This case is not published in a printed volume and its disposition appears in a table in the reporter.
Philip G. Minardo, J.
Upon the foregoing papers, the motion (No. 2218) by defendant Staten Island University Hospital (hereafter "SIUH") for summary judgment dismissing the complaint as against it is granted; the cross motions (No. 2263 and 2313) for like relief by defendants Kishore Agrawal M.D. and Seaview Radiology Associates, P.C. (hereafter "Seaview") and Lynne Voutsinas M.D., are denied.
This is an action sounding in medical malpractice. To the extent relevant, plaintiffs allege that an untimely and improper interpretation of radiographic studies by defendants Seaview and Dr. Voutsinas in April 2002 resulted in a failure to timely diagnose and treat plaintiff Jeanette Ngai (hereinafter "plaintiff") for breast cancer  for a period of two years. Plaintiffs further allege that once diagnosed, Dr. Agrawal's negligent treatment resulted in plaintiff undergoing a total mastectomy with the removal of an excessive number of lymph nodes, and that the latter has greatly enhanced her risk of developing lymphedema and secondary infections. With regard to defendant SIUH, plaintiffs assert that an unnamed hospital pathologist failed to properly mark a specimen following plaintiff's April 13, 2004 lumpectomy, proximately causing excessive tissue to be removed and resulting in plaintiff having to undergo a total mastectomy.
The motion by SIUH is granted.
It is well established under the doctrine of respondeat superior that a hospital may not be held liable for the medical malpractice of physicians who are neither its agents or employees (see Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79). Thus, it cannot be held liable for the malpractice of a private attending physician over whom it lacks the necessary element of control (see Kavanaugh v. Nussbaum, 71 N.Y.2d 535; Sledziewski v. Cioffi, 137 A.D.2d 186, 188). Here, the evidence establishes that Dr. Agrawal did not render treatment to plaintiff as either an employee or agent of SIUH, but as an independent treating physician who is responsible for his own negligence (see Steiner v. Brookdale Hosp. Med. Ctr., 241 A.D.2d 516 lv denied 91 N.Y.2d 801). The same IS clearly true of defendants Seaview and Dr. Voutsinas. Additionally, while plaintiff asserts that the negligence of a hospital pathologist caused her to undergo a complete mastectomy, this assertion is wholly unsupported by admissible evidence of a factual nexus between this alleged deficiency in the pathology report following her 2004 lumpectomy and Dr. Agrawal's treatment decisions and any resultant damage. Specifically, Dr. Agrawal testified that because DCIS is a multi-focal cancer "a scatter effect", the standard of care requires a re-excision of the entire rim of the tissue and that this is the manner in which he always performs a re-excision of a DCIS lumpectomy.
The remaining motions are denied.
It is axiomatic that the requisite elements of proof in a medical malpractice action are
(1) a deviation or departure from accepted practice, and (2) evidence that such a departure was a proximate cause of plaintiff's injury or damage (see Thompson v. Orner, 36 A.D.3d 791). Accordingly, on a motion for summary judgment dismissing the complaint against it, a medical defendant has the burden of demonstrating the absence of any departure from good and accepted medical practice, or that no injuries resulted there from (see Williams v. Sahay,
12 A.D.3d 366, 368). Once a prima facie case for dismissal has been established, however, the burden of proof shifts to plaintiff, who must submit competent medical evidence of defendant's omissions or departures, and that such failures were a competent producing cause of the injury (see Domaradzki v. Glen Cove OB/GYN Assoc., 242 A.D.2d 282). For either purpose, general or conclusory allegations will not suffice (see DiMitri v. Monsouri, 302 A.D.2d 420, 421).
In support of his motion for summary judgment, Dr. Agrawal has submitted the expert affidavit of Robert B. Caplan, M.D., a Board Certified surgeon, who opines that Dr. Agrawal's treatment of plaintiff's carcinoma in situ ("DCIS") was entirely appropriate, and that the total mastectomy which was ultimately performed was the proper treatment option in light of the results of the May 26, 2004 re-excision confirming that plaintiff had multi-focal "DCIS". In addition, Dr. Caplan notes that plaintiff recovered from the mastectomy with no "secondary symptoms, disabilities or complications that could be attributed to the axillary dissection or a departure alleged to have been committed by Dr. Agrawal" (see Dr. Agrawal's Exhibit "T").
In support of the further motion for summary judgment by defendants Seaview and Dr. Voutsinas, the expert affidavit of Paul Tarter, M.D., a Board Certified surgeon, has been submitted. Although Dr. Tarter does not confirm Dr. Voutsinas' original finding of "No mammographic evidence of malignancy", he does state that "even assuming arguendo that [plaintiff] had Stage 0 breast cancer in April 2002, which grew from April 2002 to April 2004, the plaintiffs cannot establish proximate cause to validate their claims of negligence as to Seaview... and Dr. Voutsinas because the course of treatment would not have changed even if the diagnosis was made in April 2002"( see Affidavit of Dr. Tarter annexed to Seaview's motion papers).
In opposition, plaintiff has annexed the redacted physician's affirmation of a Board Certified surgeon, who states that he /she has had extensive training in the diagnosis, care and treatment of patients with breast cancer, including ductal carcinoma in situ, and surgical oncology. This expert states that contrary to Dr. Voutsinas' finding in April 2002, the mammography film which he reviewed "clearly showed micro calcifications that were suspicious for cancer", and that these micro calcifications increased more than two and one-half times and became more diffuse during the two-year delay between the misinterpreted 2002 film and the 2004 mammography, thereby "depriving plaintiff of a substantial opportunity of avoiding a total mastectomy". At a minimum, this affirmation raises a question of fact as to whether the delay in treatment attributed to the radiology defendants was a proximate cause of plaintiff's injury (see McMahon v. Badia, 195 A.D.2d 445).
Additionally, plaintiff's expert asserts that Dr. Agrawal departed from generally accepted practice by removing the lumpectomy in two pieces rather than one, which precluded margin assessment and specimen orientation; by not properly marking the specimen; and by re-excising the whole lumpectomy area rather than just the area where cancer was found near the margin. This expert also states that these departures proximately caused plaintiff to undergo a total mastectomy. Finally, plaintiff's expert opines that as a ...