Plaintiff Vicky Bjorke (hereinafter "plaintiff") commenced this medical malpractice action seeking to recover money damages based upon a claim of failure to properly diagnose and treat her breast cancer.^[FN1] With all discovery complete and the action awaiting trial, four of the individual defendants and their related medical facilities have moved for summary judgment dismissing the complaint.

In early 2002 plaintiff sought treatment from defendant Ira Rubenstein, M.D. when she had symptoms which "included pain, pink and red skin, warmth of skin, skin changes, peau d'oranges, heaviness, inflammation and palpable swelling and thickening of the left breast" (Slater Affirm., 9/26/06, par.5). Initially, Rubenstein diagnosed plaintiff with mastitis, but he referred her for a left mammogram, which was performed by defendant Joseph Yacovone, M.D. at defendant Horton Medical Center (Horton) on February 28, 2002. Upon his review of the mammogram, Yacovone reported: [*2]

"There is an increased trabecular pattern of the left breast compared to the right. This finding is new compared to a prior study of 10/19/2000.The patient gives a clinical history of cellulitis of the left breast which has been improving on antibiotics.The current study is indeterminate in regard to infection versus inflammatory malignancy. Suggest clinical follow-up. If the patients [sic] inflammation resolves clinically, repeat mammogram is recommended. If there is not complete resolution, biopsy is recommended.The right breast is unremarkable and unchanged.IMPRESSION: 1) INFLAMMATORY CHANGES IN THE LEFT BREAST AS DESCRIBED. SUGGEST FOLLOW-UP AS DESCRIBED.BI-RADS CATEGORY 3: PROBABLY BENIGN FINDING-SHORT INTERVAL FOLLOW-UP SUGGESTED." (Milligram Affirm., 8/15/06, Exh.G [capitalization in original]).

After receiving Yacovone's report, and when plaintiff had some persistent redness of her left breast at an examination on March 6, 2002, Rubenstein referred her to defendant Howard Karpoff, M.D.

On March 12, 2002 Karpoff performed a physical examination of plaintiff and obtained a medical history from her. Based upon his impression that there was inflammatory carcinoma versus mastitis, Karpoff advised plaintiff to undergo an incisional biopsy of her left breast, which he performed. The biopsy was read by defendant Jennifer Wilken at Horton on March 20, 2002. Wilken then issued a report concluding that there was no malignancy.

Plaintiff continued to treat with Rubenstein and Karpoff through the end of May 2002, during which time she reported that her breast improved when she was taking the antibiotics prescribed for her, but that her symptoms returned when she ceased the medication. Consequently, Karpoff ordered additional imaging, including a left breast ultrasound and a repeat mammogram, which were performed at Horton on May 28 and June 10, 2002, respectively. The mammogram was interpreted by defendant Julie Barudin, who reported as follows:

"Bilateral diagnostic mammography is performed on 6/10/02. Comparison is made to prior films dated 2/28/02 and 10/19/00.Routine views are obtained along with additional views on the left. The views are suboptimal on the left because of inability to tolerate optimal compression because of extreme pain. The right breast is predominantly fatty and no suspicious findings are seen on the right. The right breast has not changed when compared to previous.In the left breast there is skin thickening and trabecular thickening which does not appear [*3]significantly changed from 2/28/02. There were questionable very faint calcifications seen in the left upper outer quadrant. Additional views including magnification views were attempted, but these could not be tolerated because of patients [sic] pain.Ultrasound was performed of the left breast. There is skin thickening in the upper inner quadrant. Upon scanning by the Radiologist on 6/10/02, there was a question of some shadowing at the approximate 6:00 o'clock axis. However, this could not be proved because the patients [sic] pain precluded adequate pressure being placed with a transducer.Therefore, although there are some suspicious findings, neither finding, either mammographically or sonographically could be definitively shown because of the patients [sic] clinical condition. The findings were discussed with Dr. Karpoff. If the patients [sic] condition improves and she can tolerate increased compression in the future, than [sic] additional mammographic views and additional ultrasound would be recommended.IMPRESSION: 1) THERE IS SKIN THICKENING AND TRABECULAR THICKENING IN THE LEFT BREAST. THE DIFFERENTIAL DIAGNOSIS INCLUDES MASTITIS AS WELL AS INFLAMMATORY CARCINOMA.2) SEVERAL OTHER QUESTIONABLE ABNORMALITIES COULD NOT BE DEFINITELY SHOWN, EITHER MAMMOGRAPHICALLY OR SONOGRAPHICALLY AS DISCUSSED ABOVE.3) CLINICAL CORRELATION IS ADVISED. IF THE PATIENTS [sic] CLINICAL CONDITION IMPROVES, THAN [sic] ADDITIONAL IMAGING EVALUATION INCLUDING MAMMOGRAPHIC VIEWS AND ULTRASOUND EVALUATION WOULD BE RECOMMENDED AT THAT TIME.BI-RADS CATEFORY 0: NEED ADDITIONAL IMAGING EVALUATION." (Milligram Affirm., 8/15/06 Exh.K, P.1-2 [capitalization in original]).

