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Unger v. Stiber

Other Lower Courts

January 14, 2008

Phyllis Unger, as Administratrix of the Estate of BETTY HOLLANDER and JACK HOLLANDER, Individually, Plaintiff,
v.
Andrew Stiber, M.D., BALA R. SUBRAMANYAM, M.D., and DR. BALA R. SUBRAMANYAM RADIOLOGY, P.C., Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Eileen Bransten, J.

In this motion, Defendants Bala R. Subramanyam, M.D. ("Dr. Subramanyam") and Dr. Bala R. Subramanyam Radiology, P.C. ("the P.C.") move for summary judgment pursuant to CPLR 3212. Defendant Dr. Andrew Stiber ("Dr. Stiber") opposes their motion, and cross-moves for summary judgment in his favor. Plaintiffs Phyllis Unger, as Administratrix of the Estate of Betty Hollander ("Mrs. Hollander"), and Jack Hollander ("Mr. Hollander") (collectively, "the Plaintiffs") oppose both applications.

BACKGROUND

On February 1, 2001, then 75-year old Mrs. Hollander complained of vaginal staining to Dr. Stiber. See, Shatynski Aff in Opp at 6, 22. Dr. Stiber ordered a dilation and curettage of the uterus, which was performed at NYU Tish Hospital. The pathology report showed an endometrial polyp and tissue that was insufficient for diagnosis. Dr. Stiber reported that the lack of tissue was "reassuring." Id at 7, 25.

On July 18, 2002, Mrs. Hollander complained to Dr. Stiber of vaginal staining. He performed a pap smear, which revealed atypical glandular cells. See, Antico Aff at 4, 16. On August 12, 2002, he performed a cervical biopsy, which indicated a decrease in the membrane around the uterine cervical canal known as the exocervix. The test results were found to be otherwise benign. Id .

In order to find other, non-cancerous causes for the atypical glandular cells, Dr. Stiber referred Mrs. Hollander to the P.C. for a pelvic sonogram. Id at 6, 17 Dr. Subramanyam, the P.C.'s sole shareholder, performed a transvaginal sonogram on Mrs. Hollander's pelvis and observed that her 3-millimeter-thick endometrium had no visible abnormalities. Id., 19. His impression was that she had a clarified fibroid uterus, which was benign, and sent the results to Dr. Stiber. Moreover, since the endometrium's thickness was normal, he did not find her vaginal bleeding "worrisome." See, Shatynski Aff in Opp, Ex F.

Mrs. Hollander continued to see Dr. Stiber for her post-menopausal bleeding. On July 21, 2003, Dr. Stiber referred Mrs. Hollander again to Dr. Subramanyam for a pelvic sonogram. Id . at 7, 21. Dr. Subramanyam conducted the test on July 29, 2003, and noted no changes other than that the endometrium decreased to 2-millimeters thick.

On October 16, 2003, Mrs. Hollander, then 82 years old, complained about vaginal bleeding to Dr. Stiber. He performed an endometrial biopsy, and diagnosed her with endometrial cancer in November 2003.

Ms. Hollander began radiation treatment under the care of Dr. Bhavana Pothuri at Columbia Medical Center. The cancer spread to both her lungs and brain. Id . Ex I. She subsequently began to experience seizures as her mental status deteriorated before she passed away on December 27, 2005. Id .

This medical malpractice action was commenced on September 14, 2004 prior to Mrs. Hollander's death. In the first cause of action, the Plaintiffs allege that Dr. Stiber, Dr. Subramanyam, and the P.C. departed from the ordinary care-standard in rendering medical treatment to Mrs. Hollander because they failed to diagnose the endometrial cancer earlier. In the second cause of action, Mr. Hollander alleges that he was deprived of Mrs. Hollander's consortium as a result of the Defendants' negligence and malpractice.

In this motion, Dr. Subramanyam and the P.C. argue that the treatment they rendered to Mrs. Hollander was within acceptable medical standards and summary judgment should be granted in their favor pursuant to CPLR 3212. Dr. Stiber argues in the cross-motion that there is no triable issue of fact that he acted within the boundaries of gynecological standards in treating Mrs. Hollander, and that issues of fact remain as to whether Dr. Subramanyam and the P.C. departed from ...


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