Pegalis & Erickson, LLC, Lake Success, NY (Robert V.
Fallarino and Linda M. Oliva of counsel), for appellant.
Ahmuty, Citrin & Spratt, LLP, Lake Success, NY
(Christopher Simone, Tiffany A. Miao, and Jonathan P. Shaub
of counsel), for respondents Long Island Medical Imaging,
P.C., Long Island Magnetic Resonance Imaging, P.C., and
Radler LLP, Uniondale, NY (Cheryl F. Korman and Merril
Biscone of counsel), for respondents John A. Saugy and
Suffolk Orthopaedic Associates, P.C.
C. DILLON, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, ROBERT J.
DECISION & ORDER
from an order of the Supreme Court, Suffolk County (Jeffrey
Arlen Spinner, J.), dated August 19, 2014. The order, insofar
as appealed from, granted the motion of the defendants John
A. Saugy and Suffolk Orthopaedic Associates, P.C., for
summary judgment dismissing the complaint insofar as asserted
against them and the separate motion of the defendants Albert
Zilkha, Long Island Medical Imaging, P.C., and Long Island
Magnetic Resonance Imaging, P.C., for summary judgment
dismissing the complaint insofar as asserted against the
defendant Albert Zilkha and so much of the complaint as
alleged that the defendants Long Island Medical Imaging,
P.C., and Long Island Magnetic Resonance Imaging, P.C., were
vicariously liable for the acts or omissions of the defendant
that the order is affirmed insofar as appealed from, with one
bill of costs payable to the respondents appearing separately
and filing separate briefs.
plaintiff commenced this action to recover damages for
medical malpractice and lack of informed consent against,
among others, the defendants Albert Zilkha and Joel D.
Reiter, who were radiologists employed by the defendants Long
Island Medical Imaging, P.C. (hereinafter Long Island
Medical), and Long Island Magnetic Resonance Imaging, P.C.
(hereinafter Long Island MRI), and the defendant John A.
Saugy, an orthopedic surgeon employed by the defendant
Suffolk Orthopaedic Associates, P.C. (hereinafter together
the Saugy defendants). The plaintiff alleged, inter alia,
that Zilkha negligently failed "to timely identify a
malignant process in the left lung of the plaintiff evidenced
by [an MRI] performed on or about August 7, 2007, " and
negligently failed "to note the presence of a mass in
the left lung." Moreover, the plaintiff alleged that
Saugy departed from accepted medical practice in, among other
things, misinterpreting X rays of her shoulder, "failing
to document any pathology in the lung, " "failing
to diagnose lung cancer, " and "negligently
diagnosing shoulder impingement syndrome" and
"rotator cuff pain."
order appealed from, the Supreme Court, inter alia, granted
the Saugy defendants' motion for summary judgment
dismissing the complaint insofar as asserted against them. In
addition, the court granted the separate motion of Zilkha,
Long Island Medical, and Long Island MRI for summary judgment
dismissing the complaint insofar as asserted against Zilkha
and so much of the complaint as alleged that Long Island
Medical and Long Island MRI were vicariously liable for
Zilkha's acts or omissions. We affirm the order insofar
as appealed from.
malpractice actions require proof that the defendant
physician deviated or departed from the accepted community
standards of practice, and that such deviation was a
proximate cause of the plaintiff's injuries"
(Bongiovanni v Cavagnuolo, 138 A.D.3d 12, 16;
see Trauring v Gendal, 121 A.D.3d 1097, 1097).
"When moving for summary judgment, a defendant doctor
has the burden of establishing the absence of any departure
from good and accepted medical practice or that the plaintiff
was not injured thereby'" (Trauring v
Gendal, 121 A.D.3d at 1097, quoting Rebozo v
Wilen, 41 A.D.3d 457, 458; see Meade v Yland,
140 A.D.3d 931, 932-933). " Once a defendant physician
has made such a showing, the burden shifts to the plaintiff
to demonstrate the existence of a triable issue of fact, ...
but only as to the elements on which the defendant met the
prima facie burden'" (Leigh v Kyle, 143
A.D.3d 779, 781, quoting Gillespie v New York Hosp.
Queens, 96 A.D.3d 901, 902; see Stukas v
Streiter, 83 A.D.3d 18, 24).
Although physicians owe a general duty of care to their
patients, that duty may be limited to those medical functions
undertaken by the physician and relied on by the
patient'" (Meade v Yland, 140 A.D.3d at
933, quoting Chulla v DiStefano, 242 A.D.2d 657,
658; see Burns v Goyal, 145 A.D.3d 952, 954).