After he received these test results and then met with plaintiff for the last time, on June 17, 2002, at which point she had mild erythema with persistent thickening, Karpoff recommended that she obtain a second medical opinion at Memorial Sloane Kettering Cancer Center.

Some time later in June 2002 plaintiff began treating with defendant Anthony Policastro, M.D. at defendant Westchester County Medical Center (WCMC). Policastro ordered a diagnostic mammogram that was performed on November 4, 2002. That mammogram was read by Grace Goerge, M.D., who "recognized the areas on the films which were suspicious for malignancies, and recommended further evaluation with biopsy" (Slater Affirm., 9/26/06, par.13). Following that test, Policastro ordered an MR scan of plaintiff's left breast that was read by defendant Joseph McCarthy of defendant Ardsley Radiology, P.C. on November 11, 2002. Three months later, on or about February 5, 2003, plaintiff underwent a mastectomy at WCMC that was performed by Policastro. [*4]

On October 21, 2003 plaintiffs commenced this action, asserting causes of action for medical malpractice, lack of informed consent and loss of consortium. In sum, it is plaintiffs' contention that the defendants "collective[ly] fail[ed] to properly and timely diagnose and treat plaintiff['s] duct carcinoma of the left breast and inflammatory breast cancer, resulting in metastasis and lymph node involvement" (id., par.3).

Pretrial discovery was conducted by the parties and the action was subsequently certified as trial ready by Justice Linda S. Jamieson. Now, as noted, with the case awaiting trial, four summary judgment motions have been filed by certain of the defendants. The Court addresses the motions in the order that it deems most logical.

On their motion, Karpoff and Orange seek summary judgment dismissing the complaint to the extent that it asserts claims against them. In support of their motion, they have offered the affirmation of Robert Kulak, M.D., an expert in the field of general surgery. As explained by Kulak, Karpoff's recommendation that plaintiff undergo an incisional biopsy was appropriate, as was the manner in which that procedure was performed. Kulak further asserts that Karpoff's treatment of plaintiff with antibiotics and his overall treatment of the symptoms presented by plaintiff were in accordance with good and accepted standards of medical practice. That evidence is sufficient to entitle Karpoff and Orange to summary judgment, thereby shifting the burden to plaintiff to demonstrate the existence of an issue of fact requiring a trial (see Horth v. Mansur, 243 AD2d 1041,1042 [3d Dept. 1997] ["In a medical malpractice action, the physician's burden on a motion for summary judgment can be met by the submission of affidavits and/or deposition testimony and medical records which rebut plaintiff's claim of malpractice with factual proof", at which point "[t]he plaintiff must then rebut the prima facie showing that the physician was not negligent"] [internal citations omitted]).

Here, plaintiff attempts to satisfy that burden by submitting the affirmation of her own expert, who states that he is "Board-Certified in the field of radiology" (Pl. Expert Affid., 9/26/06, par.1).^[FN2] In his affirmation, plaintiff's expert [*5]contends, inter alia, that the type of biopsy performed by Karpoff "was insufficient to render a positive finding of inflammatory carcinoma", that "further diagnostic testing was warranted", and that Karpoff "ignored the plaintiff's clinical symptoms and complaints, and failed to make the proper diagnosis of duct carcinoma and inflammatory breast cancer" (Pl. Expert Affirm., par.5). As expressed by plaintiff's expert, "It is my opinion, within a degree of medical certainty that had this defendant not departed from the standard of care, [plaintiff's] breast cancer would have been diagnosed at an earlier date" (id., par.6). Barring other considerations, this expert evidence would be sufficient to defeat the motion and require a trial of plaintiff's claims against Karpoff and Orange (see Wahila v. Kerr, 204 AD2d 935,937 [3d Dept. 1994]).

As relates to Karpoff, there is another significant factor that must be considered by the Court. Specifically, relying upon the decision of the Appellate Division, Second Department, in Behar v. Coren (21 AD3d 1045 [2d Dept. 2005], lv. denied 6 NY3d 705 [2006]), Karpoff complains that the affirmation of plaintiff's expert is of no evidentiary value because that expert has not set forth any foundation for his opinion as to the standard of care applicable to a surgeon.

In Behar, in opposing a summary judgment motion in a medical malpractice action, the plaintiff offered the affidavit of a pathologist who challenged the opinions of the defendants' respective experts concerning the surgical and gastroenterological treatment given to the infant plaintiff. Addressing the attack upon the affidavit of plaintiff's expert, the reviewing Court explained:

"The affidavit of the plaintiffs' expert did not mention whether he had any specific training or expertise in surgery, gastroenterology, or pediatrics. Moreover, the affidavit did not indicate that he had familiarized himself with the relevant literature or otherwise set forth how he was, or became, familiar with the applicable standards of care in this specialized area of [*6]practice. While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable'. Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered." (Supra, 21 AD3d, at 1046 [emphasis added]).

Because the plaintiff's expert in Behan "failed to lay the requisite foundation for his asserted familiarity with the applicable standards of care", the Appellate Division held that "his affidavit was of no probative value" (ibid.).

