The following e-filed papers read herein:/NYSCEF No.:

In this consolidated action to recover damages for medical malpractice, negligent hiring/supervision, and lack of informed consent, the following motions have been joined for disposition. Defendant Richard L. Stapen, M.D. (Dr. Stapen), moves in Seq. No. 10 for an order, pursuant to CPLR 3212, granting him summary judgment dismissing the consolidated complaint as against him. Defendant Project Renewal, Inc. (PRI), moves in Seq. No. 12 for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the consolidated complaint as against it. Defendant Sandhya Nayak, M.D. (Dr. Nayak), moves in Seq. No. 9, as amended in Seq. No. 11, for an order (1) pursuant to CPLR 3212, granting her summary judgment dismissing [*2]the consolidated complaint as against her, and (2) pursuant to CPLR 214-a, dismissing those claims as against her that are time-barred. Although plaintiff Mishelle Furze (plaintiff) opposes Dr. Stapen's and PRI's respective motions, as well as the summary judgment branch of Dr. Nayak's original and amended motions, she does not oppose the remaining branch of Dr. Nayak's amended motion which is for dismissal of the portion of those claims as against her that are time-barred under CPLR 214-a. Nonmoving defendants First Medcare, Inc. (Medcare), and Jorge R. Orellana, M.D. (Dr. Orellana), jointly oppose the summary judgment branch of Dr. Nayak's original and amended motions.

On Jan. 23, 2013,^[FN1] plaintiff, then 46 years old, underwent a screening mammogram at a mobile mammography van operated by defendant PRI. Although plaintiff's family history was significant for breast cancer in her paternal aunt, the same was not reflected either in the Medical History Form^[FN2] or in the Clinical Breast Exam (CBE) form.^[FN3] The CBE found "[n]o mass . . . bilaterally." The CBE was followed by a mammogram performed in the PRI van. PRI's mammogram had two limitations. First, the mammogram image was in the analog format, which precluded the interpreting radiologist from enhancing it (e.g., by enlarging it or by making it either lighter or darker).^[FN4] Second, "no magnification paddle, support, or cassette holder [were] used for patient exams."^[FN5] To exculpate itself from those limitations, PRI had plaintiff sign a Medical Director Statement acknowledging that: (1) "a negative . . . mammography report does not preclude the presence of a breast cancer"; (2) "mammograms are an effective early detection tool only if the patient is examined on a regularly scheduled basis"; and (3) "mammography and regular breast exams performed by a health professional are your best protection."^[FN6]

On Jan. 31st, defendant Dr. Stapen, a diagnostic radiologist retained by PRI to interpret mammography images, reported in writing to Dr. Orellana, plaintiff's primary care physician at [*3]Medcare,^[FN7] that the result of plaintiff's mammogram was "BI-RAD[S] Level 1: Normal — Routine Recall Advised."^[FN8] Dr. Stapen's report stated, in relevant part:

"Dense breasts study; difficult interpretation. Breast ultrasound may be obtained for a more definitive evaluation. Routine annual mammographic evaluation advised."^[FN9]

Dr. Stapen explained that the composition of plaintiff's breasts, which he described in his deposition testimony either as "dense" or as "extremely dense," made it hard for him to see, without magnification which he did not (or could not) perform,^[FN10] whether one or both of them contained a mass.^[FN11] Nevertheless, Dr. Stapen categorized the results of plaintiff's mammogram as BI-RADS one — normal or negative for the presence of a mass in either breast — rather than as BI-RADS two — a benign finding of a calcification.^[FN12] Since Dr. Stapen considered the mammography images to be adequate,^[FN13] he did not categorize plaintiff's mammogram as zero, which (if so categorized) would have required a repeat mammogram. In that regard, Dr. Orellana, testified that, as a matter of practice, he would send a patient for a second opinion when her mammogram was categorized as BI-RADS zero.^[FN14]

On Feb. 6th, Dr. Orellana reviewed Dr. Stapen's report by initialing it.^[FN15] As Dr. Orellana explained at his deposition, BI-RADS category one, as reported in Dr. Stapen's report, assured [*4]him (Dr. Orellana) that there was no reason for a further investigation.^[FN16] Between Apr. 3rd and Sept. 9th, plaintiff saw Dr. Orellana for health complaints unrelated to her breasts.^[FN17] At no time during any of those visits, did Dr. Orellana examine plaintiff's breasts.

