Pianin v. Altorki

• Docket Number: Index No. 805412/2019,Motion Seq. No. 004
• Decision Date: 05 April 2022
• Citation: 2022 NY Slip Op 31590 (U)
• Parties: DEBORAH PIANIN and SCOTT PIANIN, Plaintiffs, v. NASSER K. ALTORKI, M.D., DAVID POSNER M.D., JOHN DOE, M.D. (as yet unidentified radiologist), NORTHWELL HEALTH (LENOX HILL HOSPITAL), NORTHWELL HEALTH/NORTHWELL HEALTH PHYSICIAN PARTNERS, NEW YORK PRESBYTERIAN HOSPITAL/WEILL CORNELL MEDICAL CENTER and EAST RIVER IMAGING, Defendants.
• Court: New York Supreme Court

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2022 NY Slip Op 31590(U)

DEBORAH PIANIN and SCOTT PIANIN, Plaintiffs, v. NASSER K. ALTORKI, M.D., DAVID POSNER M.D., JOHN DOE, M.D. (as yet unidentified radiologist), NORTHWELL HEALTH (LENOX HILL HOSPITAL), NORTHWELL HEALTH/NORTHWELL HEALTH PHYSICIAN PARTNERS, NEW YORK PRESBYTERIAN HOSPITAL/WEILL CORNELL MEDICAL CENTER and EAST RIVER IMAGING, Defendants.

Index No. 805412/2019, Motion Seq. No. 004

Supreme Court, New York County

April 5, 2022

Unpublished Opinion

MOTION DATE 03/14/2022

DECISION + ORDER ON MOTION

JOHN J. KELLEY, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99 100, 101, 116, 117, 121, 122, 123, 124, 125, 126, 127, 128 129, 130, 134, 135, 136, 137, 146, 150, 151, 152, 153, 154 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179 were read on this motion to/for DISMISS .

In this action to recover damages for medical malpractice, the defendants Nasser K. Altorki, M.D., and New York Presbyterian Hospital-Weil Cornell Medical Center (together the NYPH defendants) move pursuant to CPLR 3212 for summary judgment dismissing the amended complaint insofar as asserted against them, on the ground that the action against them is time-barred. The plaintiffs oppose the motion. The defendants David Posner, Northwell Health/Northwell Health Physician Partners (NHPP), and East River Imaging (ERI) also oppose the motion. The motion is granted.

On September 24, 2001, the plaintiff Deborah Pianin (hereinafter the patient), who was then under the care of Posner at NHPP at Lenox Hill Hospital, underwent a computed tomography (CT) scan of her chest to rule out a pulmonary embolism after experiencing left-sided pleuritic chest pain. The CT scan revealed a 9 mm ill-defined opacity in the anterior apical segment of the right upper lobe (RUL). Between 2001 and 2011, the patient underwent regular CT scans of the chest to monitor the opacity for any significant changes. On January 11, 2011, another CT scan of the patient's chest revealed the existence of

"[i]ll-defined parenchymal opacity in the anterior segment of the right upper lobe abutting the anterior lateral pleural surface.

"The exam is compared to previous exams of December 11, 2008 and October 1, 2004. There has been slight progression in size over the time interval and area of aeration seen on the previous studies now have become more opacified. Given these changes further evaluation is recommended to exclude an underlying low-grade malignancy."

Based on those results, Posner referred the patient to Altorki, a cardiothoracic surgeon at NYPH. On January 18, 2011, the patient met with Altorki at NYPH for an initial consultation. On February 10, 2011, Altorki performed a video-assisted right upper lung thoracoscopy and wedge resection. The pathology report revealed lung tissue with fibrous pleural plaque and subpleural scarring, but otherwise found no tumor or granuloma present. On March 1, 2011, the patient saw Altorki for a post-operative follow up, in which she made no lung related complaints, after which Altorki noted that "she will follow with Dr. Posner."

Between 2011 and 2019, the patient continued to undergo routine radiological imaging tests conducted by Posner or NHPP at Lenox Hill Hospital to monitor any changes in her condition. On April 2, 2019, a CT scan of her chest found

"[a]n irregular/nodular opacity is again seen in the posterior right upper lobe adjacent to the major fissure. This again demonstrates internal lucencies. This has increased in size over serial examinations. It currently measures 16 x 10 mm (image 65 series 4; previously 14 x 8 mm on 04/04/2018 and 10 x 8 mm on 04/19/2017. This was FDG avid on the PET-CT of 04/26/2017. The possibility of a malignant neoplastic lesion is considered.

