Kingsley v. Price

• Court: New York Supreme Court — Appellate Division
• Citation: Kingsley v. Price, 163 A.D.3d 157, 80 N.Y.S.3d 806 (N.Y. App. Div. 2018)
• Decision Date: 06 July 2018
• Docket Number: 587,CA 17–02014
• Parties: Susan M. KINGSLEY, Individually and as the Administratrix of the Estate of James D. Kingsley, Deceased, Plaintiff–Respondent, v. Thomas Edward PRICE, M.D., Western New York Occupational Medicine, P.C., Michael Anthony Torres, M.D., also known as Michael A. Torres, M.D., MBA, P.C., Eastern Niagara Radiology and Nuclear Medicine Associates, P.C., Aurea Sismea Sushila Desouza, M.D., Lockport Memorial Hospital, Eastern Niagara Hospital, Defendants–Appellants, and New York State Electric and Gas Corp., Defendant–Respondent. New York State Electric and Gas Corp., Third–Party Plaintiff, v. Onsite Occupational Health Services, Inc., Third–Party Defendant.

163 A.D.3d 157

80 N.Y.S.3d 806

Susan M. KINGSLEY, Individually and as the Administratrix of the Estate of James D. Kingsley, Deceased, Plaintiff–Respondent,

v.Thomas Edward PRICE, M.D., Western New York Occupational Medicine, P.C., Michael Anthony Torres, M.D., also known as Michael A. Torres, M.D., MBA, P.C., Eastern Niagara Radiology and Nuclear Medicine Associates, P.C., Aurea Sismea Sushila Desouza, M.D., Lockport Memorial Hospital, Eastern Niagara Hospital, Defendants–Appellants,andNew York State Electric and Gas Corp., Defendant–Respondent.

New York State Electric and Gas Corp., Third–Party Plaintiff,

v.Onsite Occupational Health Services, Inc., Third–Party Defendant.

587

CA 17–02014

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

Entered: July 6, 2018

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (SETH HISER OF COUNSEL), FOR DEFENDANTS–APPELLANTS.

DEMARIE & SCHOENBORN, P.C., BUFFALO (JOSEPH DEMARIE OF COUNSEL, Buffalo), FOR PLAINTIFF–RESPONDENT.

NIXON PEABODY LLP, ROCHESTER (KEVIN T. SAUNDERS OF COUNSEL, Rochester), FOR DEFENDANT–RESPONDENT.

PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND WINSLOW, JJ.

OPINION AND ORDER

It is hereby ORDERED that the order so appealed from is reversed on the law without costs, the motion is granted, and the second amended complaint and cross claims against defendants-appellants are dismissed.

Opinion by DeJoseph, J:

BACKGROUND

Thomas Edward Price, M.D., Western New York Occupational Medicine, P.C. (WNYOM), Michael Anthony Torres, M.D., also known as Michael A. Torres, M.D., MBA, P.C., Eastern Niagara Radiology and Nuclear Medicine Associates, P.C., Aurea Sismea Sushila DeSouza, M.D., Lockport Memorial Hospital, and Eastern Niagara Hospital (defendants) appeal from an order that denied their motion for summary judgment dismissing the second amended complaint and any cross claims against them.

This case arises from the failure of defendants and defendant New York State Electric and Gas Corp. (N.Y.SEG) to inform decedent James D. Kingsley that a chest × ray indicated that he might have lung cancer. Decedent was employed by NYSEG as a class 1 gas fitter. As part of an OSHA–mandated protocol associated with decedent's work activities, he was required to go through periodic medical examinations to determine whether he had an occupation-induced disease. On April 29, 2008, NYSEG sent decedent to WNYOM for an examination and "B–Read" chest x ray, which is an × ray specifically geared to look for issues related to asbestos exposure. The chest × ray was performed at defendant Lockport Memorial Hospital and decedent signed a consent form prior to the procedure. The consent form provided, in pertinent part, the following:

"I, [decedent], understand that medical examinations done at this facility are for evaluation purposes for either employment suitability or worker's compensation injury/illness treatment. The examinations done here are not intended to detect all underlying health conditions and do not replace the medical care provided by my personal physician. I hereby consent to the examination for the stated purposes or request the services stipulated of [WNYOM].

Furthermore, I understand that all medical information related to my ability to perform the functions of my job will be reported to the designated employer representatives at my place of employment."

DeSouza, a radiologist, read the file and issued a report, noting: "R[ight] infrahilar, 4x3 centimeter density. Needs CT," meaning that there was an abnormal mass in decedent's lung and, to further define it, a CAT scan was recommended. The × ray report was sent to an associate analyst for Rochester Gas and Electric Company, a sister company of NYSEG, on May 5, 2008 and, after it was determined that the condition was not work related, NYSEG did not advise decedent of the findings. Decedent eventually reached out to NYSEG for information about the × ray and was made aware of the condition, but by that time the cancer was insurmountable and, on May 5, 2012, decedent died of metastatic lung cancer.