On Apr. 29th and again on May 19th, plaintiff saw defendant Dr. Nayak, her gynecologist at Medcare, for a pap smear/pelvic examination and for a pelvic sonogram, respectively. At neither of those visits did Dr. Nayak examine plaintiff's breasts. Rather, she deferred to Dr. Orellana for breast examination and mammogram because, as she frankly conceded in her pretrial testimony, "what is the point in repeating [them] when . . . insurance[ ] [doesn't] pay you for that?" Dr. Nayak deposition tr at page 97, line 24 to page 98, line 7. Dr. Nayak further explained that in her private practice she took the initiative of asking her patients whether (and, if so, when) they had breast examinations and mammograms. Dr. Nayak deposition tr at page 101, lines 2-4. As a salaried contractor at Medcare, however, her role, as she understood it, was "just to do a Pap smear and a sonogram." Dr. Nayak deposition tr at page 101, lines 4-6; page 16, line 17 to page 17, line 14.

At plaintiff's next visit to Dr. Orellana on Nov. 12th, he did examine her breasts, finding a hard, irregular, tender mass of ten centimeters in diameter in her left breast.^[FN18] A left breast sonogram, performed at Dr. Orellana's request on Nov. 13th at Doshi Diagnostic, revealed two solid nodules and two complex cysts in plaintiff's left breast, with those findings being classified as BI-RADS category three or "probably benign."^[FN19] At plaintiff's follow-up visit with Dr. Orellana on Nov. 21st, he again noted an irregular, tender mass of ten centimeters in diameter in her left breast.^[FN20] On the same day, Dr. Orellana referred plaintiff to nonparty Albert Duncan, M.D. (Dr. Duncan), for surgical evaluation.^[FN21]

On Dec. 10th, plaintiff underwent a removal of the left breast lesion by Dr. Duncan at SUNY-Downstate. At that time, a large 5 x 5 centimeter mass was removed and found to be "invasive lobular carcinoma, extensive."^[FN22]

On Jan. 13, 2014, Dr. Duncan admitted to SUNY-Downstate for a left breast modified radical mastectomy with a sentinel node biopsy. During surgery, an invasive lobular carcinoma [*5]of 12.5 centimeter in length was removed from plaintiff's left breast, and eight of the ten left axillary lymph nodes tested positive for carcinoma.^[FN23] She was discharged home the following day. Plaintiff's subsequent course of treatment is not at issue at this stage of litigation.

Plaintiff commenced an action against Dr. Stapen and PRI under index No. 504959/14, and a separate action against Medcare, Dr. Orellana, and Dr. Nayak under index No. 503464/15, on May 30, 2014 and Mar. 25, 2015, respectively. By order, dated Feb. 13, 2016, the two actions were consolidated under index No. 503464/15. Plaintiff alleged as to each defendant claims sounding in medical malpractice, negligent hiring/supervision, and lack of informed consent. Defendants separately joined issue. After discovery was completed and a Note of Issue was filed, Dr. Stapen, PRI, and Dr. Nayak (collectively, the moving defendants) served the instant motions. The Court heard oral argument on the instant motions on Sept. 6, 2019 and reserved decision.

Based on plaintiff's deposition testimony and the expert affirmations adopted by her which are silent on the question of negligent hiring/supervision and informed consent, the Court finds that she failed to raise an issue of fact as to those theories. See e.g. DeJesus v. DeJesus, 132 AD3d 721, 18 N.Y.S.3d 103 (2d Dept., 2015); Dunlop v. Sivaraman, 272 AD2d 570, 709 N.Y.S.2d 419 (2d Dept., 2000).

Remaining before the Court is the viability of plaintiff's medical malpractice claim as against the moving defendants. According to plaintiff's bills of particulars, her medical malpractice claim accrued on Jan. 23, 2013 (the date of the mammogram) as against Dr. Stapen and PRI, and on Sept. 26, 2012 as against Dr. Nayak (even though, as noted, plaintiff saw Dr. Nayak on Apr. 29, 2013 and May 19, 2013 only).^[FN24]

As framed by her pleadings and the affirmation of her expert radiologist, plaintiff's medical malpractice theory of liability as against Dr. Stapen is that he departed from the accepted standard of radiological practice:

