Neyman v. Doshi Diagnostic Imaging Servs., P.C.

• Decision Date: 02 August 2017
• Docket Number: 2015-03095, 2015-03416. Index No. 9176/09.
• Citation: 59 N.Y.S.3d 456,153 A.D.3d 538
• Parties: Michael NEYMAN, as administrator of the estate of Olena Neyman, deceased, and Michael Neyman, individually, appellant, v. DOSHI DIAGNOSTIC IMAGING SERVICES, P.C., et al., respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 538

59 N.Y.S.3d 456

Michael NEYMAN, as administrator of the estate of Olena Neyman, deceased, and Michael Neyman, individually, appellant,

v.DOSHI DIAGNOSTIC IMAGING SERVICES, P.C., et al., respondents, et al., defendant.

2015-03095, 2015-03416. Index No. 9176/09.

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

Aug. 2, 2017.

Wolf & Fuhrman, LLP, Bronx, NY (Carole R. Moskowitz of counsel), for appellant.

McAloon & Friedman, P.C., New York, NY (Gina Bernardi Di Folco of counsel), for respondent Doshi Diagnostic Imaging Services, P.C.

Amabile & Erman, P.C., Staten Island, NY (Irene P. Ziegler of counsel), for respondent Leonid Sorkin, M.D.

MARK C. DILLON, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and FRANCESCA E. CONNOLLY, JJ.

In a consolidated action to recover damages for medical malpractice, etc., the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Schmidt, J.), dated November 20, 2014, which granted the separate motions of the defendants Doshi Diagnostic Imaging Services, P.C., and Leonid Sorkin, M.D., for summary judgment dismissing the complaint insofar as asserted against each of them, and (2), as limited by his brief, from so much of a judgment of the same court dated February 3, 2015, as, upon the order, dismissed the complaint insofar as asserted against those defendants.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the complaint insofar as asserted against the defendant Leonid Sorkin, M.D.; as so modified, the judgment is affirmed insofar as appealed from, the motion of the defendant Leonid Sorkin, M.D., for summary judgment dismissing the complaint insofar as asserted against him is denied, the order dated November 20, 2014, is modified accordingly, and the complaint is reinstated against that defendant; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendant Leonid Sorkin, M.D., and one bill of costs is awarded to the defendant Doshi Diagnostic Imaging Services, P.C., payable by the plaintiff.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated upon the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a][1] ).

In August 2004, the decedent Olena Neyman (hereinafter Olena) gave birth to a son. The defendant Leonid Sorkin, M.D., was Olena's obstetrician/gynecologist during that pregnancy. Olena breastfed her son for 13 months, until September 2005. Approximately one month after she stopped breastfeeding her son, Olena noticed a discharge from her left nipple that was "yellowish green," and "resembled" pus. This discharge was intermittent; often, weeks would pass before she observed the discharge again. Olena waited about five months to see a doctor, thinking that the discharge was normal and related to her prior breastfeeding.

On March 10, 2006, Olena presented to Sorkin, complaining about the discharge. In contrast to Olena's description of the discharge as resembling pus and coming from her left nipple only, Sorkin noted in Olena's chart that she complained of bilateral "milky" nipple discharge. Sorkin performed a breast examination and determined that Olena's breasts were symmetrical, noting there were no discrete masses or nipple retraction. Sorkin was able to express a sample of discharge from Olena's left breast, but not her right breast. The left breast discharge was sent for cytological screening. Sorkin prescribed Dostinex, a drug that blocks the hormone that stimulates milk production, and Naprosyn for pain. Sorkin also referred Olena for a bilateral breast sonogram to determine whether "there was any abnormality in the breast tissue outside of just discharge." Sorkin testified that, based upon his differential diagnosis, he "wanted to rule out anything more ominous," including the presence of any cancerous lesions. Sorkin instructed Olena to follow up in two to three weeks, and made a note to himself in her chart to "consider breast surgeon consult," which he testified would have been his course of action if the sonogram or cytology test was suspicious.

On March 14, 2006, Olena underwent a bilateral breast sonogram, which Joseph Dorsten, a physician employed by the defendant Doshi Diagnostic Imaging Services, P.C. (hereinafter Doshi), interpreted as negative for the presence of discrete solid or cystic masses, but noted that the "diagnostic value of [a] sonogram may be limited for a solid mass, which is isoechoic with surrounding breast tissue." The cytology sample, which Sorkin sent to a nonparty lab for testing, was interpreted as "Benign. No evidence of malignancy identified."

