Opinion
9206/05.
Decided on November 25, 2009.
SHELDON J. TASHMAN, P.C., Attorney for Plaintiffs, Jason Levine, Esq., BENVENUTO, ARCIERO McANDREW.
BARTLETT McDONOUGH BASTONE MONAGHAN, LLP.
The following documents numbered 1 to 26 were read in connection with the motion by defendants, Ardsley Radiology, P.C. and Dr. Joseph McCarthy, for summary judgment pursuant to CPLR § 3212 and the cross-motion by the plaintiffs to strike the defendants' answer pursuant to CPLR § 3126:
Notice of Motion, Affirmations, Exhibits1-12
Memorandum of Law in Support of Motion13
Notice of Cross-Motion, Affirmation, Exhibits14-21
Reply Affirmation and
Affirmation in Opposition to Cross Motion22-23
Reply Affirmation to Cross-Motion, Exhibits24-26
Upon the foregoing papers, it is Ordered that these motions are decided as follows:
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs, Jane and Michael Rodman, commenced this medical malpractice action against the defendants, Ardsley Radiology, P.C., and Dr. Joseph McCarthy, alleging that they deviated from good and accepted radiological medicine by failing to properly interpret Jane Rodman's November 18, 2003 right breast mammography and failing to perform additional mammographic views in 2003, which deviation resulted in an approximate one-year delay in the diagnosis of right breast cancer. Plaintiffs allege that the delay caused Ms. Rodman to undergo a radical mastectomy, two trans flap surgeries, permanent scarring, right breast reconstructive surgery, chemotherapy, hormonal therapy, and prophylactic oophorectomy. Plaintiffs allege that had the defendants properly interpreted the 2003 mammogram and/or taken additional views as the standard of care indicated, the cancer would have been detected one year earlier and Ms. Rodman's care and treatment would have been substantially less, merely requiring breast conserving treatment consisting of a lumpectomy, radiation therapy, and hormone therapy.
Plaintiffs have discontinued the action as against the defendants, Dr. Mark Armstrong and Dr. David Wolin.
The defendants deny the claims of the plaintiffs and specifically, maintain that the alleged one-year delay in diagnosing the right breast cancer was not causally related to the injuries claimed by the plaintiffs.
Ms. Rodman underwent routine mammograms at Ardsley Radiology, P.C. in 1995, 1996, 1998, 2000, 2001, 2003, and 2004. Dr. McCarthy interpreted the November 18, 2003 bilateral mammography by comparing the views to previous mammographic examinations, the most recent being February 14, 2001. In his report dated November 18, 2003, Dr. McCarthy opined that there were no significant changes from prior examinations and the findings were not suspicious for breast malignancy. Dr. McCarthy also interpreted a right breast ultrasound taken that same day and noted in his report that there were several breast cysts at the 10 o'clock axis.
On November 9, 2004, a bilateral mammography was performed and the views were compared to previous examinations, the most recent being November 18, 2003. Dr. McCarthy's November 9, 2004 mammography report states that although both breasts showed diffuse microcalcifications in previous exams, the 2004 film of the right breast showed microcalfications in two areas not previously identified at the 11 o'clock axis, which did not appear benign, but were highly suggestive of malignancy. A biopsy confirmed the presence of right breast cancer.
At her deposition, Ms. Rodman testified that she made two trips to Ardsley Radiology to retrieve her 2003 mammography films, at the request of her surgeon, Dr. Kurian. The visits were made on or about November 15, 2004, and then again a week later. On both occasions, the Ardsley Radiology receptionist told her that she conducted a search, but could not locate the 2003 mammography films of the right breast. On the second visit, Ms. Rodman waited for an hour for the receptionist to conduct the search. Apparently, Ardsley Radiology had recently moved its offices from Yonkers to Ardsley, which was implied to be a possible reason the films could not be located. Ms. Rodman testified that she was given all of her films except the 2003 mammography films of her right breast. The Ardsley Radiology records include release forms dated November 16, 2004 and December 1, 2004, which seem to indicate that Ms. Rodman was given five films from her 2004 mammography and an original ultrasound film.