"[1] by stating that the January 23, 2013 films [or images] were sufficient when in fact they were unreadable, [2] in failing to ensure that a digital scan was taken which was the standard of care at that time, [3] in categorizing his findings as BI-RADS 1 - Normal instead of BI-RADS 0 requiring a repeat scan, [4] in failing to obtain the prior films [or images] for comparison and [5] in failing to unequivocally recommend a sonogram."^[FN25]

Plaintiff's medical malpractice claim against PRI is two-fold: first, vicarious liability for [*6]Dr. Stapen's alleged negligence, and second, direct liability for providing an analog, rather than a digital, scanner for the mammography van.^[FN26]

There are triable issues of material fact as to: (1) whether the Jan. 23rd mammography films/images were inadequate for a radiological interpretation, and (2) whether Dr. Stapen improperly categorized the Jan. 23rd mammography as BI-RADS one (normal) instead of BI-RADS zero (incomplete) (collectively, the surviving portions of the medical malpractice claim).^[FN27] Further, there are triable issues of fact whether the aforementioned departures, either individually or collectively, caused a delay in the ultimate diagnosis of plaintiff's left breast cancer. PRI's liability, if any, to plaintiff is purely vicarious, as it is dependent on a finding of negligence as against Dr. Stapen with respect to either or both of the surviving portions of the medical malpractice claim.

Plaintiff's remaining arguments in support of her medical malpractice claim as against Dr. Stapen and PRI are without merit. Contrary to the contention of her expert radiologist (in ¶ 5 of his/her affirmation), the use of an analog scanner in the mammography van was not outdated and, in fact, comported with the applicable standard of care for the type of mammography screening that the van was designed to provide. PRI demonstrated, with no contradiction from plaintiff, that the scanner (1) passed the quality control testing by an independent medical physics consultant, (2) complied with the applicable requirements of the U.S. Department of Health & Human Services, and (3) received accreditation from the American College of Radiology (NYSCEF No.#279, 280, and 281, respectively).^[FN28]

Plaintiff's contentions that Dr. Stapen should have obtained the prior films/images for [*7]comparison and, moreover, should have unequivocally recommended a sonogram, overlook the limited nature of the legal obligations of PRI and its radiologist. Dr. Stapen was not plaintiff's treating physician. Rather, Dr. Stapen had the limited role of interpreting mammography films/images and documenting his findings. Neither PRI nor Dr. Stapen assumed a general duty of care to obtain prior films/images from plaintiff or to urge her to undergo further testing. See Mosezhnik v. Berenstein, 33 AD3d 895, 823 N.Y.S.2d 459 (2d Dept., 2006).

The contentions of Dr. Stapen's radiologist, Gail Phillips, M.D. (Dr. Phillips), need only be briefly addressed. In Dr. Phillips's opinion (in ¶ 14 of her affirmation), "had the sonogram been done right after the January 23, 2013 mammogram Dr. Stapen interpreted, the sonogram most likely would have then been interpreted as normal as well[,] given that it was interpreted to be likely benign even ten months later," (i.e., referring to the Nov. 13th sonogram which revealed two solid nodules and two complex cysts classified as BI-RADS category three or "probably benign"). What Dr. Phillips fails to mention, however, is that in light of the BI-RADS category three finding on the Nov. 13th sonogram, Dr. Orellana immediately referred plaintiff to a breast surgeon for evaluation. Hence, Dr. Stapen's earlier recommendation to Dr. Orellana to have a sonogram performed in connection with the Jan. 23rd mammogram was appropriate. Dr. Stapen is not responsible for Dr. Orellana's unilateral determination not to follow that recommendation.

Likewise speculative and attenuated is Dr. Phillips's contention (in ¶ 17 of her affirmation) that "had Dr. Stapen received the [prior] mammogram films [or images] for comparison to the January 2013 one he interpreted, there is no change from the [prior] one to the January 2013 one." Crediting the opinion of plaintiff's expert radiologist, however, the Court notes that the January 2013 mammogram was unreadable and thus could not have been meaningfully compared with the prior mammogram.

