ANGELA M. SOLANO as the ADMINISTRATRIX of the goods, chattels and credits of JULIAN SOLANO, deceased; and BELGICA SOLANO Plaintiffs,
RONAK MEDICAL CARE and GIRISH PATEL, M.D., Defendants. Index No. 108905/06
ALICE SCHLESINGER, J.
This action involves the death of Julian Solano from cancer of the throat Mr. Solano was diagnosed with Stage II infiltrated squamous cell carcinoma on the right vocal cord in November 2004. He died on May 23, 2007, when the cancer which had been treated came back and spread. He had chemotherapy and radiation, but it was too late to save his life.
The action is brought against Dr. Girish Patel, who was his primary care physician from January 1, 2003 to June 23, 2005. The plaintiff, who is Mr. Solano's daughter and administratrix of his estate, claims that more than a year before the cancer was diagnosed she and her father had both complained of various symptoms and events which should have raised a red flag to Dr. Patel, an internist, and should have led much earlier to Dr. Patel's referral of Mr. Solano to an otolaryngologist.
Before the Court now is a motion for summary judgment, and it is accompanied by an affirmation by Charles L. Bardes, a board certified internist and a professor of Clinical Medicine at Weill Cornell Medical College. His opinion is based on his review of the medical records, examinations before trial, and relevant medical records in the case, as well as his on own experience. Dr. Bardes' opinion is that Dr. Patel's treatment from 2003 through 2005 was in accordance with accepted standards of medical practice and further that nothing that Dr. Patel did or failed to do caused or contributed to Mr. Solano's diagnosis of Stage II cancer and his death.
Dr. Bardes goes on to discuss what he believes Dr. Patel's records show. According to those records, Dr. Patel was first informed of plaintiff's complaints of hoarseness on November 19, 2003, when the patient went to the office to get a pre-op clearance for a laryngoscopy with a biopsy of the neck. On that date, Mr. Solano told Dr. Patel that he had been hoarse for about 6-8 weeks. Also, he reported that he had lost 11 pounds. The physical examination on that date revealed a red and swollen pharynx. Dr. Patel also diagnosed mild chronic obstructive pulmonary disease (COPD). However, the blood test and EKG were normal, and Mr. Solano was cleared for that surgery.
Dr. Bardes then discusses what was not told to Dr. Patel at that November 2003 appointment. Specifically, he notes that the decedent never made any complaints that would have caused Dr. Patel to suspect a throat cancer. Symptoms for this condition would be throat pain, ear pain, hoarseness and coughing up blood. Dr. Bardes says that if any of these symptoms had occurred and lasted longer than a month, then a referral should have been made to an otolaryngologist.
Dr. Bardes continues that Mr. Solano last saw Dr. Patel on August 2, 2004. He again opines that the location of the cancer as described by Dr. Sulica was not in a location that could be seen by an internist during a physical examination because internists generally do not have instruments with this kind of visualization.
Further, Dr. Bardes, on the issue of causation, opines that a diagnosis of Stage II laryngeal cancer in November 2004 would have taken no different course than it did if it had been diagnosed a few months earlier in August 2004.
Finally, with regard to the claim that Dr. Patel failed to test Mr. Solano, Dr. Bardes says that the defendant did in fact offer to do blood tests on November 19, 2003, January 29, 2004 and August 2, 2004, but Mr. Solano refused.
Based on the affirmation from Dr. Bardes, a well-credentialed board certified internist, I find that the moving defendant has made out a prima facie case. Therefore, the burden shifts to the plaintiff to see if their submission convinces the Court that there are legitimate factual issues that need to be determined at a trial.
Counsel for the plaintiff attempts to do this by first pointing to the deposition testimony of the plaintiff Angela Solano. Specifically on page 43 of that examination, Ms. Solano stated that she accompanied her father to a September 2003 visit. She says that at that visit, her father complained that his throat was still hurting, as was his right ear. His voice was scratchy and hoarse. She states that she told J5r. Patel that her father's voice had deteriorated and that he had lost a great deal of weight.
Further on page 47 of her deposition, Ms. Solano states that things were getting very bad for her father. She states that his voice was almost not coming out. Also, he had pain in his throat and ear. She states again that she told Dr. Patel in November 2003 that her father's food intake was much less. Dr. Patel, however, said that everything was within normal limits. Ms. Solano also testified that she told Dr. Patel that her father was bleeding at night and that there were blood stains on his sheets either in 2004 or as far back as 2003. Further, she states that the decedent was bleeding from his mouth and everyday he would spit up blood.
Based on the above, counsel argues that this sworn deposition testimony alone shows that Dr. Patel failed to properly heed and document plaintiff's complaints and render appropriate care. However, he does not stop there. He also submits an affirmation from a Dr. Lulu Jimma. She says that she is a primary care physician in New Jersey. Unfortunately, she does not say too much more about her credentials. Also, as pointed out in the reply, since Dr. Jimma practices in New Jersey and says nothing about being licensed in New York, she is required by CPLR ...