On November 23, 2004, Ms. Rodman underwent a right mastectomy with sentinal lymph node biopsy, which revealed evidence of multifocal microinvasive disease and lymph-vascular invasion. Ms. Rodman's follow-up care and treatment included chemotherapy, right breast reconstruction surgery, hormonal therapy and prophylactic oophorectomy.
The defendants move for summary judgment on the issue of proximate cause — that the care and treatment rendered by the defendants was not causally related to the injuries claimed by the plaintiffs. Relying upon the affidavit of their qualified expert, a physician Board Certified in Medical Oncology and Internal Medicine, defendants argue that even if the breast cancer was diagnosed one year earlier in 2003 rather than in 2004, plaintiff's severity of cancer, course of treatment, complications from treatment, and chance for survival and cure would not have been significantly different. Defendants' expert reviewed the bills of particulars, deposition testimony, and Ms. Rodman's medical records, including those from Ardsley Radiology, before rendering his opinion. While reference is made to Dr. McCarthy's November 18, 2003 mammography report, the expert does not specifically state in his affidavit that he relied upon this report to reach his conclusions. His opinion is based upon the plaintiff's relatively young age, strong family history of ovarian and breast cancer, the staging of the cancer in 2004 (stage 1), the size of the tumor in 2004, the favorable pathological diagnosis of the tumor in terms of the extent of the disease, and the effective adjuvant chemotherapy.
Plaintiffs oppose the motion for summary judgment, relying upon the affidavit of their own qualified expert, a physician Board Certified in Internal Medicine and Oncology. In his opinion, based upon the size of the tumor at the time of the November 2004 surgery, the tumor was present when the November 18, 2003 mammogram was taken, and had the cancer been diagnosed at that time, the treatment would have more likely than not consisted of a right breast-conserving procedure followed by radiation therapy and hormonal therapy, sparing Ms. Rodman from the need for total mastectomy, trans flap surgeries, breast reconstruction surgery, left breast reduction surgery, and chemotherapy. Relying upon the operative and pathology reports from St. John's Riverside Hospital, plaintiffs' expert references the size of the tumor removed during the surgery, "3 x 2.5 x 2 cm," and that the "pathology revealed ductal carcinoma in-situ, intermediate to high grade with microinvasive disease and lobular extension with lymphovascular invasion and involvement of the posterior margin of resection."
Although plaintiff's expert mentions that he could not review the November 18, 2003 right breast mammography film because it was reportedly missing, he does not comment on its significance to the case. He neither states nor implies that it was necessary for him to review the film to reach his conclusions, nor does he make any attempt to show that the missing film is critical to the case or that the plaintiffs are prejudiced in any way by the film's loss or destruction.
Plaintiffs also cross-move to strike the defendants' answer for their failure to produce the 2003 right breast mammography film arguing that Dr. McCarthy was last in possession of the film, which is now missing without explanation. Plaintiffs allege Dr. McCarthy has motive to destroy the 2003 right breast film to hide his errors in misinterpreting the film and failing to detect the cancer nearly one year sooner.
Defendants oppose the cross-motion arguing there is no proof that the defendants willfully failed to disclose the 2003 right breast mammography film and that it might be in plaintiffs' possession, as Ms. Rodman signed out various films from Ardsley Radiology, P.C., including the 2003 ultrasound. Defendants also argue that their motion for summary judgment on the issue of causation is not predicated upon an interpretation of the November 18, 2003 mammographic film or report, but instead relies upon the 2004 records and films of the radiologist, surgeon, and oncologist. For purposes of their motion, the defendants argue that the 2003 film is irrelevant.
DISCUSSION/ANALYSIS Defendants' Motion for Summary Judgment on Causation
The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage. Roca v. Perel , 51 AD3d 757 (2d Dept. 2008); Feinberg v. Feit , 23 AD3d 517 (2d Dept. 2005). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986), citing Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Id. "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact." Alvarez v. Prospect Hospital, 68 NY2d at 324, citing Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).
