In this medical malpractice action commenced by Joan Dunn against her dermatologist Neal B. Schultz, M.D., based on his alleged failure to timely diagnose invasive squamous cell carcinoma on her nose, Dr. Schultz moves for summary judgment dismissing the complaint which alleges a lack of informed consent and departures from accepted standards of medical practice.

Plaintiff does not oppose the branch of Dr. Schultz' motion which seeks dismissal of the lack of informed consent cause of action, and it is fairly evident from the pleadings that the gravamen of the action is the failure to timely diagnose cancer rather than the failure to inform Dunn of the risks and benefits and the appropriate alternatives to the proposed course of treatment. Thus the lack of informed consent cause of action is dismissed. This leaves the branch of the motion which seeks dismissal of the first cause of action which according to Dunn's bill of particulars alleges that continuously between April 13, 1999 and April 23, 2004 Dr. Schultz failed to properly respond to Dunn's medical history and failed to properly detect and timely biopsy "lesions, marks and discolorations" on her nose and thus failed to diagnose the carcinoma of her nose, thereby causing the "growth and spread of ... carcinoma of the nose." See Bill of Particulars items 1, 2, 3, 14, 15, 17

Dunn, who was fair-skinned, saw Dr. Schultz over a number of years for her sun-damaged skin. Dr. Schultz' chart of the patient which begins on April 13, 1999 indicates that on that visit he treated Dunn with glycolic acid to attempt to destroy multiple areas of Actinic Keratosis ("AK"), on among other places Dunn's face. AK according to Stedman's Electronic Dictionary, 4th Ed. is a "premalignant warty lesion occurring on the sun-exposed skin of the face [*2]or hands in light-skinned persons... and squamous cell carcinoma may develop in a small proportion of untreated patients." See also Schultz, EBT pp 15-16 Dr. Schultz testified that there was a lack of precision in the opinion of how long it takes for Actinic Keratosis to evolve into cancer. EBT p.17 He further testified that while most people could not say with "medical certainty" how long it would take for AK to evolve into cancer, he testified that there was "some consensus that it took "years." Id p. 17; See also Schultz, EBT pp 84-85 Dr. Schultz testified that whenever his chart mentioned the face, that would not exclude the nose since the nose was part of the face. So the nose was potentially included. On June 9, 1999 Dr. Schultz again attempted to destroy multiple AK's on Dunn's face and hands and added night pads which contained acids to treat AK.

On March 28, 2000 Dunn complained of a rash on her face, and Dr. Schultz wrote in the chart "irritant dermatitis ® cheek vs irritated AKs." On May 23, 2000 Dunn presented again with multiple AKs on her face. Nighttime pads were prescribed. Dr. Schultz also excised an AK which had a palpable component in the area of Dunn's right mandible and sent it to a pathologist. The pathologist found in the "tan-white tissue" superficially invasive squamous cell carcinoma arising in AK. On July 31, 2000 Dr. Schultz biopsied an area below Dunn's left eye and left medial nasalala, and the pathologist diagnosed AK in both samples.

Dr. Schultz testified that he would use his judgment gained over 25 years to determine when to biopsy an area, and among the criteria he used were palpability, crustiness, erosions, bleeding, scaliness and roughness. Id pp 27, 31, 32, 39, 40, 41, 46, 104-105 At an October 23, 2000 visit to Dr. Schultz' office glycolic acid was applied to Dunn's hand. At the next visit of December 5, 2000 multiple AKs of the hands and face were destroyed with "CM," and nighttime pads were prescribed. On January 22, 2001 multiple AKs of the hands and face were again destroyed. Dr. Schultz testified that although there was no note indicating that he performed a full body check at that time, that did not preclude it having been done, and that there were other times he may have done a full body check but would not have noted it in his records. EBT p. 53 At the next visit of April 15, 2002 a body check was performed, GAT TX was applied to Dunn's face and hand and glycolic acid cream was prescribed. A left eyebrow biopsy that day showed inflamed seborrhea keratosis. At the July 15, 2002 visit a form of glycolic acid was applied to Dunn's face and hand to destroy multiple AKs. Dr. Schultz testified that the face would include the nose. EBT p. 54 Nighttime pads were prescribed. Biopsies taken that day of Dunn's wrist and right second web showed respectively AK and superficially invasive squamous cell carcinoma arising in AK. On September 10, 2002 glycolic acid was applied to Dunn's face to destroy multiple AKs and Dunn was told to use nighttime pads. Dr. Schultz testified (EBT pp 57-58) that "face" would include the nose. On October 21, 2002 Dr. Schultz treated sun-induced broken capillaries of Dunn's forehead and face and took biopsies from Dunn's neck and clavicle, which respectively revealed AK and squamous cell carcinoma in situ. The pathologist indicated that this might be bowenoid AK.