"There are spiculated nodular opacities in the superior segment of the right lower lobe measuring 7 mm (image 110) and 4-5 mm (image 122). These are visible in retrospect on 04/04/2018 and have enlarged having measured 4 mm and 2-3 mm respectively. The larger nodule is faintly visible in retrospect on 04/19/2017 having measured 2 mm. These are indeterminate. Developing neoplastic lesions are not excluded."

On April 9, 2019, Posner recommended that the patient have a biopsy. On May 9, 2019, Dr. Sandor Kovacs of Lenox Hill Hospital performed a CT-guided fine needle aspiration and core biopsy of the RUL lesion, which came back positive for malignant cells consistent with adenocarcinoma. On May 13, 2019, the patient followed up with Posner to discuss her biopsy results, after which Posner against referred her to Altorki at NYPH. On May 15, 2019, the patient underwent a positron emission tomography (PET)-CT scan to assess for malignancy and metastasis throughout the body. The PET-CT scan revealed the following,

"Progressive FDG avid lesions in the right lung apex and right upper lobe have the appearance of malignant neoplastic lesions. Correlation with precise biopsy results is requested.

"No FDG avid lymphadenopathy within the thorax.

"A small focus of increased FDG uptake in the liver without anatomic correlate is indeterminate. Contrast-enhanced abdominal MRI is advised to assess for a metastasis. There is no other evidence of extrathoracic FDG avid disease."

On May 21, 2019, the patient met with Altorki, who examined her and ordered further radiological imaging. Altorki's report indicated a diagnosis of malignant neoplasm of the upper lobe bronchus. On June 3, 2019, the patient underwent a RUL lobectomy performed by cardiothoracic surgeon Dr. Richard Lazzaro at Lenox Hill Hospital. Thereafter, the patient received additional cancer treatment.

On December 12, 2019, the plaintiffs commenced this action against the NYPH defendants, alleging that they failed to diagnose her cancer in 2011. On January 7, 2020, NYPH served its answer and, on February 5, 2020, Altorki served his answer. The NYPH defendants both asserted, as their third affirmative defense, that the causes of action against them were barred by the applicable statute of limitations. On June 23, 2021, a preliminary conference was held. On June 30, 2021, the plaintiffs moved pursuant to CPLR 3211(b) to dismiss the NYPH defendants' third affirmative defense (SEQ 002). On September 15, 2021, the plaintiffs withdrew that motion. On September 23, 2021, the plaintiffs moved for leave to file and serve a supplemental summons and amended complaint adding, as party defendants, Posner, John Doe, M.D. (a yet unidentified radiologist), NHPP, and ERI, and to amend the caption accordingly (SEQ 003).

On September 24, 2021, the NYPH defendants made the instant motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them, with prejudice, for failure timely to commence the action within the applicable statute of limitations (SEQ 004). On November 1, 2021, while this motion was pending, this court granted the plaintiffs' motion for leave to serve and file an amended complaint to add the additional defendants. On November 8, 2021, the plaintiffs opposed the instant motion. On January 27, 2022, this court issued an interim order notifying the parties that, inasmuch as it was procedurally improper to move pursuant to CPLR 3211(a)(5) after an answer had been served, the court was treating the motion designated as Motion Sequence 004 as a summary judgment motion, and permitted the parties to make additional submissions pursuant to CPLR 3211(c). On February 23, 2022, and February 24, 2022, the non-moving defendants opposed this motion.

According to the plaintiffs' bills of particulars as to the NYPH defendants, the NYPH defendants negligently treated the patient "from on or about February 10, 2011 through on or about May 21, 2019." In particular, the plaintiffs alleged that the NYPH defendants failed to timely diagnose and treat cancer, failed to order appropriate and necessary diagnostic testing, failed to make necessary and appropriate referrals, failed to appreciate the significance of the patient's prior radiological film studies, including CT scans showing growth and worsening of the lung mass, and failed to consider ordering imaging studies with a higher accuracy and/or better sensitivity in revealing and/or suggesting lung cancer. The plaintiffs also alleged that the NYPH defendants negligently performed a thoracoscopy and lung wedge removal procedure, negligently removed an insufficient area and the wrong portion of the patient's right lung, thereby rendering diagnosis unreliable and erroneous, and deprived the patient of the benefits of early detection of her cancer.

It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 853 [1985] [citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions (see CPLR 3212). The facts must be viewed in the light most favorable to the non-moving party (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). In other words, "[i]n determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J.C. Duggan, Inc., 180 A.D.2d 579, 580 [1st Dept 1992]). Once the movant meets its burden, it is incumbent upon...