Prior to his death, decedent and his wife, plaintiff Susan M. Kingsley, commenced this action against defendants and NYSEG and asserted causes of action for medical malpractice and/or negligence, loss of consortium, and wrongful death¹ based on allegations that defendants failed to inform decedent of the results of the chest x ray. Defendants and NYSEG answered, and NYSEG asserted a cross claim against defendants for common-law contribution and indemnification. Plaintiff's bill of particulars to defendants alleged, inter alia, that defendants failed to notify decedent and/or his primary care physician about the × ray results.

Defendants moved for summary judgment dismissing the second amended complaint and any cross claims against them or, in the alternative, to dismiss any cause of action for medical malpractice against them. Supreme Court denied the motion and defendants appeal.

DISCUSSION

At the outset, we conclude that, as set forth in the pleadings and amplified by the bill of particulars, plaintiff's first cause of action sounds in ordinary negligence, not medical malpractice. The first cause of action is predicated solely on defendants' failure to transmit information about the mass discovered on decedent's chest x ray to decedent or his primary care physician. "The failure to communicate significant medical findings to a patient or his treating physician is not malpractice but ordinary negligence" ( Yaniv v. Taub, 256 A.D.2d 273, 274, 683 N.Y.S.2d 35 [1st Dept. 1998] ; see Mancuso v. Kaleida Health, 100 A.D.3d 1468, 1468–1469, 954 N.Y.S.2d 313 [4th Dept. 2012] ). Moreover, "liability for medical malpractice may not be imposed absent a physician-patient relationship, either express or implied, because ‘there is no legal duty in the absence of such a relationship’ " ( Cygan v. Kaleida Health, 51 A.D.3d 1373, 1375, 857 N.Y.S.2d 869 [4th Dept. 2008] ; see Gedon v. Bry–Lin Hosps., 286 A.D.2d 892, 893–894, 730 N.Y.S.2d 641 [4th Dept. 2001], lv denied 98 N.Y.2d 601, 744 N.Y.S.2d 761, 771 N.E.2d 834 [2002] ). Here, Price and Torres were not involved in any physical examination of decedent or in taking or reviewing his × ray, and there are no allegations that DeSouza incorrectly read decedent's × ray or that decedent was injured when the × ray was taken. Thus, the first cause of action is not for medical malpractice, but for ordinary negligence.

In view of the foregoing, the issue before us is whether defendants had a legal duty, in the context of ordinary negligence, to inform decedent or his physician of the mass in his lung that was detected with the × ray. "Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" ( Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). "In the absence of a duty, as a matter of law, there can be no liability" ( Pasternack v. Laboratory Corp. of Am. Holdings, 27 N.Y.3d 817, 825, 37 N.Y.S.3d 750, 59 N.E.3d 485 [2016], rearg. denied 28 N.Y.3d 956, 38 N.Y.S.3d 525, 60 N.E.3d 421 [2016] ; see Gonzalez v. Povoski, 149 A.D.3d 1472, 1473, 53 N.Y.S.3d 423 [4th Dept. 2017] ), and "the existence and scope of a duty is a question of law requiring courts to balance sometimes competing public policy considerations" ( Espinal, 98 N.Y.2d at 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 ). "To discern whether a duty exists, the court must not engage in a simple weighing of equities, for a legal duty does not arise ‘when[ever] symmetry and sympathy would so seem to be best served’ " ( Matter of New York City Asbestos Litig., 27 N.Y.3d 765, 787–788, 37 N.Y.S.3d 723, 59 N.E.3d 458 [2016], quoting De Angelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406 [1983] ). Along with "logic and science, ... policy [considerations] play an important role" in determining the bounds of duty ( De Angelis, 58 N.Y.2d at 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406 ). "[I]n determining whether a duty exists, courts must be mindful of the precedential, and consequential, future effects of their rulings, and limit the legal consequences of wrongs to a controllable degree" ( Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 [2001] [internal quotation marks omitted] ).

The Court of Appeals has balanced a number of factors in analyzing questions of duty, "including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability" ( Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 586, 611 N.Y.S.2d 817, 634 N.E.2d 189 [1994] ; see New York City Asbestos Litig., 27 N.Y.3d at 788, 37 N.Y.S.3d 723, 59 N.E.3d 458 ; Gilson v. Metropolitan Opera, 5 N.Y.3d 574, 576–577, 807 N.Y.S.2d 588, 841 N.E.2d 747 [2005] ). Moreover, "[f]oreseeability, alone, does not define duty-it merely determines the scope of the duty once it is determined to exist" ( Hamilton, 96 N.Y.2d at 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 ).

NYSEG and plaintiff rely on Davis v. South Nassau Communities Hosp. , 26 N.Y.3d 563, 26 N.Y.S.3d 231, 46 N.E.3d 614 (2015) and Landon v. Kroll Lab. Specialists, Inc. , 22 N.Y.3d 1, 977 N.Y.S.2d 676, 999 N.E.2d 1121 (2013), rearg. denied 22 N.Y.3d 1084, 981 N.Y.S.2d 667, 4 N.E.3d 968 (2014) —as did the court—in asserting that defendants had a duty to convey the × ray results to decedent and/or his personal physician, while defendants contend that those cases are inapposite. We agree with defendants that neither Davis nor Landon requires finding a duty under these circumstances.

In Davis, a patient was intravenously treated by the defendants with an opioid narcotic pain killer and a benzodiazepine drug, and...