At Dunn's February 24, 2003 visit Dr. Schultz checked Dunn's facial skin and took a biopsy of skin below Dunn's right eye. The pathologist found squamous cell carcinoma, superficially invasive arising in AK. The patient returned on March 6 for followup. On May 27, 2003 glycolic acid was applied to destroy multiple AKs. On June 23 glycolic acid was again applied to destroy multiple AKs, and a biopsy of skin above the left eyebrow was taken which [*3]revealed superficially invasive squamous cell carcinoma, arising in AK. Dr. Schultz testified that a photo taken by him of Dunn on either June 23 or June 27, 2003 showed a flat discoloration on the left upper bridge of Dunn's nose. EBT p. 73 When asked if that was an area of the face that he treated on June 23 he answered that he believed that glycolic acid was used on the entire face except the eyelids. Id 73 Dr. Schultz was shown a black and white copy of that photograph (apparently the original was in color) and testified that if the area were pink "[i]t would be more apt to be pre-actinic keratosis." Id 72 He further testified that from that copy of the photo he saw nothing that represented squamous cell carcinoma. Id 73 Dunn returned on September 9, 2003, and Dr. Schultz took biopsies from her right wrist and an area below her left eyebrow which respectively showed seborrteic keratosis and actinic keratosis. Dr. Schultz took photos of Dunn's face that day.

The patient returned on October 28, 2003, and Dr. Schultz found multiple AKs on Dunn's nose which he treated, along with the rest of Dunn's face, with glycolic acid, and then prescribed nighttime pads. Dr. Schultz testified that because he, rather than Dunn, was the one who pointed out the condition to the patient, there was no charge for that treatment. Id 78-79 Dr. Schultz could not say whether there were observable lesions on Dunn's nose before 10/28/03, or whether those same lesions he saw on 10/28/03 had been present before. Id pp 81-86 When asked if the AK lesions present on Dunn's face on October 28 could have been present in 1999 when Dr. Schultz noted AKs of the face, he replied that it was "[u]nlikely" due to "a period of years during which one would expect those lesions if not destroyed by the treatment we did would have progressed." Id 84-85 Dr. Schultz testified that he did not biopsy the AKs on October 28 because they did not meet his criteria to biopsy. Id 87

The patient returned on November 5, 2003 and glycolic acid was applied to the face for AK. Nighttime pads were also prescribed. Dr. Schultz did not know whether the same nose lesions were still there. Id 88-89 The patient returned on December 9, 2003 and was treated with glycolic acid to destroy AKs on her face and arms. Nighttime pads were prescribed. Dr. Schultz testified that they could have been AKs on the nose. Id 91 Dunn returned on February 6, 2004 at which time a total body exam was preformed. Dr. Schultz noted something on the left tip of Dunn's nose that he did not believe warranted a biopsy. Glycolic acid was applied to Dunn's face and hands. Dr. Schultz testified that if he had seen AKs on the tip of Dunn's nose he would not necessarily have so indicated it in his chart. Id 96

The next visit was on April 23, 2004. According to Dunn, she periodically brought areas of concern to Dr. Schultz' attention (EBT 96) and about a year and a half to two years before that date she complained to Dr. Schultz about a conspicuous spot on the side of her nose that was flaking, raw, never smooth, was an eruption, would never heal and made her look funny (Id 99-104, 112, 114). Dr. Schultz allegedly told her when she complained initially that it was nothing to worry about (Id 100, 107). Dr. Schultz allegedly told Dunn to use the pads for her nose (Id 151). Dunn testified that, except on one occasion, Dr. Schultz when applying glycolic acid to her face would include her nose. Id 113 Dunn testified that after that initial complaint the area on her nose that she had previously pointed out to Dr. Schultz got worse and was growing down the side of her nose. Id 120 Although she was concerned, she felt it was "okay because he said it was okay." IbidThen she went to Dr. Schultz on April 23, 2004 because her daughter was getting married, and her nose was getting worse, and Dunn told Dr. Schultz that she had "to get [*4]this off before the wedding and he said okay." Id 121 Dunn testified that on April 23 there were then two spots on the side of her nose. Id 104 Dr. Schultz then biopsied her nose. Id 122