Here, in opposing this motion, plaintiff has presented only the affirmation of a radiologist, whose specialty in medicine plainly differs from that of Karpoff. Absent from that affirmation is any statement of the manner in which he has become familiar with the standards of care applicable to a surgeon, such that he may offer a valid opinion as to the proper care and treatment that Karpoff should have given to plaintiff. Because of the lack of that required foundation for his opinions, the affirmation of plaintiff's expert is "of no probative value" in opposition to this motion (see ibid.). Since there is no other expert evidence which "rebut[s] the prima facie showing that [Karpoff] was not negligent", plaintiff has failed to meet her burden in opposing this motion (see ibid.).

Accordingly, Karpoff is granted summary judgment dismissing the complaint to the extent that it asserts any claims against him. Similarly, Orange, which is sued upon a theory of vicarious liability for Karpoff's alleged malpractice, is granted summary judgment dismissing the complaint to the extent that it asserts any claim against Orange based upon the conduct of Karpoff.

Having reached that conclusion as to Karpoff's motion, the motion for summary judgment filed by Wilken is resolved without the need for extended discussion. Wilken, a pathologist, has presented the affirmation of Schuyler Newman, M.D., who identifies himself as a physician who is "Board Certified in the field of anatomic and clinical pathology" (Newman Affid., par.1). In sum, it is Newman's opinion that Wilken properly interpreted the slides of the biopsy procedure performed by Karpoff. He further maintains that there was no requirement for Wilken to recommend any further testing because "a pathologist does not [*7]suggest clinical follow up or repeat biopsies", but "[i]nstead, these are to be decided by the clinician" (id., par.8). Newman's affirmation is sufficient to entitle Wilken and Horton to summary judgment, and shifted the burden to plaintiff to demonstrate that a factual issue exists requiring a trial (see Horth v. Mansur, supra, 243 AD2d, at 1042).

In her effort to defeat the motion, plaintiff relies upon an affidavit of the radiologist whose affidavit was offered in opposition to Karpoff's motion. However, that expert has offered no foundation for his opinion as to the standard of care that applies to a pathologist. As a consequence, once again the affirmation of plaintiff's expert has no probative value (Behar v. Coren, supra, 21 AD3d, at 1046).

For that reason, Wilken is granted summary judgment dismissing the complaint to the extent that it asserts any claims against her. And Horton, which is sued upon a theory of vicarious liability for Wilken's alleged malpractice, is granted summary judgment dismissing the complaint to the extent that it asserts any claim against Horton based upon the conduct of Wilken.

Finally, the Court turns to the two summary judgment motions filed by Yacovone, Barudin and Horton. In support of each motion, an affirmation from Susan Beatty, M.D., a board-certified radiologist, has been submitted. As set forth in Beatty's affirmations, it is her opinion that both Yacovone and Barudin properly interpreted the mammograms reviewed by them and both made appropriate recommendations as to further testing for plaintiff. The proof offered by both Yacovone and Barudin is sufficient to warrant summary judgment to them, and shifted the burden to plaintiff to demonstrate that a trial of her claims against them is necessary to resolve the material facts that are in dispute (see Giberson v. Panter, 286 AD2d 217,217-218 [1st Dept. 2001], lv. denied 97 NY2d 606 [2001]).

As with the two other motions, plaintiff's opposition is founded upon the affirmation of her radiology expert. Therein, he identifies several respects in which the interpretations and recommendations of Yacovone and Barudin failed to meet applicable professional standards. Unlike the situation with the surgeon and the pathologist, however, his area of expertise is the same as Yacovone and Barudin and, consequently, his affirmation does have probative worth in opposition to the motions. Moreover, the opinions of plaintiff's expert are sufficient to raise a factual issue as to whether Yacovone and Barudin committed medical [*8]malpractice (see Feinberg v. Feit, 23 AD3d 517,519 [2d Dept. 2005] ["[T]he affidavit of the plaintiff's radiology expert was sufficient to raise a triable issue of fact as to whether [defendant radiologist] and [defendant hospital] failed to take steps that would have led to an earlier diagnosis of lung cancer"]).

Accordingly, the Court denies both Yacovone's and Barudin's motions for summary judgment. Based upon that determination, the Court also denies the motions to the extent that they seek summary judgment dismissing any claims against Horton which are founded upon a theory of vicarious liability for the actions of the two radiologists.

The foregoing shall constitute the decision and order of the Court.

Dated: White Plains, New York

January 2, 2007

HON. WILLIAM J. GIACOMO, J.S.C.

cc:

Rende, Ryan & Downes

202 Mamaroneck Avenue

White Plains, New York 10601

Steven I. Milligram, Esq.

Tarshis, Catania, Liberth, Mahon & Milligram, PLLC

One Corwin Court

P.O. Box 1479

Newburgh, New York 12550

Bartlett, McDonough, Bastone & Monaghan, LLP

81 Main Street

White Plains, New York 10601

Brown & Tarantino, LLP [*9]

1 North Broadway

Suite 1010

White Plains, New York 10601