Opinion
Index No. 2023-50217
03-20-2023
Aldonia Wynn, as Administrator of the Estate of ERNEST WYNN, Deceased, and ALDONIA WYNN, Individually, Plaintiffs, v. Susanna Teng, M.D., ADVANTAGECARE PHYSICIANS and ADVANTAGECARE PHYSICIANS- LINCOLN SQUARE MEDICAL OFFICE, Defendants.
Plaintiffs' Attorney Rikki B. Dascal, Esq. The Jacob D. Fuchsberg Law Firm Defendants' Attorney Rachel H. Poritz, Esq. Silverson, Pareres & Lombardi, LLP
Unpublished Opinion
Plaintiffs' Attorney Rikki B. Dascal, Esq. The Jacob D. Fuchsberg Law Firm
Defendants' Attorney Rachel H. Poritz, Esq. Silverson, Pareres & Lombardi, LLP
Joseph E. Capella, J.S.C.
The following papers numbered 1 to 5 read on this motion dated July 13, 2022.
PAPERS NUMBERED
NOTICE OF MOTION & MEMO OF LAW 1 - 2
ANSWERING AFFIRMATION 3
REPLY AFFIRMATION & MEMO OF LAW 4 - 5
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
Motion by defendants for summary judgment (CPLR 3212) and dismissal of plaintiffs' complaint, which alleges medical malpractice, negligent hiring, wrongful death and lack of informed consent is granted in part and denied in part, and plaintiffs' cross-motion to amend their bill of particulars (BP) is granted. Plaintiffs allege in their complaint and bill of particulars that defendants failed to diagnose and treat decedent's pancreatic cancer from November 1, 2017, through January 3, 2019, resulting in his death on January 3, 2019. Decedent was diagnosed with pancreatic cancer in September 2018. The initial burden is on defendants to make a prima facie showing of an entitlement to summary judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v Prospect, 68 N.Y.2d 320 [1986].) If they do, then the burden shifts to plaintiffs to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial (Alvarez, 68 N.Y.2d 320), and denial of summary judgment.
Although loss of services is not separately titled in the complaint, the 41st paragraph does allege loss of services, which would correspond with Aldonia Wynn being listed as an individual plaintiff.
In support of the motion is a detailed and thorough expert affirmation by Dr. Richard Dunne, who is board certified in internal and oncology medicine, and who reviewed the pleadings, deposition transcripts and medical records in order to render his opinions. Dr. Dunne states that "the period of alleged negligence begins on November 1, 2017, but decedent was treated at [Advantagecare Physicians (ACP)] prior to that date." He then goes into detail to describe what he considers to be the appropriate care and treatment rendered to decedent by defendants during the period of alleged negligence (i.e., November 1, 2017, through January 3, 2019), as well as prior to that period when Dr. Teng became his primary care physician on June 1, 2015. Dr. Dunne describes in detail how the care and treatment rendered from June 2015 through August 2016 was within accepted standards of medical care. According to Dr. Dunne, during this period there were no symptoms reported, or anything in decedent's medical history or physical exams consistent with pancreatic cancer or warranting additional testing, referrals or treatment recommendations.
Dr. Dunne notes that on June 1, 2015, Dr. Teng conducted a complete physical examination of decedent at ACP, and they discussed diet and exercise. And in February 2016, decedent saw Nurse Practitioner (NP) Margaret Taylor at ACP regarding complaints of stomach pain for five days. According to Dr. Dunne, the care and treatment rendered on these dates was within the standard of care. Dr. Dunne further notes that on August 24, 2016, decedent reported to Dr. Teng that his stomach discomfort felt better, and Dr. Teng referred decedent to urology for evaluation of various urinary symptoms. According to Dr. Dunne, the care and treatment rendered on this date was also within the standard of care, and decedent's intermittent complaints of stomach pain/discomfort in 2015/2016 did not indicate a need for a referral, further evaluation or testing.
Dr. Dunne then goes on to note that on February 14, 2017, decedent was evaluated by NP Taylor for dysuria and erectile dysfunction, they discussed diet and exercise, and decedent was given a urology referral. And on September 8, 2017, decedent was evaluated by Dr. Teng for complaints of chest pain, numbness in left arm and back pain. An EKG was performed, and decedent was given a cardiology referral. Dr. Dunne opines that the care and treatment rendered at ACP by Dr. Teng and NP Taylor was within accepted standards of care and treatment, and there was nothing indicating pancreatic cancer. Lastly, Dr. Dunne notes that on March 26, 2018, decedent presented to Dr. Teng for a comprehensive physical exam, at which time decedent reported weight loss and stomach issues. According to Dr. Dunne, Dr. Teng appropriately noted dyspepsia, and ordered, inter alia, CBC, comprehensive metabolic panel and urinalysis, and ordered physical therapy. Dr. Dunne then goes on to review the care and treatment rendered during the alleged period of negligence in the complaint and BP (i.e., November 1, 2017, through January 3, 2019), and similarly opines that the care and treatment rendered during this period was also within accepted standards. Based on the aforementioned, the Court is satisfied that defendants have met their burden for summary judgment, (Zuckerman v City of NY, 49 N.Y.2d 557 [1980]; Kaffka v NY Hospital, 228 A.D.2d 332 [1st Dept 1996]), which now shifts to plaintiffs to demonstrate that issues of fact exist to warrant a trial on this issue.
