dr. Stark wrote in his report, dated December 7, 1978, to Dr. Neill, that the barium enema indicated cecal neoplasm of the cecum of the colon, which, in substance, is a cancerous growth in the intestinal area. Our review of the record reveals that Dr. Stark, besides submitting this report, did not discuss either the seriousness of this finding or anything else about this patient with Dr. Neill. Subsequently, on December 16, 1978, plaintiff was discharged from the Hospital with a diagnosis of acute gastroenteritis. Approximately a year later, on December 4, 1979, plaintiff was again a patient in this Hospital, since her abdominal pain had continued. This time the plaintiff's attending physician was Dr. P. Gubitose (Dr. Gubitose), and he, inter alia, requested that Dr. Stark perform another barium enema on the plaintiff. In pertinent part, in his written report, dated December 6, 1979, to Dr. Gubitose, Dr. Stark again made a finding of "cecal neoplasm". Later, in December 1979, the plaintiff underwe a bowel resection to endeavor to remove the malignancy. Subsequent to her surgery, in March 1981, plaintiff commenced this instant medical malpractice action against the Hospital and nine physicians, including Dr. Stark, Dr. Neill and Dr. Gubitose, for failure to make a proper and timely diagnosis of carcinoma of plaintiff's cecum, which is the first segment of her large intestine, and failure to render proper aftercare. Following service of his answer, the furnishing of a bill of particulars to him by plaintiff, and defendant Dr. Stark's own examination before trial, Dr. Stark moved for summary judgment. His motion, in substance, is based upon the ground that his only responsibility to the plaintiff was to interpret the x-rays correctly, which he did since the plaintiff admits that fact. Special Term denied the motion. We agree. Based upon our examination of the record, we find that defendant has failed to make a prima facie showing that entitles him to judgment as a matter of law. "[T]he bare conclusory assertions ... that ... [defendant Dr. Stark] did not deviate from good and accepted medical practices, with no factual relationship to the alleged injury ... [does] not establish that the cause of action has no merit so as to entitle ... [defendant] to summary judgment [citations omitted]". Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [material in brackets added]. Summary judgment is issue finding rather than issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387). The Court of Appeals has held in Toth v. Community Hosp. at Glen Cove, 22 N.Y.2d 255, 263, 292 N.Y.S.2d 440, 239 N.E.2d 368, that: "if a physician fails to employ his expertise or best judgment, and that omission causes injury, he should not automatically be freed from liability because in fact he adhered to acceptable practice." Applying the Toth holding to the instant case, we find that Dr. Stark was more than simply an x-ray technician, and as a consequence of that fact, we conclude that there is an issue of fact as to the extent of the duty he owed to plaintiff. The dissent makes much of the fact that plaintiff has not submitted a medical affidavit of merit in rebuttal to defendant's motion. However, we have held that "[a] movant's failure to sufficiently demonstrate its right to summary judgment requires a denial of the motion regardless of the sufficiency, or lack thereof, of the opposing papers (Winegrad v. New York Univ. Med. Center, 64 NY2d 851 [487 N.Y.S.2d 316, 476 N.E.2d 642]; Zuckerman v. City of New York, 49 NY2d 557 [427 N.Y.S.2d 595, 404 N.E.2d 718]; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065 [416 N.Y.S.2d 790, 390 N.E.2d 298]; Lurie v. Child's Hosp., 70 AD2d 1032 )" (Cugini v. System Lumber Co., Inc., 111 A.D.2d 114, 115, 489 N.Y.S.2d 492 (1st Dept.1985) and [material in brackets added]. There are too many questions unanswered at this time, relative to the standard of care, if any, that defendant owed to plaintiff relative to subsequent treatment. Defendant's attorney's conclusory affirmation, which is not supported by defendant's examination before trial, that defendant owed plaintiff no responsibility, after his accurate diagnosis, is insufficient to mandate summary judgment in favor of defendant. We agree with Special Term that there are too many serious issues of fact here, to dispose of this action without a trial.

ASCH, Justice (dissenting):

I dissent and would reverse the order of Special Term, sever the action brought against defendant physician, Jesse D. Stark, and enter a judgment of dismissal in his favor. In this case, Dr. Jesse D. Stark has made a convincing showing that he correctly read two barium enema X-rays and accurately diagnosed and reported a cecal neoplasm. Dr. Stark's correct readings are conceded by plaintiff's counsel and were in fact relied upon by plaintiff and accepted by Special Term. Plaintiff's case against defendant Stark is based solely on the speculative and unsubstantiated conclusions of her attorney. A balance must be struck, by the law, between holding professional people responsible for their malpractice and permitting those who have performed their tasks in a satisfactory manner to be insulated from the expense and personal burden of having to defend lawsuits which have no foundation. It is not always easy to demarcate the line between the two categories, but in this case it is. Obviously, if we freely permit plaintiffs asserting malpractice claims to use a vacuum cleaner to suck in each and every physician, no matter how tangential his relationship to the patient, as a defendant, even where the facts clearly demonstrate adequate medical conduct, in time, we won't have any physicians at all to treat the ill. This action was commenced by plaintiff, Maria Alvarez, for medical malpractice against Prospect Hospital and nine physicians for failure to make a timely diagnosis of carcinoma of plaintiff...