On April 7, 2006, Olena returned to Sorkin's office and informed him that a home pregnancy test was positive. The pregnancy was confirmed by an in-office test. Sorkin did not perform a breast examination on that date. Olena continued to see Sorkin for prenatal care. At a routine office visit on April 27, 2006, Sorkin performed a breast examination that revealed no abnormalities.

On July 25, 2006, Olena presented with a palpable nodule in her left breast of one to two centimeters and complaints of bloody nipple discharge, prompting Sorkin to refer her to a breast surgeon, Leslie Strong. There was a notable delay in Olena seeing Strong, which was attributed to Olena's inability to obtain an appointment with Strong at an office location in Staten Island, where Olena lived.

On September 15, 2006, Olena presented to Strong, who examined her and was unable to palpate any nodules. Strong suspected fibrocystic disease, but wanted to rule out the presence of a tumor. At a follow-up visit on September 25, 2006, at which point Olena was 31 weeks into her pregnancy, Strong sent Olena for an emergency biopsy, which was positive for malignant cells indicative of "high grade carcinoma metastatic to the lymph nodes."

Also on September 25, 2006, Olena met with an oncologist, Maxim Kreditor, who determined in consultation with Sorkin that it would not be safe to deliver the baby until the pregnancy had reached 34 weeks and, therefore, it was not appropriate to begin chemotherapy at that time due to risks to the unborn child.

On October 6, 2006, Olena underwent both a mammogram and a sonogram which together revealed, inter alia, "asymmetric density on the superior left breast and innumerable suspicious diffuse clustered microcalcifications over a 12 x 12 cm area." On October 16, 2006, Olena underwent a mastectomy of the left breast. Subsequent testing revealed that the cancer had metastasized to other parts of Olena's body, including 5 of 23 lymph nodes. On October 25, 2006, Olena delivered her daughter by caesarian section. On October 30, 2006, a PET scan revealed a large destructive mass in Olena's right shoulder.

Olena's treatment consisted of, inter alia, near-weekly chemotherapy that continued over the next several years. On April 10, 2007, several months into chemotherapy, Olena underwent a PET/CT scan that is relevant to issues raised on appeal. According to the radiology report, the scan revealed that "[t]he previously noted increased hypermetabolic activity in the destructive lesion of the right scapula has resolved," that "[t]he previously noted discrete hypermetabolic foci throughout the skeleton have also resolved," and that "there is increased sclerosis in the majority of the bony metastases... consistent with healing bony metastasis." Further, the radiologist noted "no new hypermetabolic activity to suggest new site of malignancy."

Despite these improvements, Olena's condition subsequently worsened and, on June 15, 2010, Olena died as a result of the cancer.

On or about April 14, 2009, Olena, and her husband, the plaintiff Michael Neyman (hereinafter the plaintiff), suing derivatively, commenced this action against Sorkin sounding in medical malpractice, which was consolidated with their separate action against Doshi. Upon Olena's death, the plaintiff was substituted in her place in his capacity as administrator of her estate. At the conclusion of discovery, Sorkin and Doshi separately moved for summary judgment dismissing the complaint insofar as asserted against each of them.

Sorkin's motion for summary judgment was supported by, inter alia, the expert affirmation of Mark A. Fialk, a physician board-certified in internal medicine with a subcertification in hematology and medical oncology. Fialk opined, with a reasonable degree of medical certainty, that Sorkin properly evaluated Olena's complaint of nipple discharge on March 10, 2006, and that, given her age and complaints, a sonogram and cytology were appropriate tests that were within the accepted standards of practice. Fialk also opined that, based upon the negative sonogram and cytology, and resolution of the discharge, "there is no evidence that breast cancer was present as of March 2006." Despite Fialk's opinion that no cancer was present on March 10, 2006, he alternatively opined that, if in fact cancer was present on that date, it was both microscopic and had already metastasized outside of the breast. His opinion that the cancer, if present, would have already metastasized by that date was premised upon a theory of "synchronous metastasis," which was based upon the similar sizes of the cancerous mass removed from Olena's left breast and the metastatic lesion observed in Olena's right shoulder on the October 30, 2006, PET scan. Thus, with respect to proximate cause, Fialk opined: "[A]ny alleged delay in diagnosing this cancer was not the proximate cause of injury to this patient. If the cancer was present and diagnosed in March, 2006, it would have been the same stage as it was in September and the...