In opposing defendants' motion, plaintiffs also cross move to amend their BP to expand the alleged period of negligence to now include February 2016 through September 2017, and to allege that had decedent's pancreatic cancer been diagnosed during this earlier period, decedent would have had a better chance of having a resection and more prolonged survival. Plaintiffs include in their papers two expert affidavits, one by a physician who is board certified in internal medicine, and another by a physician who is board certified in surgery. The opinions of these two experts are being used to not only oppose defendants' summary judgment motion, but also provide merit to plaintiffs' request to amend their BP. (Liese v Hennessey, 164 A.D.3d 1318 [2nd Dept 2018]; Volpe v Good Samaritan, 213 A.D.2d 398 [1st Dept 1995].) According to plaintiffs' experts, on February 11, 2016, it was a departure from the standard of care to ignore decedent's substernal pain, epigastric pain and unintended weight loss, and an ultrasound and CT scan were indicated at this time. Plaintiffs' experts opine that on August 24, 2016, defendants failure to refer decedent to a gastroenterologist was a departure, "especially because he had been experiencing [stomach discomfort] for approximately four months." They further opine that on September 9, 2017, decedent's complaints of chest pain, numbness in left arm and back pain, were indicative of pancreatic cancer and should have been worked up. Defendants departed from the standard of care in failing to order a CT scan, MRI and ultrasound, and failing to refer decedent to a gastroenterologist. Lastly, they opine that on March 26, 2018, when decedent presented to defendants weighing 181 pounds complaining of stomach issues, back pain, and dark yellow urine, that these were signs of pancreatic cancer which were required to be investigated through imaging and a gastroenterologist referral.
In support of their request to amend the BP, plaintiffs argue that this request is being made less than six months after they filed their note of issue, which they argue is neither inordinate nor excessive. (McMurray v City of New York, 43 N.Y.2d 400 [1997].) In addition, they argue that the original BP already described the earlier dates of services (i.e., February 2016 through September 2017), and therefore defendants cannot claim prejudice or surprise. (Moore v NYC Transit, 161 A.D.2d 505 [1st Dept 1990].) Lastly, they argue that defendants and their expert, Dr. Dunne, argued in detail that they were not negligent during the period of February 2016 through September 2017. The Court has broad discretion in deciding whether leave to amend a BP should be granted, and it would be considered an improvident exercise of discretion to deny leave in the absence of an inordinate delay and (emphasis added) a showing of prejudice. (Scarangello v State of NY, 111 A.D.2d 798 [2nd Dept 1985].) Unlike the Fourth Department's requirement that a showing of special and extraordinary circumstances exist to amend a BP post note of issue (Jeannette v Williot, 179 A.D.3d 1479 [4th Dept 2020]), the First Department still adheres to freely granting an amendment absent a showing of prejudice, unless the amendment is sought on the eve of trial, which is not the case here. (Galvez v Columbus, 161 A.D.3d 530 [1st Dept 2018]; Cherebin v Empress, 43 A.D.3d 364 [1st Dept 2007].) It should also be noted that it is not entirely clear why plaintiffs did not amend their BP prior to filing the note of issue, (CPLR 3042(b) (BP may be amended once as a matter of course prior to filing note of issue)), and thereby avoid the need for the instant cross-motion.
As for the delay of less than six months post note of issue, the Court is not convinced that this delay was inordinate, especially if there is no prejudice. (Cherebin, 43 A.D.3d 364.) And although there are no proposed changes to the dates of services rendered, or the type of services rendered, plaintiffs are attempting to add additional departures, which defendants may never have anticipated and may thereby prove highly prejudicial to their defense. (Stoval v Lenox, 200 A.D.3d 570 [1st Dept 2021].) On this issue of prejudice, while delay is an important consideration, prejudice or the lack thereof is the critical consideration in determining whether the amendment is appropriate. (Lazzari v Qualcon, 62 Misc.3d 1082 [Sup Ct, Bronx County 2019].) It should be noted that plaintiffs do not provide an excuse for their delay in seeking to amend; however, the evidence required to support the additional departures were contained in the records previously exchanged during discovery. (Galvez, 161 A.D.3d 530.) Moreover, as plaintiffs correctly note, defendants' expert specifically addressed the additional departures that are part of the proposed amended BP. Therefore, the Court finds that there is no prejudice to defendants in allowing these additional departures to be included in an amended BP.
Based on the aforementioned, plaintiffs' cross-motion to amend their BP is granted. As for defendant's motion, it should be noted that there is no opposition to that portion of the motion seeking dismissal of plaintiffs' claims for negligent hiring, lack of informed consent, and medical malpractice, but only as it relates to all departures alleged during the period of November 1, 2017, through January 3, 2019. On the other hand, viewing the evidence in a light most favorable to plaintiffs, (O'Sullivan v Presbyterian, 217 A.D.2d 98 [1st Dept 1995]), the Court is satisfied that the departures raised by plaintiffs' experts for the period of February 2016 through September 2017, and now incorporated into the Amended BP, create issues of fact sufficient to warrant a trial regarding same. Therefore, that portion of defendants' motion seeking dismissal of plaintiffs' negligent hiring, lack of informed consent, and all medical malpractice departures alleged during the period of November 1, 2017, through January 3, 2019, is granted. The departures alleged in the Amended BP for the period of February 2016 through September 2017, and Aldonia Wynn's loss of services claim shall be resolved by the trier of fact. Plaintiffs are directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.