The opinion of the court was delivered by: Catterson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
SUPREME COURT, APPELLATE DIVISIONFirst Judicial Department
Peter Tom,J.P. David B. Saxe James M. Catterson Karla Moskowitz Sallie Manzanet-Daniels, JJ.
Defendant Elizabeth J. Beautyman, M.D., appeals from the order of the Supreme Court, New York County (Alice Schlesinger, J.), entered November 22, 2010, which, insofar as appealed from, denied her motion for summary judgment dismissing the complaint as against her.
In this medical malpractice action, we are asked to determine whether the plaintiff's primary care physician had any duty to supervise or override a course of treatment initiated by another physician actively treating the plaintiff. In this case, we find that the motion court erred in finding that the defendant, Elizabeth Beautyman, M.D., as primary care physician, had an independent duty to assess the plaintiff's condition and order diagnostic testing such as a biopsy. On the contrary, as set forth more fully below, case law supports the defendant's position that her status as the plaintiff's primary care physician is not dispositive as to whether a duty exists in this case. Moreover, where no duty is found to exist, the opinion of plaintiff's expert that the defendant deviated from the standard of accepted medical practice is irrelevant.
The following facts are undisputed: On August 4, 2005, the plaintiff, Dr. Ruth Burtman, a 43-year-old licensed psychologist, saw the defendant Dr. Beautyman, an internist and primary care physician for the first time. At the time of the plaintiff's first visit, she was three months pregnant and already under the care of defendant West Care Associates (hereinafter referred to as "West Care"), a rotating group obstetrical practice, which included the defendant doctors Robin Brown and Hope Langer. The plaintiff had been a patient at West Care since 1997. In 1999, she was treated by Dr. Brown and West Care for an underarm mass. At the time, Dr. Brown had ordered a tissue sample and subsequently the mass was found to be a benign lipoma.
Prior to the plaintiff's first visit with the defendant, she had two prenatal visits at West Care. Dr. Brown examined her on both visits, on June 30, 2005 and July 28, 2005.
On August 4, 2005, at the plaintiff's first visit with the defendant, she requested a full checkup, and the defendant performed a physical examination. The plaintiff subsequently had another prenatal checkup with Dr. Brown at West Care on August 25, 2005.
On September 20, 2005, six weeks after her first visit with the defendant, and almost a month after her prior prenatal visit with Dr. Brown, Dr. Langer examined the plaintiff and noted the presence of a mass in the upper left quadrant of her abdomen. Dr. Brown requested a sonogram which was performed on October 12, 2005.
On October 13, 2005, a radiology report was faxed to the defendant who noted that the report referred to a mass consistent with a benign fibrolipoma. She did not discuss the report with the plaintiff, or any of the plaintiff's other doctors.
It is further undisputed that the West Care doctors as part of their care of the plaintiff decided to adopt a "wait and watch" approach. They did not attempt to remove the mass while the plaintiff was pregnant because there was "no concern" as to the mass.
The plaintiff had a second office visit with the defendant in January 2006 after she fell and sprained her ankle. She asked the defendant for a referral to a physical therapist. Subsequently, the plaintiff gave birth to a baby boy on February 12, 2006. She testified that by the time she gave birth, the mass had increased in size.
In June 2006, she returned to a different primary care physician whom she had previously seen in February 2005. This visit concerned a tick bite on her abdomen. It was not until the end of October 2006 when the plaintiff saw Dr. Robert Grant, a plastic surgeon, who made a diagnosis of subcutaneous masses. On December 8, 2006, Dr. Grant performed the excision of the two masses. The pathology report of December 19, 2006, showed that the 10cm left quadrant mass was an "atypical lipoma," suggesting a ...