Megally v. LaPorta

• Decision Date: 02 November 1998
• Parties: 1998 N.Y. Slip Op. 9530 Nabil MEGALLY, etc., Appellant, v. Alfredo LaPORTA, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 649

679 N.Y.S.2d 649

1998 N.Y. Slip Op. 9530

Nabil MEGALLY, etc., Appellant, v. Alfredo LaPORTA, etc., et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Nov. 2, 1998.

Phillips Nizer Benjamin Krim & Ballon, LLP, New York, N.Y. (William F. Reilly and Jeffrey L. Shore of counsel), for appellant.

Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Steven J. Ahmuty and Kathleen Daly of counsel), for respondent Alfredo LaPorta.

Mauro & Goldberg, Great Neck, N.Y. (Kenneth Mauro and Caryn Lilling of counsel), for respondent Nafees Khan Pervez.

Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., of counsel), for respondent Western Queens Community Hospital.

Before MILLER, J.P., SULLIVAN, FRIEDMANN and LUCIANO, JJ.

MILLER, Justice Presiding.

On this appeal we are asked to recognize, for the first time, the existence of a duty of care owed by physicians, not to a patient, but to a fellow physician who relied upon the diagnosis of his colleagues in the treatment of a patient. The precise issue to be determined is whether two pathologists and the hospital by which they are employed may be liable to a surgeon who allegedly performed an unnecessary mastectomy due to the pathologists' incorrect diagnosis of cancer. For the reasons that follow, we hold that the surgeon has no right of recovery as against the defendants.

The central facts underlying this appeal are as follows. In May 1995, Geraldine Barbarito (hereinafter the patient), consulted the plaintiff, Dr. Nabil Megally (hereinafter the surgeon), about a lump in her right breast. The surgeon referred the patient for a mammogram which reportedly revealed the presence of fibrocystic changes in her right breast.

On June 19, 1995, after the surgeon performed a biopsy of the patient's right breast, he informed her, in the operating room, that the tissue he had just removed appeared to be benign. He forwarded a specimen to the pathology lab of the defendant Western Queens Community Hospital (hereinafter the hospital). Later that day, the tissue specimen was examined by the defendant Dr. Alfredo LaPorta, at that time the director of the hospital's pathology lab, who concluded that the specimen was benign. However, the following day the specimen was again examined, this time by the defendant Dr. Nafees Khan Pervez, who determined that the specimen was malignant. Upon receipt of this report, the surgeon asked Dr. LaPorta to reexamine the specimen. Dr. LaPorta did so and reported to the surgeon that he was now of the opinion that the tissue was malignant. The surgeon then informed the patient of the pathologists' now unanimous conclusion of malignancy and that surgery involving the removal of her right breast was necessary.

On July 3, 1995, the patient obtained a second surgical opinion from Dr. Pantagiotis Manolas. Based upon the pathology reports of Drs. LaPorta and Pervez, Dr. Manolas, who did not obtain an independent pathology report, agreed that surgical intervention was necessary.

On July 10, 1995, the surgeon performed a modified radical right mastectomy. However, following the operation, further pathological studies were conducted which indicated that no malignancy had existed. On September 6, 1995, the medical director of the hospital advised the patient that she never had breast cancer.

On or about October 30, 1995, the patient and her husband commenced an action to recover damages for medical malpractice against, among others, the surgeon, the pathologists, and the hospital. They alleged, inter alia, that the surgeon should have reviewed the pathology reports given his own preliminary belief that the tissue sample taken from the patient's breast was not malignant and that he failed to consider the value of a second, independent pathology review.

The surgeon served an amended verified answer wherein he generally denied the allegations of malpractice and asserted several generic affirmative defenses. He did not assert any cross claims against his codefendants.

In addition to commencing the action to recover damages for medical malpractice, the patient and her husband reportedly commenced a media campaign to publicize the allegedly negligent medical care she received. While the instant record offers few details, it is alleged that the patient and her husband were interviewed in newspapers and on television and radio. The surgeon, claiming to have been damaged in his practice and his reputation by the negative publicity, commenced this action against the pathologists and the hospital in or about April 1996.

