Muniz v. Mount Sinai Hosp. of Queens

• Decision Date: 10 January 2012
• Citation: 2012 N.Y. Slip Op. 00192,937 N.Y.S.2d 244,91 A.D.3d 612
• Parties: Margarita MUNIZ, etc., et al., respondents, v. MOUNT SINAI HOSPITAL OF QUEENS, et al., appellants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00192
91 A.D.3d 612
937 N.Y.S.2d 244

Margarita MUNIZ, etc., et al., respondents,
v.
MOUNT SINAI HOSPITAL OF QUEENS, et al., appellants.

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

Jan. 10, 2012.

[937 N.Y.S.2d 245]

Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), for appellant Mount Sinai Hospital of Queens.

Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., Gina Bernardi Di Folco, and Patricia D'Alvia of counsel), for appellants Shishir Kumar Bose and Queens–Long Island Medical Group, P.C.

Argyropoulos & Bender, Astoria, N.Y. (Michael S. Bender and Susan E. Paulovich of counsel), for respondents.MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

[91 A.D.3d 613] In an action to recover damages for medical malpractice, wrongful death, and lack of informed consent, the defendants Shishir Kumar Bose and Queens–Long Island Medical Group, P.C., appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), entered June 11, 2009, as granted that branch of their motion which was for summary judgment dismissing, as time-barred, the first cause of action to recover damages for conscious pain and suffering based on medical malpractice insofar as asserted against them only to the extent that such cause of action is premised upon medical malpractice allegedly committed prior to March 2002, denied

[937 N.Y.S.2d 246]

that branch of their motion which was for summary judgment dismissing the first and third causes of action insofar as asserted against them on the merits, and, in effect, denied that branch of their motion which was for summary judgment dismissing the fourth cause of action to recover punitive damages insofar as asserted against them, and the defendant Mount Sinai Hospital of Queens separately appeals from so much of the same order as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of the defendants Shishir Kumar Bose and Queens–Long Island Medical Group, P.C., which was for summary judgment dismissing, as time-barred, the first cause of action to recover damages for conscious pain and suffering based on medical malpractice insofar as asserted against them only to the extent that such cause of action is premised upon medical malpractice allegedly committed prior to March 2002, and substituting therefor a provision granting that branch of the motion to the extent that such cause of action is premised upon medical malpractice allegedly committed prior to June 15, 2003, (2) by deleting the provision thereof, in effect, denying that branch of the motion of the defendants Shishir Kumar Bose and Queens–Long Island Medical Group, P.C., which was for summary judgment dismissing the fourth cause of action to recover punitive damages insofar as asserted against them, and substituting therefor a provision granting that branch of the motion, (3) by deleting the provision thereof denying those branches of the separate motion of the defendant Mount Sinai Hospital of Queens which were for summary judgment dismissing the first and third causes of action insofar as asserted against it, and substituting therefor a provision granting those branches of the motion, and (4) by deleting the provision thereof denying that branch of the separate motion of the defendant Mount Sinai Hospital of Queens which was for summary judgment dismissing the fourth cause [91 A.D.3d 614] of action to recover punitive damages insofar as asserted against it, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The defendant Shishir Kumar Bose, an internist practicing with the defendant Queens–Long Island Medical Group, P.C. (hereinafter QLIMG), treated the plaintiff's decedent, Margarita Muniz (hereinafter the decedent), from 1985 until her death in 2004.

On February 22, 2002, the decedent sought treatment from Bose for an infection. Bose referred her for a blood test and advised her to follow up with him if her symptoms persisted. The decedent returned to him on February 27, 2002, with the same complaints. The results were not back from the blood test during this follow-up visit since the decedent had only gone for the blood test that morning. The decedent returned to Bose on March 20, 2002, at his request since the blood test results showed that the decedent was slightly anemic and Bose wanted to further evaluate the cause of the anemia. On March 2, 2004, the decedent again sought treatment from Bose, at which time Bose, among other things, ordered additional blood tests.

Subsequently, on March 30, 2004, the decedent, then 53 years old, was brought to the emergency department at the defendant Mount Sinai Hospital of Queens (hereinafter MSHQ) for evaluation of sudden onset, post-menopausal vaginal bleeding. Among other things, a blood test was

[937 N.Y.S.2d 247]

taken and the decision was made to admit the decedent to MSHQ. The decedent remained hospitalized at MSHQ until she was discharged on April 9, 2004. Bose saw the decedent each day during her hospitalization at MSHQ except for one day. During her hospitalization, a pelvic sonogram revealed a mass in her lower abdomen, which was thought to be a possible leiomyosarcoma, or malignant tumor, for which a hysterectomy was performed. The surgery confirmed the presence of a leiomyosarcoma. The decedent was discharged from MSHQ on April 9, 2004.

Bose continued to treat the decedent from the...