Burtman v. Brown

Decision Date05 June 2012
PartiesRuth L. BURTMAN, Plaintiff–Respondent, v. Robin R. BROWN, M.D., et al., Defendants, Elizabeth J. Beautyman, M.D., Defendant–Appellant.
CourtNew York Supreme Court — Appellate Division

97 A.D.3d 156
945 N.Y.S.2d 673
2012 N.Y. Slip Op. 04303

Ruth L. BURTMAN, Plaintiff–Respondent,
v.
Robin R. BROWN, M.D., et al., Defendants,
Elizabeth J. Beautyman, M.D., Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

June 5, 2012.


[945 N.Y.S.2d 674]


Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains (Edward J. Guardaro, Jr. and Patricia D'Alvia of counsel), for appellant.

Marie R. Hodukavich, Peekskill, for respondent.


PETER TOM, J.P., DAVID B. SAXE, JAMES M. CATTERSON, KARLA MOSKOWITZ, and SALLIE MANZANET–DANIELS, JJ.

CATTERSON, J.

[97 A.D.3d 157]In this medical malpractice action, we are asked to determine whether the plaintiff's primary care physician had any duty to supervise or override a course of treatment initiated by another physician actively treating the plaintiff. In this case, we find that the motion court erred in finding that the defendant, Elizabeth Beautyman, M.D., as primary care physician, had an independent duty to assess the plaintiff's condition and order [97 A.D.3d 158]diagnostic testing such as a biopsy. On the contrary, as set forth more fully below, case law supports the defendant's position that her status as the plaintiff's primary care physician is not dispositive as to whether a duty exists in this case. Moreover, where no duty is found to exist, the opinion of plaintiff's expert that the defendant deviated from the standard of accepted medical practice is irrelevant.

The following facts are undisputed: On August 4, 2005, the plaintiff, Dr. Ruth Burtman, a 43–year–old licensed psychologist, saw the defendant Dr. Beautyman, an internist and primary care physician for the first time. At the time of the plaintiff's first visit, she was three months pregnant and already under the care of defendant West Care Associates (hereinafter referred to as “West Care”), a rotating group obstetrical practice, which included the defendant doctors Robin Brown and Hope Langer. The plaintiff had been a patient at West Care since 1997. In 1999, she was treated by Dr. Brown and West Care for an underarm mass. At the time, Dr. Brown had ordered a tissue sample

[945 N.Y.S.2d 675]

and subsequently the mass was found to be a benign lipoma.

Prior to the plaintiff's first visit with the defendant, she had two prenatal visits at West Care. Dr. Brown examined her on both visits, on June 30, 2005 and July 28, 2005.

On August 4, 2005, at the plaintiff's first visit with the defendant, she requested a full checkup, and the defendant performed a physical examination. The plaintiff subsequently had another prenatal checkup with Dr. Brown at West Care on August 25, 2005.

On September 20, 2005, six weeks after her first visit with the defendant, and almost a month after her prior prenatal visit with Dr. Brown, Dr. Langer examined the plaintiff and noted the presence of a mass in the upper left quadrant of her abdomen. Dr. Brown requested a sonogram which was performed on October 12, 2005.

On October 13, 2005, a radiology report was faxed to the defendant who noted that the report referred to a mass consistent with a benign fibrolipoma. She did not discuss the report with the plaintiff, or any of the plaintiff's other doctors.

It is further undisputed that the West Care doctors as part of their care of the plaintiff decided to adopt a “wait and watch” approach. They did not attempt to remove the mass while the plaintiff was pregnant because there was “no concern” as to the mass.

[97 A.D.3d 159]The plaintiff had a second office visit with the defendant in January 2006 after she fell and sprained her ankle. She asked the defendant for a referral to a physical therapist. Subsequently, the plaintiff gave birth to a baby boy on February 12, 2006. She testified that by the time she gave birth, the mass had increased in size.

In June 2006, she returned to a different primary care physician whom she had previously seen in February 2005. This visit concerned a tick bite on her abdomen. It was not until the end of October 2006 when the plaintiff saw Dr. Robert Grant, a plastic surgeon, who made a diagnosis of subcutaneous masses. On December 8, 2006, Dr. Grant performed the excision of the two masses. The pathology report of December 19, 2006, showed that the 10cm left quadrant mass was an “atypical lipoma,” suggesting a malignancy. On January 6 2007, a surgical oncologist at Memorial Sloan Kettering, performed a “wide radical excision of th[e] area.”