According to Dr. Schultz on April 23, 2004 there were four spots on Dunn's nose that looked suspicious. Schultz' EBT p. 100 These areas which were on the top of the bridge, the left side of the nose, the left tip of the nose and the middle right of the nose were biopsied that day. Dr. Schultz took the position that at the visit of February 6, 2004, the area of the top of the nose and on the mid-right of the nose did not require intervention. Id 102 As a result of the April 23 biopsies squamous cell carcinoma was found in all four areas. Dr. Schultz could not state when the AK of these four areas began or when they evolved into cancer. Id 107-108 The areas which were biopsied on April 23 were then re-excised on April 29 and the cancer was found to be still present and superficially invasive in the areas of the top of the nose and on the left side.

Dr. Schultz had no recollection of Dunn having complained before October 28, 2003 about areas of her nose (Id 117), but would not necessarily have documented any complaint unless it had been repeated or there were findings which warranted documentation. Id 116 Dunn returned to Dr. Schultz' office on May 4, 2004, and he discussed "various options for further treatment, including carbon dioxide laser treatments." (Id 111) This was Dunn's last visit to Dr. Schultz.

Dunn thereafter saw a Dr. Michael Albom who recommended Mohs surgery to treat any remaining residual underlying disease to avoid recurrence and metastasis. Dr. Albom indicated in a June 15, 2004 fax to Dr. Schultz that it was not possible to exclude the possibility of underlying squamous cell carcinoma within the superficial dermis of Dunn's nose. In a letter to Dr. Schultz dated August 13, 2004 Dr. Albom indicated that two dermopathologists had reviewed the biopsy specimens and that in three of them invasive carcinoma could not be excluded. Because of that and because the lesions "were almost confluent," Dr. Albom "chose to remove the entire zone of disease." See aff in opp., Exh. C

Dr. Schultz now seeks dismissal of the first cause of action, relying, inter alia, on the affidavit of Dr. Robert Auerbach, a dermatologist, and Dr. Schultz' deposition testimony. Dr. Auerbach asserts that there was no delay in diagnosing and treating squamous cell carcinoma of the nose and that therefore Dunn sustained no injury to her nose as a result of malpractice Dr. Auerbach further maintains that Dr. Schultz' recommendation for treatment of the nasal carcinoma via carbon dioxide laser treatment was an appropriate alternative to Mohs surgery, so that any additional scarring or the need for cosmetic surgery as a result of the Mohs surgery could not be attributed to Dr. Schultz. Dr. Auerbach observes that "[i]n general" only between 1-2% of AK develops into squamous cell carcinoma. Aff ¶ 5 He thus asserts that the standard of care does not require a biopsy "wherever a possible actinic keratosis is observed" because this would lead to a massive number of unnecessary and improper biopsies." Id 14

Dr. Auerbach maintains in essence that because Dr. Schultz testified that a photograph of February 26, 2003, which evidently only revealed the right side of Dunn's nose (See Schultz EBT pp 67-68; aff in opp, Exh. G), showed two tan spots on Dunn's nose which Dr. Schultz asserted represented sunspots, Dr. Schultz' treatment that day was appropriate. Dr. Auerbach further notes that Dunn, according to Dr. Schultz' chart, presented on June 23, 2003 with multiple AKs of the face and that a photo taken that day [which only shows the top part of Dunn's nose (See aff [*5]opp Exh. G)] showed flat discoloration of the upper left part of the nose, which Dr. Schultz testified was not indicative of AK or carcinoma. Dr. Schultz testified however that the AKs of the face he saw that day could have included the nose. Schultz EBT p. 71 He also testified that the discolorations shown in the photo if pink could have been pre-AKs. Id 72-73 Based on the photo of part of Dunn's nose and Dr. Schultz interpretation of the photo, Dr. Auerbach testified that no biopsy was needed at that time.

Dr. Auerbach observed that the first time Schultz' chart specifically documented AKs on the nose was on October 28, 2003 when he noted multiple AKs of the nose. Dr. Auerbach noted that it was not the standard of care to biopsy "possible" AK and that as Dr. Schultz testified he would make a decision to perform a biopsy based on whether there was a palpable component and based on his 25 years of experience. Dr. Auerbach observed that Dr. Schultz treated multiple AKs of the face with glycolic acid on December 9, 2003 and then stated in an ipse dixit manner that when the patient returned on February 6, 2004 with a lesion on the tip of her nose and above her eyebrow, the decision not to biopsy the nose was appropriate.