In support of their motion for summary judgment, the defendants submit the affidavit of a qualified expert, which states that even if the right breast cancer had been diagnosed in November 2003 as opposed to November 2004, plaintiff's severity of cancer, course of treatment, including the need for a radical mastectomy, adjuvant chemotherapy, and prohylactic oophorectomy, complications from any treatment, and chance for survival and cure would not have been different in any significant way. Based upon their expert affidavit, which denies that the plaintiffs' injuries were proximately caused by the alleged one-year delay in diagnosing the right breast cancer, the defendants have met their initial burden, prima facie, showing their entitlement to summary judgment as matter of law. See Smith-Johnson v. Gabbur , 65 AD3d 1122 (2d Dept. 2009); Feinberg v. Feit, supra, 23 AD3d 517. Plaintiffs argue that summary judgment should be denied because the defendants are unable to produce the November 18, 2003 mammographic film or authenticate the report, but their expert relied upon the inadmissible report in rendering his opinion. Although defendants' expert references the November 18, 2003 right breast mammography report in his affidavit, he does not state that his opinion is predicated upon the report or the reading or interpretation of the film. Defendants argument is on causation and, for purposes of the motion for summary judgment, assumes that the cancer could have been detected in the 2003 film. Because the plaintiffs have failed to establish in their motion papers that the November 18, 2003 film or the defendants' expert's interpretation of the November 18, 2003 report is crucial to the case, the defendants' motion for summary judgment should not fail solely because the film is no longer available for review. See Jennosa v. Vermeer Manufacturing Company, 64 AD3d 630 (2d Dept. 2009)."It is well settled that to oppose a defendant's summary judgment motion in a medical malpractice action, a plaintiff must submit evidentiary facts or materials to rebut the physician's showing that he was not liable for the plaintiff's injuries." McMahon v. Badia, 195 AD2d 445, 446 (2d Dept. 1993). "General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a] defendant physician's summary judgment motion." Alvarez v. Prospect Hospital, supra, 68 NY2d at 325.
In opposition to the defendants' motion, the plaintiffs submit an affidavit from their own qualified expert, who opines that based upon the size of the tumor at the time of the surgery in November 2004, the tumor would have necessarily been present at the time of the 2003 mammogram. He notes that following the mastectomy with sentinel node biopsy, the "pathology revealed ductal carcinoma in-situ, intermediate to high grade with microinvasive disease and lobular extension with lymphovascular invasion and involvement of the posterior margin of resection." Had the tumor been diagnosed one year earlier, plaintiffs' expert opines that treatment would have likely been a right breast conserving procedure followed by radiation therapy and hormonal therapy rather than a total right mastectomy, trans flap surgeries, right breast reconstruction surgery, left breast reduction surgery, and chemotherapy .
The affidavit of plaintiff's expert is sufficient to raise a question of fact precluding the granting of summary judgment to the defendants. The expert refutes the assertions of defendants' expert, opining that the surgery was more invasive and the care and treatment more extensive than it had to be because of the defendants' delay in diagnosis. This opinion cannot be considered speculative or conclusory, as it relies upon specifically cited evidence in the record, namely the records from Ardsley Radiology and the operative and pathology reports from St. John's Riverside Hospital. See Roca v. Perel, supra, 51 AD3d at 759. Viewing the evidence in the light most favorable to the plaintiff, material issues of fact exist as to whether the alleged delay caused or contributed to the plaintiffs' injuries requiring a denial of the defendants' motion. See McMahon v. Badia, supra, 195 AD2d 445. Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Feinberg v. Feit, supra, 23 AD3d 517. Accordingly, since the plaintiffs raise triable issues of fact in opposition to the defendants' prima facie showing of entitlement to judgment as a matter of law, the defendants' motion is denied.
Plaintiffs' Motion to Strike Defendants' Answer Based upon Alleged Spoliation of Evidence
Plaintiffs cross-move for an order pursuant to CPLR § 3126 striking the defendants' answer because of their alleged spoliation of key evidence, namely the November 18, 2003 right breast mammographic film. CLPR § 3126 states in pertinent part that where a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed, the court may issue an appropriate penalty against the disobedient party, including precluding evidence, striking pleadings, dismissing the action, or rendering a default judgment. However, the proposed penalties are not intended to be exhaustive, and courts are encouraged "to exercise their ingenuity, and to devise sanctions as narrowly tailored as possible to the circumstances of the individual case." DiDomenico v. C S Aeromatik Supplies, Inc., 252 AD2d 41, 49 (2d Dept. 1998). "The determination of the appropriate sanction for spoliation of evidence is within the broad discretion of the Supreme Court." Allstate Insurance Company v. Kearns, 309 AD2d 776 (2d Dept. 2003). "Where the evidence lost is not central to the case or its destruction is not prejudicial, a lesser sanction, or no sanction, may be appropriate." Klein v. Ford Motor Company, 303 AD2d 376, 377 (2d Dept 2003).
