Michael Neyman, as administrator of the estate of Olena Neyman, deceased, and Michael Neyman, individually, appellant,
Doshi Diagnostic Imaging Services, P.C., et al., respondents, et al., defendant. Index No. 9176/09
& Fuhrman, LLP, Bronx, NY (Carole R. Moskowitz of
counsel), for appellant.
McAloon & Friedman, P.C., New York, NY (Gina Bernardi Di
Folco of counsel), for respondent Doshi Diagnostic Imaging
Amabile & Erman, P.C., Staten Island, NY (Irene P.
Ziegler of counsel), for respondent Leonid Sorkin, M.D.
C. DILLON, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, FRANCESCA
E. CONNOLLY, JJ.
DECISION & ORDER
consolidated action to recover damages for medical
malpractice, etc., the plaintiff appeals (1) from an order of
the Supreme Court, Kings County (Schmidt, J.), dated November
20, 2014, which granted the separate motions of the
defendants Doshi Diagnostic Imaging Services, P.C., and
Leonid Sorkin, M.D., for summary judgment dismissing the
complaint insofar as asserted against each of them, and (2),
as limited by his brief, from so much of a judgment of the
same court dated February 3, 2015, as, upon the order,
dismissed the complaint insofar as asserted against those
that the appeal from the order is dismissed; and it is
further, ORDERED that the judgment is modified, on the law,
by deleting the provision thereof dismissing the complaint
insofar as asserted against the defendant Leonid Sorkin,
M.D.; as so modified, the judgment is affirmed insofar as
appealed from, the motion of the defendant Leonid Sorkin,
M.D., for summary judgment dismissing the complaint insofar
as asserted against him is denied, the order dated November
20, 2014, is modified accordingly, and the complaint is
reinstated against that defendant; and it is further, ORDERED
that one bill of costs is awarded to the plaintiff, payable
by the defendant Leonid Sorkin, M.D., and one bill of costs
is awarded to the defendant Doshi Diagnostic Imaging
Services, P.C., payable by the plaintiff.
appeal from the intermediate order must be dismissed because
the right of direct appeal therefrom terminated upon the
entry of the judgment in the action (see Matter of
Aho, 39 N.Y.2d 241, 248). The issues raised on the
appeal from the order are brought up for review and have been
considered on the appeal from the judgment (see CPLR
August 2004, the decedent Olena Neyman (hereinafter Olena)
gave birth to a son. The defendant Leonid Sorkin, M.D., was
Olena's obstetrician/gynecologist during that pregnancy.
Olena breastfed her son for 13 months, until September 2005.
Approximately one month after she stopped breastfeeding her
son, Olena noticed a discharge from her left nipple that was
"yellowish green, " and "resembled" pus.
This discharge was intermittent; often, weeks would pass
before she observed the discharge again. Olena waited about
five months to see a doctor, thinking that the discharge was
normal and related to her prior breastfeeding.
March 10, 2006, Olena presented to Sorkin, complaining about
the discharge. In contrast to Olena's description of the
discharge as resembling pus and coming from her left nipple
only, Sorkin noted in Olena's chart that she complained
of bilateral "milky" nipple discharge. Sorkin
performed a breast examination and determined that
Olena's breasts were symmetrical, noting there were no
discrete masses or nipple retraction. Sorkin was able to
express a sample of discharge from Olena's left breast,
but not her right breast. The left breast discharge was sent
for cytological screening. Sorkin prescribed Dostinex, a drug
that blocks the hormone that stimulates milk production, and
Naprosyn for pain. Sorkin also referred Olena for a bilateral
breast sonogram to determine whether "there was any
abnormality in the breast tissue outside of just
discharge." Sorkin testified that, based upon his
differential diagnosis, he "wanted to rule out anything
more ominous, " including the presence of any cancerous
lesions. Sorkin instructed Olena to follow up in two to three
weeks, and made a note to himself in her chart to
"consider breast surgeon consult, " which he
testified would have been his course of action if the
sonogram or cytology test was suspicious.
March 14, 2006, Olena underwent a bilateral breast sonogram,
which Joseph Dorsten, a physician employed by the defendant
Doshi Diagnostic Imaging Services, P.C. (hereinafter Doshi),
interpreted as negative for the presence of discrete solid or
cystic masses, but noted that the "diagnostic value of
[a] sonogram may be limited for a solid mass, which is
isoechoic with surrounding breast tissue." The cytology
sample, which Sorkin sent to a nonparty lab for testing, was
interpreted as "Benign. No evidence of malignancy
April 7, 2006, Olena returned to Sorkin's office and
informed him that a home pregnancy test was positive. The
pregnancy was confirmed by an in-office test. Sorkin did not
perform a breast examination on that date. Olena continued to
see Sorkin for prenatal care. At a routine office visit on
April 27, 2006, Sorkin performed a breast examination that
revealed no abnormalities.
25, 2006, Olena presented with a palpable nodule in her left
breast of one to two centimeters and complaints of bloody
nipple discharge, prompting Sorkin to refer her to a breast
surgeon, Leslie Strong. There was a notable delay in Olena
seeing Strong, which was attributed to Olena's inability
to obtain an appointment with Strong at an office location in
Staten Island, where Olena lived.
September 15, 2006, Olena presented to Strong, who examined
her and was unable to palpate any nodules. Strong suspected
fibrocystic disease, but wanted to rule out the presence of a
tumor. At a follow-up visit on September 25, 2006, at which
point Olena was 31 weeks into her pregnancy, Strong sent
Olena for an emergency biopsy, which was positive for
malignant cells indicative of "high grade carcinoma
metastatic to the lymph nodes."
September 25, 2006, Olena met with an oncologist, Maxim
Kreditor, who determined in consultation with Sorkin that it
would not be safe to deliver the baby until the pregnancy had
reached 34 weeks and, therefore, it was not appropriate ...