Mann v. Okere

• Decision Date: 23 June 2021
• Docket Number: Index No. 65167/12,2017–11130
• Parties: Kandace K. MANN, etc., respondent, v. Henry OKERE, et al., defendants, Kenneth Blumberg, et al., appellants.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 910
150 N.Y.S.3d 306

Kandace K. MANN, etc., respondent,
v.
Henry OKERE, et al., defendants,

Kenneth Blumberg, et al., appellants.

2017–11130
Index No. 65167/12

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

Argued—January 7, 2020
June 23, 2021

150 N.Y.S.3d 307

Catania, Mahon, Milligram & Rider, PLLC, Newburgh, N.Y. (Jeffrey S. Sculley of counsel), for appellants.

Meagher & Meagher, P.C., White Plains, N.Y. (Merryl F. Weiner of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the defendants Kenneth Blumberg and Hudson Valley Radiology Associates, PLLC, appeal from an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated September 15, 2017. The order, insofar as appealed from, denied those defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants Kenneth Blumberg and Hudson Valley Radiology Associates, PLLC, for summary judgment dismissing the complaint insofar as asserted against them is granted.

On April 20, 2010, the plaintiff's decedent, Lynell Green (hereinafter the decedent), obtained a prescription for a mammogram from the defendant physician Henry Okere. According to Okere, the decedent most likely called and asked for the prescription, which was then faxed to the defendant Hudson Valley Radiology Associates, PLLC (hereinafter Hudson Valley), the same day. The prescription

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itself did not specify whether it was for screening or diagnostic purposes, and did not indicate that the decedent had reported any particular complaint.

The following day, April 21, 2010, the decedent presented at nonparty Mid Rockland Imaging (hereinafter MRI) to undergo the mammogram. Upon her arrival, the decedent allegedly told an MRI employee that she felt a lump in her breast, but the employee told the decedent that her doctor had scheduled her for a routine mammogram. The mammography worksheet signed by the decedent indicated that the reason for the mammogram was "routine," but also noted that the decedent experienced pain and/or soreness in the left breast. The worksheet made no mention of any lump in the decedent's breast.

The defendant Kenneth Blumberg, a radiologist employed by Hudson Valley, read and interpreted the decedent's April 21, 2010 mammogram. In his report, Blumberg noted the purpose of the exam as screening, and he further explained, at his deposition, that he understood from the prescription and the mammography worksheet that the mammogram was a routine procedure. The report stated that there were no suspicious mammographic findings and recommended another routine screening in one year. Blumberg never spoke with the decedent, and never spoke with Okere concerning the decedent.

In May 2011, the decedent was diagnosed with cancer in her left breast. She died on August 20, 2014. Prior to her death, the decedent commenced this action against Blumberg and Hudson Valley (hereinafter together the radiology defendants), among others. In 2015, the plaintiff, Kandace K. Mann, the administratrix of the decedent's estate, filed an amended verified complaint reflecting the decedent's death and asserting an additional cause of action to recover damages for wrongful death. As amplified by the bill of particulars, the plaintiff alleged that the radiology defendants were negligent by, inter alia, ignoring the decedent's complaints of breast pain and of feeling a lump in her breast.

After the completion of discovery, the radiology defendants moved for summary judgment dismissing the complaint insofar as asserted against them, and submitted, among other things, the affirmation of their expert, Shari Siegel–Goldman, a radiologist. The plaintiff opposed the motion and submitted, inter alia, the affidavits of a name-redacted gynecologist, a name-redacted oncologist, and a name-redacted breast surgeon. By order dated September 15, 2017, the Supreme Court, among other things, denied the radiology defendants’ motion. The radiology defendants appeal.