The plaintiff commenced the instant medical malpractice action on or about January 13, 2008, against, inter alia, defendant Dr. Beautyman, the obstetricians at West Care, and West Side Radiology. With respect to Dr. Beautyman (hereinafter referred to as “the defendant”), the plaintiff alleged departures from good and accepted standards of practice. The plaintiff claims the defendant failed to properly examine, test, diagnose and treat her for a left upper-quadrant abdominal soft tissue mass; specifically, that the defendant failed to order a biopsy which would have revealed that her condition was a malignant liposarcoma. The plaintiff claims that as a result she was deprived of the option of less radical and invasive surgery.

Upon completion of discovery, virtually all the defendants moved for summary judgment. The court granted the summary judgment motion of the individual doctors in the obstetrical practice because the plaintiff failed to oppose their summary judgment motion. The court denied Dr. Beautyman's summary judgment motion.

In a decision entered November 22, 2010, the court found that questions of fact existed as to whether the defendant had

[945 N.Y.S.2d 676]

carried out a thorough abdominal examination on August 4, 2005. The court based its finding on the plaintiff's expert's statement that “at or about this time ... the plaintiff herself could feel these masses.” The court also found an issue of fact as to whether the defendant should have conducted an abdominal examination at [97 A.D.3d 160]plaintiff's second office visit in January 2006–three months after the sonogram report was faxed to her. The court held that “at the very least, [defendant] had an obligation to discuss that report with [plaintiff] ... and to discuss with her a differential diagnosis with a suggestion for a follow-up biopsy.” The court based its holding primarily on the defendant's status as the primary care physician. It relied on the opinion of the plaintiff's expert which stated that an abdominal mass was a “medical issue, rather than a gynecological” problem, and thus entirely within the scope of the defendant's duty as the primary medical physician.

This was error. The court's holding that an issue of fact exists as to the thoroughness of the defendant's examination of August 4, 2005 is based on an assumption that the abdominal mass was present and discernible at the time of the first visit in August 2005. This is an assumption of facts not in the evidence of record: At deposition, the plaintiff simply could not recall when and to whom she complained about the abdominal mass first—or even whether she showed it to the defendant. She testified that she showed the mass to “my doctor” identifying the doctor as Dr. Brown. She was asked: “Was Dr. Brown the first [to see the abdominal mass]?” The plaintiff answered: “I'm not sure.” As to the defendant, the plaintiff was asked: “Did you show [Dr. Beautyman the] lipoma?” Upon replying, yes, she was asked, “When?” The plaintiff replied, “I don't know.”

It is disingenuous of the plaintiff to assert, on appeal, that “[s]ince the January 11, 2006 examination was focused on the ankle, plaintiff must have showed the mass to Dr. Beautyman on August 4, 2005.” Indeed, this is nothing more than impermissible speculation which is clearly controverted by the deposition testimony of the defendant and the West Care group of doctors, as well as by the evidence of record which shows that the first reference to any abdominal mass appeared in the plaintiff's medical charts on September 20, 2005.

Dr. Brown testified there was no evidence of an abdominal mass during the plaintiff's visits on June 30, July 28 or even August 25. The defendant similarly testified that there was no evidence of any discernible masses at the visit on August 4th; and that the plaintiff did not come to her with a complaint, but solely for a general physical examination. There is no notation of any mass in the plaintiff's medical chart from that visit, nor any notation that the plaintiff complained about it. Neither are there any notations of an abdominal mass in the plaintiff's medical[97 A.D.3d 161]charts at West Care at this time. This establishes that the plaintiff neither complained nor presented with any discernible abdominal mass on her documented visits at West Care on June 30, or July 28, 2005 (approximately a week before her visit with the defendant), or even on August 25 (three weeks after the visit with the defendant) during an examination at West Care. Moreover, there is no expert affidavit in the record stating that an abdominal mass of the size noted on October 12 during the sonogram would have been discernible or palpable two months earlier at the plaintiff's first office visit with the defendant.

The motion court also erred in finding an issue of fact as to the thoroughness of the defendant's examination of the

[945 N.Y.S.2d 677]

plaintiff at the second office visit in January 2006. The court observed that the defendant as the primary care physician had a duty to examine plaintiff's abdomen at that visit, or “at the very least” to discuss the sonogram report and suggest a follow-up biopsy. The court, thus, imposed on the defendant the duty of overseeing a course of treatment commenced by another treating physician who specifically referred the plaintiff to a different specialist to follow up on her condition. Moreover the court did so without reference to any legal authority and erroneously relied instead on the opinion of the...

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