"[T]he question of whether a physician owes a duty to
the plaintiff is a question for the court, and is not an
appropriate subject for expert opinion'" (Burns
v Goyal, 145 A.D.3d at 954, quoting Burtman v
Brown, 97 A.D.3d 156, 161).
the Saugy defendants submitted, inter alia, a detailed
affirmation of an expert orthopedic surgeon, who opined that
Saugy properly diagnosed the plaintiff with left rotator cuff
disorder, and that the plaintiff's symptoms, a physical
examination, and positive findings on X rays and an MRI of
the left shoulder were consistent with Saugy's impression
of shoulder impingement syndrome. In addition, the expert
opined, among other things, that Saugy, as an orthopedist,
appropriately obtained X rays of the plaintiff's left
shoulder that "were optimized for the bone" and did
not "show any evidence whatsoever of a lung tumor."
Accordingly, the Saugy defendants made a prima facie showing
that Saugy did not deviate from the accepted standard of care
in the field of orthopedic surgery in his evaluation and
treatment of the plaintiff's shoulder (see Leigh v
Kyle, 143 A.D.3d at 782; Shields v Kleiner, 93
A.D.3d 710, 712). Moreover, the Saugy defendants established,
prima facie, that Saugy's duty of care as an orthopedic
surgeon did not extend to the alleged departures in failing
to discover the plaintiff's lung cancer. Their
submissions demonstrated, inter alia, that the plaintiff
remained under the care of her primary care physician, who
had referred the plaintiff to Saugy after diagnosing a
rotator cuff tear, and that Saugy's role was limited to
evaluating and treating her orthopedic issues (see Chin v
Long Is. Coll. Hosp., 119 A.D.3d 833, 834; Zeldin v
Michaelis, 105 A.D.3d 641, 641-642; Dombroski v
Samaritan Hosp., 47 A.D.3d 80, 86; Yasin v Manhattan
Eye, Ear & Throat Hosp., 254 A.D.2d 281, 282).
opposition to the Saugy defendants' prima facie showing,
the plaintiff failed to raise a triable issue of fact as to
whether Saugy deviated from the standard of care in the field
of orthopedic surgery in his treatment of the plaintiff, or
whether Saugy assumed a duty of care beyond the evaluation
and treatment of the plaintiff's orthopedic issues.
Contrary to the Saugy defendants' contention, the
affirmation of the plaintiff's expert radiologist was not
deficient by reason of the redaction of the expert's
name, since the unredacted original was offered to the
Supreme Court for in camera inspection, as is required
(see Turi v Birk, 118 A.D.3d 979, 980; Cerny v
Williams, 32 A.D.3d 881, 886). However, where, as here,
" a physician opines outside his or her area of
specialization, a foundation must be laid tending to support
the reliability of the opinion rendered'"
(Shashi v South Nassau Communities Hosp., 104 A.D.3d
838, 839, quoting Bey v Neuman, 100 A.D.3d 581, 582;
see Bongiovanni v Cavagnuolo, 138 A.D.3d at 18;
Bjorke v Rubenstein, 53 A.D.3d 519, 520). The
plaintiff's expert, a board-certified radiologist, did
not indicate any familiarity with the standards of orthopedic
care. Moreover, the expert's opinion that Saugy assumed a
duty to discover the plaintiff's lung cancer was a bare
legal conclusion that is unsupported by the record and
insufficient to raise a triable issue of fact (see Burns
v Goyal, 145 A.D.3d at 954; Leigh v Kyle, 143
A.D.3d at 783; cf. Olgun v Cipolla, 82 A.D.3d 1186,
the Supreme Court properly granted the Saugy defendants'
motion for summary judgment dismissing the complaint insofar
as asserted against them.
to the contention of Zilkha, Long Island Medical, and Long
Island MRI (hereinafter collectively the Zilkha defendants),
they failed to demonstrate that Zilkha, as a radiologist, did
not owe a duty to the plaintiff to discover and note the mass
allegedly visible on the MRI films interpreted by him
(cf. Meade v Yland, 140 A.D.3d at 933; Covert v
Walker,82 A.D.3d 825, 826; Dockery v Sprecher,68 A.D.3d 1043, 1045-1046). However, the Zilkha
defendants' submissions, which included Zilkha's
deposition testimony, established, prima facie, that
Zilkha's interpretation of the MRI did not depart from
the radiologic standard of care (see DeGiorgio v
Racanelli,136 A.D.3d 734, 737; Garbowski v Hudson
Val. Hosp. Ctr.,85 A.D.3d 724, 726). The submissions
demonstrated, among other things, that the plaintiff's