"When a party negligently [loses] or intentionally destroys key evidence, thereby depriving the non-responsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading." Jennosa v. Vermeer Manufacturing Company, 64 AD3d 630, 631 (2d Dept. 2009). The sanction of striking a pleading "has been applied even if the evidence was destroyed before the spoliator became a party, provided it was on notice that the evidence might be needed for future litigation." Di Domenico v. C S Aeromatik Supplies, Inc., supra, 252 AD2d at 53. Thus, in order to apply the drastic sanction of striking a pleading, the moving party must establish that 1) the spoliator negligently lost or wilfully destroyed physical evidence; 2) the evidence was crucial to the movant in that it was necessary to present a case or establish a defense; and 3) the evidence was destroyed or lost after the spoliator was placed on notice that the evidence might be needed for future litigation. See Dessources v. Good Samaritan Hospital, 65 AD2d 1008, 1010 (2d Dept. 2009) ; Tawedros v. St. Vincent's Hospital of New York, 281 AD2d 184 (1st Dept. 2001) (where the Court held that it was inappropriate to strike the defendant hospital's answer where the defendant's failure to produce the plaintiff's complete original hospital record was not found to be willful and contumacious; the record was already lost before the plaintiff asked for it; it appeared that the plaintiff would be able to prove his case without the missing information; and the defendant did not gain an unfair advantage as a result of the missing information.)
Plaintiffs fail to establish on the papers submitted that the films were last in the possession of the defendants or that they have been disposed of or destroyed. The defendants cannot locate the film and do not know how or why the film is missing. Although denied by Ms. Rodman, there is also some indication in the record that she might have signed out the 2003 mammogram of the right breast in addition to various other films from Ardsley Radiology P.C. in November or December 2004, or that the film was lost when Ardsley Radiology moved its offices from Yonkers to Ardsley in 2004.
In any event, the record indicates that the film was missing early on in November 2004, well before this litigation was commenced in June of 2005. There is no proof in the record that the film was lost after the defendants were placed on notice that the film might be needed for future litigation.
Furthermore, the plaintiffs have failed to establish in their motion papers through their expert witness that the 2003 film is crucial to proving their case. While plaintiffs' expert mentions in his affidavit that he could not review the November 18, 2003 right breast mammography film because it was reportedly missing, he does not comment on its significance. He makes no attempt to show that the missing film is critical to the case or that the plaintiffs are prejudiced in any way by the film's loss or destruction. See Jennosa v. Vermeer Manufacturing Company, supra, 64 AD3d 630; Tawedros v. St. Vincent's Hospital of New York, supra, 281 AD2d 184; Chiu Ping Chung v. Caravan Coach Company, 285 AD2d 621 (2d Dept. 2001).
The record before this Court on the motions is insufficient to support the drastic relief requested by the plaintiffs. "The plaintiff[s] failed to establish that the defendant[s] intentionally or negligently failed to preserve crucial evidence after being placed on notice that such evidence might be needed for future litigation." Dessources v. Good Samaritan Hospital, supra, 65 AD2d at 1010. At this juncture, it is not clear from the motion papers whether any sanction is appropriate. Therefore, the plaintiff's cross-motion pursuant to CPLR § 3126 to strike the defendants' answer is denied without prejudice to the plaintiff moving for a lesser sanction at trial upon a showing of genuine prejudice. See Klein v. Ford Motor Company, supra, 303 AD2d at 377; Chiu Ping Chung v. Caravan Coach Company, supra, 285 AD2d 621 ; Tawedros v. St. Vincent's Hospital of New York, supra, 281 AD2d 184 (where the Court held that the appropriate sanction for defendant hospital's failure to produce the original complete record was for the trial court to instruct the jury as to adverse inferences, as well as the need to weigh the defendant's explanation for destroying the original record and producing an incomplete and allegedly altered copy.)
The foregoing constitutes the Decision and Order of this Court.