The surgeon's verified complaint sounds primarily in negligence and medical malpractice. The thrust of the complaint was that, by reason of the pathologists' misdiagnosis, upon which he justifiably relied, the surgeon was caused to perform unnecessary surgery upon the patient, that the pathologists owed a duty to the surgeon "to exercise the requisite high degree of care, skill, and diligence expected to be possessed and exercised by physicians specializing in pathology", and that the pathologists breached that duty by negligently evaluating the patient's tissue sample and informing the surgeon that the patient had a malignancy. The operation performed by the surgeon in reliance upon the pathologists' report and the patient's bringing of a malpractice action allegedly resulted in "widespread media publicity", adversely affecting the surgeon's reputation. The surgeon claimed that the damage to his reputation caused him to suffer substantial economic losses, including surgery cancellations, loss of patients, and a substantial diminution in referrals from other physicians. It also caused him to be investigated by the Department of Health, which in turn delayed his acceptance by several Health Maintenance Organizations, and to suffer tremendous embarrassment and humiliation as a result of the "media blitz". The complaint thus alleged the existence of a duty owed to the surgeon by the pathologists and the hospital, and that this duty was breached by the negligence of the defendants.

By separate motions, the pathologists and the hospital each moved for summary judgment dismissing the surgeon's complaint. The pathologists each acknowledged that they owed a duty of care with respect to the pathological services they rendered to the patient. They argued, however, that they owed no such duty of care to the referring surgeon. The hospital raised a similar argument in support of its motion. In the alternative, the defendants all argued that any trial of the surgeon's claims should be stayed pending the determination of the patient's underlying malpractice action.

In an order and annexed memorandum decision dated May 6, 1997, the Supreme Court granted the defendants' motions for summary judgment dismissing the complaint. Characterizing the surgeon's claims as sounding in negligent misrepresentation, the court held that the defendants did not owe a duty of care to the surgeon, a third person outside of the physician/patient relationship. The court further found that the surgeon's claimed economic injuries were not caused by the defendants, but were the result of the publicity sought by the patient and her husband. The court reasoned that the surgeon could not assert a negligence claim against the defendants in order to insulate himself from the patient's medical malpractice claim. From this order, and the judgment subsequently entered thereupon, the surgeon now appeals. We affirm.

The first step in determining whether the pathologists and the hospital owed the surgeon any relevant duty of care is to ascertain the theory upon which the surgeon seeks recovery. The surgeon's complaint most closely resembles one sounding in medical malpractice insofar as he charges that the pathologists and the hospital negligently misdiagnosed the patient as suffering from breast cancer (see, Flowers v. Southampton Hosp., 215 A.D.2d 723, 627 N.Y.S.2d 81; Maggio v. Werner, 213 A.D.2d 883, 623 N.Y.S.2d 424; Butler v. Corines, 199 A.D.2d 455, 608 N.Y.S.2d 105; Smith v. Cruz, 161 A.D.2d 938, 557 N.Y.S.2d 509; Schneider v. Memorial Hosp. for Cancer and Allied Diseases, 100 A.D.2d 583, 473 N.Y.S.2d 524). Indeed, where, as here, the claim of negligence is substantially related to medical treatment, the resulting cause of action sounds in medical malpractice (see, Petrillo v. Leather, 247 A.D.2d 368, 668 N.Y.S.2d 637; Chaff v. Parkway Hosp., 205 A.D.2d 571, 613 N.Y.S.2d 237; Berger v. State of New York, 171 A.D.2d 713, 567 N.Y.S.2d 275). However, it is generally recognized that liability for medical malpractice may not be imposed in the absence of a physician-patient relationship (see, Finnegan v. Devries, 235 A.D.2d 454, 652 N.Y.S.2d 625; Miller v. Sullivan, 214 A.D.2d 822, 625 N.Y.S.2d 102; Ellis v. Peter, 211 A.D.2d 353, 627 N.Y.S.2d 707; Heller v. Peekskill Community Hosp., 198 A.D.2d 265, 603 N.Y.S.2d 548; Violandi v. City of New York, 184 A.D.2d 364, 584 N.Y.S.2d 842; McKinney v. Bellevue Hosp., 183 A.D.2d 563, 584 N.Y.S.2d 538; Lee v. City of New York, 162 A.D.2d 34, 560 N.Y.S.2d 700; Murphy v. Blum, 160 A.D.2d 914, 554 N.Y.S.2d 640). Here, since there was no physician-patient relationship between the surgeon and the pathologists or the hospital, the surgeon may not recover on a theory of medical malpractice. The surgeon's reliance on Tenuto v. Lederle Labs. Div. of Am. Cyanamid Co., 90 N.Y.2d 606, 665 N.Y.S.2d 17, 687 N.E.2d 1300, is misplaced, as that case is easily distinguishable insofar as it recognized the duty of a physician to the parents of an infant patient, one of whom had contracted polio as a result of an inoculation administered to the child. The instant case presents no similar familial relationship and the surgeon is unable to cite any cases recognizing the existence of a duty under facts analogous to those at bar.

Having ruled out any recovery on a theory of medical malpractice, we...