In response Dunn offers inter alia the parties' deposition transcripts, the medical chart and the redacted ^[FN1] affidavit of her expert. Dunn's expert opines that between 2002 and April 2004 Dr. Schultz was negligent in failing to biopsy and timely diagnose and treat squamous cell carcinoma, thereby causing it to spread and requiring more extensive and cosmetically deforming surgery. Dunn's expert bases his conclusions on Dunn's testimony that a year and a half to two years before the cancer was diagnosed Dunn complained about a rough, scaly, flaking, lesion which would not heal, which Dr. Schultz did not biopsy until April 2004. He also bases his conclusion on a September 9, 2003 photo which the expert states showed red lesions which "appear[ed] to be [AKs] suspicious for cancer and which should have been biopsied, particularly in light of Dunn's prior history of skin cancer. Dunn's expert asserts that this area when biopsied in April 2004 "turned out to be invasive squamous cell carcinoma." Dunn's expert asserts that this cancer was in all probability present in 2003 and for a period of time prior thereto." The expert maintains that this area should have been biopsied when Dunn first complained to Dr. Schultz or that Dr. Schultz should have given Dunn the option to have the area biopsied. The expert opines that there was a one and a half to two year delay in diagnosis and treatment of this cancer.

Following a review of all of the papers I find that there are issues of fact as to when the lesions were first present, when they should have been biopsied and whether the failure to biopsy and treat earlier caused injury to Dunn. First, Dr. Schultz as the movant, who has the burden of prima facie establishing his entitlement to summary judgment, has failed to establish that he was not treating AKs of Dunn's nose before 2003 since his chart has numerous references to his treating AKs of the face in 1999, 2000, 2001, 2002 and 2003, and Dr. Schultz testified that face could include the nose. Second, while Dr. Auerbach testified that in general 1-2% of AKs turn cancerous, Dunn, who was fair-skinned, had a history of hers turning cancerous. Indeed before the cancer on her nose was diagnosed in April 2004, she was found beginning on May 2000 to have had squamous cell carcinoma arising in AK about 5 times. Also while it is not entirely clear how long the problem with Dunn's nose existed so as to require action by Dr. Schultz, there [*6]is sufficient evidence on this record to warrant denial of his application to dismiss the first cause of action. Specifically Dr. Schultz' own testimony suggests that it takes significant time for AKs to progress. See Schultz EBT pp 17, 84-85 This supports Dunn's testimony that 1½ to 2 years before the cancer on her nose was diagnosed she showed Dr. Schultz a conspicuous spot on the side of her nose that was flaking, raw, never smooth, was an eruption, would never heal and made her look funny (Dunn EBT pp 99-104, 112, 114) and that such condition worsened over time and grew down the side of her nose (Id 120-121) and that eventually there were two spots on the side of her nose (Id 104). Dr. Schultz testified that among the criteria he used to decide when to biopsy an area were palpability, crustiness, erosions, bleeding, scaliness and roughness. Schultz EBT pp27, 31, 32, 39, 40, 41, 46, 104-105

In light of the foregoing there are issues as to whether Dr. Schultz timely biopsied Dunn's nose and whether there was a delay which caused injury to Dunn. While defense counsel asserts that plaintiff's expert has failed to establish causation by not specifically indicating that if a biopsy were taken for example, on September 9, 2003, revealing cancer, the ultimate outcome would have been different, it is Dr. Schultz who in the first instance has the burden of establishing a lack of causation. Dr. Auerbach, his expert, does not address causation except in bald, conclusory terms. See Auerbach aff ¶ 4 Dr. Auerbach's affidavit was focused on the lack of departures from good and accepted practice and his assertion that carbon dioxide laser treatments were an appropriate and less invasive alternative to Mohs surgery once the cancer was diagnosed in April 2004. He did not opine that had the cancer been diagnosed before April 2004 the injury or outcome would have been the same.

In conclusion the motion is granted solely to the extent of dismissing the lack of informed, consent cause of action (the second cause of action) but is otherwise denied.

Settle order.

Dated:September 17, 2008

60 Centre Street

New York, NY

J.S.C.