Contrary to the contentions of Dr. Stapen and PRI, the opinion of plaintiff's expert radiologist (in ¶ 15 of his/her affirmation) that the surviving portions of the medical malpractice claim "caused a significant delay in the ultimate diagnosis of plaintiff's breast cancer causing [, in turn,] the need for [her] to undergo a left breast mastectomy, radiation," and other treatment, is sufficient, at this stage of litigation, to raise a triable issue of fact. See Jump v Facelle, 275 AD2d 345, 712 N.Y.S.2d 162 (2d Dept., 2000) (a plaintiff's expert need not "quantify the exact extent to which a particular act or omission decreased a patient's chances of . . . cure"), lv. dismissed 95 NY2d 931, 721 N.Y.S.2d 607 (2000), lv. denied 98 NY2d 612, 749 N.Y.S.2d 3 (2002). See also Neyman v. Doshi Diagnostic Imaging Servs., P.C., 153 AD3d 538, 59 N.Y.S.3d 456 (2d Dept., 2017); Barbuto v. Winthrop Univ. Hosp., 305 AD2d 623, 760 N.Y.S.2d 199 (2d Dept., 2003).

Dr. Nayak contends the following: (1) she worked at First Medcare two half-days a month, and "mostly did pap smears and pelvic exams," and (2) she did not perform breasts exams, refer plaintiff for mammograms, review mammography reports, or follow up on mammograms because that care was managed by Dr. Orellana.^[FN29] It is well established that [*8]"[a]lthough physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient." Chulla v. DiStefano, 242 AD2d 657, 662 N.Y.S.2d 570 (2d Dept., 1997). Viewing the evidence in a light most favorable to plaintiff as non-movant, Dr. Nayak failed to establish prima facie that (1) plaintiff had been referred to her by Dr. Orellana for pelvic examination and care only; and (2) plaintiff had relied solely on Dr. Orellana to perform breast examinations.^[FN30] In fact, Dr. Orellana did not examine plaintiff's breasts until her Nov. 12th visit to him. See Dr. Orellana deposition tr at page 108, lines 21-23. As Dr. Orellana and Medcare correctly point out in their joint opposition to Dr. Nayak's motion, the record presents a triable issue of fact as to whose responsibility it was (whether that of Dr. Orellana or that of Dr. Nayak) to examine plaintiff's breasts.^[FN31]

Accordingly, based on the foregoing and after oral argument, it is

ORDERED that Dr. Stapen's motion in Seq. No. 10 and PRI's motion in Seq. No. 12 are granted to the extent that (1) plaintiff's medical malpractice claim, with the exception of the surviving portions of that claim as set forth more fully below, is dismissed as against each of them; and (2) plaintiff's negligent hiring/supervision and lack of informed consent claims are dismissed as against each of them without opposition; and the remainder of their respective motions is denied; and it is further

ORDERED that, for the avoidance of doubt, this action will proceed as against [*9]Dr. Stapen and PRI solely on the surviving portions of plaintiff's medical malpractice claim as against them; namely: (1) whether the January 23, 2013 mammography films/images were inadequate for a radiological interpretation; (2) whether Dr. Stapen's improperly categorized the January 23, 2013 mammography as BI-RADS one (normal) instead of BI-RADS zero (incomplete); and (3) whether these alleged departures from the accepted standard of radiological practice, either individually or collectively, proximately caused her injuries; and it is further

ORDERED that Dr. Nayak's original motion in Seq. No. 9 is denied as academic, having been superseded by her amended motion in Seq. No. 11; and it is further

ORDERED that the branch of Dr. Nayak's amended motion in Seq. No. 11 which is for summary judgment dismissing plaintiff's medical malpractice claim as against her is granted to the extent that (1) plaintiff's medical malpractice claim, with the exception of the surviving portions of that claim as set forth more fully below, is dismissed as against her; (2) plaintiff's medical malpractice claim to the extent it is time-barred is dismissed as against her without opposition; and (3) plaintiff's negligent hiring/supervision and lack of informed consent claims are dismissed as against her without opposition; and the remainder of Dr. Nayak's amended motion is denied; and it is further

ORDERED that, for the avoidance of doubt, this action will proceed as against Dr. Nayak solely on the surviving portions of plaintiff's medical malpractice claim as against her; namely: (1) whether Dr. Nayak was under a duty to examine plaintiff's breasts at either the Apr. 29, 2013 visit or the May 19, 2013 visit, or both; and (2) if so, whether Dr. Nayak's failure to examine plaintiff's breasts at those visits constituted a departure from the accepted standard of gynecological practice and proximately caused her injuries; and it is further

ORDERED that plaintiff's counsel shall electronically serve a copy of this Decision and Order with notice of entry on the respective counsel to Dr. Stapen, PRI, Dr. Orellana, Medcare, and Dr. Nayak, and shall electronically file an affidavit of said service with the Kings County Clerk.

This constitutes the Decision and Order of the Court.