" ‘In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries’ " ( Hutchinson v. New York City Health & Hosps. Corp., 172 A.D.3d 1037, 1039, 101 N.Y.S.3d 96, quoting Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ). "Thus, in moving for summary judgment, a physician defendant must establish, prima facie, ‘either that there was no departure or that any departure was not a proximate cause of the plaintiff's injuries’ " ( Hutchinson v. New York City Health & Hosps. Corp., 172 A.D.3d at 1039, 101 N.Y.S.3d 96, quoting Lesniak v. Stockholm Obstetrics & Gynecological Servs., P.C., 132 A.D.3d 959, 960, 18 N.Y.S.3d 689 ). Once a defendant makes this prima facie showing, "the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant

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met the prima facie burden" ( Donnelly v. Parikh, 150 A.D.3d 820, 822, 55 N.Y.S.3d 274 [ellipses and internal quotation marks omitted]; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Hutchinson v. New York City Health & Hosps. Corp., 172 A.D.3d at 1039, 101 N.Y.S.3d 96 ).

"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" ( Donnelly v. Parikh, 150 A.D.3d at 822, 55 N.Y.S.3d 274 [internal quotation marks omitted]; see Meade v. Yland, 140 A.D.3d 931, 933, 33 N.Y.S.3d 444 ). "The question of whether a physician owes a duty to the plaintiff is a question for the court, and is not an appropriate subject for expert opinion" ( Donnelly v. Parikh, 150 A.D.3d at 822, 55 N.Y.S.3d 274 [brackets and internal quotation marks omitted]; see Burtman v. Brown, 97 A.D.3d 156, 161, 945 N.Y.S.2d 673 ).

Here, the radiology defendants established, prima facie, that Blumberg discharged his duty to the decedent in accordance with accepted practice for radiologists (see Meade v. Yland, 140 A.D.3d at 933, 33 N.Y.S.3d 444 ). Siegel–Goldman, the radiology defendants’ expert, concluded that Blumberg's interpretation of the April 21, 2010 mammogram was in conformity with accepted practices.

Contrary to the views expressed by our dissenting colleague, we do not find, under the circumstances of this case, that Blumberg assumed any duty of care toward the decedent beyond that of reading the mammography images and documenting his findings. The record evidence shows Okere requested that Hudson Valley perform a routine screening mammogram, and the mere fact that the decedent indicated on the mammography worksheet that she experienced some pain in her left breast did not impose a heightened duty of care on Blumberg, who never saw or treated the decedent, and whose only role was to interpret the mammography images and report his findings to the prescribing physician (compare Neyman v. Doshi Diagnostic Imaging Servs., P.C., 153 A.D.3d 538, 546, 59 N.Y.S.3d 456, Meade v. Yland, 140 A.D.3d at 933, 33 N.Y.S.3d 444, Covert v. Walker, 82 A.D.3d 825, 826, 918 N.Y.S.2d 208, and Mosezhnik v. Berenstein, 33 A.D.3d 895, 897, 823 N.Y.S.2d 459, with Romanelli v. Jones, 179 A.D.3d 851, 117 N.Y.S.3d 90 ).

While our dissenting colleague relies heavily on Romanelli v. Jones, 179 A.D.3d 851, 117 N.Y.S.3d 90, the facts of that case are quite unlike the circumstances presented here. The plaintiff's decedent in Romanelli, Gia McGinley, died as a result of a uterine rupture and hemorrhage sustained during an attempted vaginal birth after caesarean section at McGinley's home, assisted by a certified nurse midwife ( id. at 852, 117 N.Y.S.3d 90 ). The defendants in Romanelli included the midwife as well as the board-certified obstetrician and gynecologist to whom the midwife had referred McGinley to act as a "collaborating physician" pursuant to Education Law § 6951(1) ( Romanelli v. Jones, 179 A.D.3d at 855, 117 N.Y.S.3d 90 ). While the collaborating physician in Romanelli maintained that he provided no medical advice or consultation regarding McGinley's pregnancy and delivery and that his role was strictly limited to performing and interpreting ultrasounds, the evidence plainly showed otherwise. First, it is important to make clear that the collaborating physician met with McGinley on four separate occasions for testing and consultation ( id. ). Further, on the final visit, which was two days before McGinley

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died, the collaborating physician noted his suspicion that the fetus was macrosomic and specifically advised the midwife to " ‘proceed with caution’ " as a caesarean section may ultimately be required ( id. at 853, 117 N.Y.S.3d 90 ). Under the circumstances presented in Romanelli, this Court found that the collaborating...