Recitation per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and after considering oral argument on April 8, 2025, pursuant to CPLR § 3212(b), the joint motion of Defendants Steven Inker, M.D. ("Dr. Inker") and KJMC (collectively with Dr. Inker, "Defendants") for summary judgment is DENIED for the reasons set forth below.

This is a medical malpractice action in which Plaintiff alleges, inter alia, that on October [*2]16, 2018, during an examination at KJMC's eye clinic,^[FN1] neuro-ophthalmologist Dr. Inker misdiagnosed her right-sided sphenoid wing meningioma (the "tumor")^[FN2] as anterior ischemic optic neuropathy ("AION").^[FN3] Plaintiff further alleges that KJMC is vicariously liable not only for Dr. Inker's alleged malpractice but also for that of non-moving Defendant Dr. Bruce G. Campbell, a radiologist who, on September 26, 2018, misinterpreted non-contrast CT scans taken in KJMC's emergency department, failing to detect the tumor.^[FN4]

Plaintiff claims that due to Defendants' alleged negligence—both primary (Drs. Inker and Campbell) and vicarious (KJMC)—her tumor went undiagnosed and untreated until July 21, 2020 (20 months later), when a contrast-enhanced MRI revealed the tumor.^[FN5] The tumor was surgically resected on September 22, 2020 (an additional two months later).^[FN6] Plaintiff alleges [*3]that the delay in diagnosis resulted in irreversible vision loss in her right eye.^[FN7]

During discovery, Dr. Campbell admitted in deposition that he missed a possible meningioma when interpreting the September 2018 CT scans.^[FN8] He further testified that at the relevant time, he was employed by Envision Physician Services, which had contracted with KJMC to provide radiology services.^[FN9]

Following the close of discovery and the filing of the note of issue,^[FN10] Defendants moved for summary judgment dismissing all claims against them.

Defendants established prima facie entitlement to summary judgment through expert affirmations from Dr. Geoffrey Basson (neuro-ophthalmology and nephrology) and Dr. Craig Sherman (neuroradiology).^[FN11] Dr. Basson opined, to a reasonable degree of medical certainty, that Dr. Inker's diagnosis and treatment on October 16, 2018, met the applicable standard of care and were not causally connected to Plaintiff's injuries.^[FN12] Dr. Sherman opined that Dr. Campbell's erroneous report misled Dr. Inker and thus reasonably influenced the differential diagnosis; more specifically that Dr. Campbell's "failure...to detect and report the abnormalities seen on the CT [s]cans...had the effect of misleading Dr. Inker" because "any physician being advised that the CT [s]cans were negative [when, in Dr. Sherman's opinion, they were diagnostic for a tumor] [*4]would not include a tumor as part of their differential diagnosis when working up the patient."^[FN13] See Peynado v Woodhull Med. & Mental Health Ctr., — AD3d —, 2025 NY Slip Op, *2 (2d Dept. 2025) ("The defendants' expert opined that the defendants did not deviate from accepted medical practice in the treatment and care of the plaintiff and that any deviation was not a proximate cause of the plaintiff's injuries."); Chillious v Edouard, 234 AD3d 737, 739-740 (2d Dept. 2025) (defendants met their burden with expert medical opinion showing no deviation or causation); Hanna v Staten Is. Univ. Hosp., 232 AD3d 585, 586 (2d Dept. 2024) (expert opinion established adherence to standard of care and absence of proximate cause).

In opposition, Plaintiff submitted an expert affirmation from a neuro-ophthalmologist, raising triable issues of fact as to whether: (1) Dr. Inker departed from the standard of care by failing to accurately and completely examine Plaintiff's optic nerves, to observe the presence of "proptosis"^[FN14] on gross examination of her eyes, to review the CT scan reports, and to include a meningioma or other tumor as part of his differential diagnosis for Plaintiff; and (2) Dr. Inker's failure to diagnose Plaintiff's tumor in October 2018 proximately resulted in further injury and damage to her right optic nerve.^[FN15] Notably, the record reflects that Dr. Inker did not review the CT scan reports, undermining the defense claim that he was misled by Dr. Campbell's interpretation.^[FN16] Plaintiff's radiology expert also challenged the plausibility of Dr. Inker's clinical finding of no proptosis, given that the CT scan from three weeks earlier (September 26, 2018) showed proptosis.^[FN17]

Where expert opinions conflict, the matter presents issues of credibility and fact for jury determination. Armond v Strangio, 227 AD3d 758, 760 (2d Dept. 2024). Further, "[w]hether a diagnostic delay affected a patient's prognosis is typically an issue that should be presented to a jury.^[FN18] " Neyman v Doshi Diagnostic Imaging Servs., P.C., 153 AD3d 538, 546 (2d Dept. 2017) [*5](internal quotation marks omitted).

Accordingly, the branch of Defendants' motion seeking summary judgment as to the claims against Dr. Inker and, vicariously, against KJMC is denied.

Although KJMC submitted evidence that Dr. Campbell was not its employee but rather an independent contractor employed by Envision Physician Services, Plaintiff raised triable issues of fact as to apparent or ostensible agency.

In general, "a hospital may not be held for the acts of [a physician] who was not an employee of the hospital, but one of a group of independent contractors." Hill v St. Clare's Hosp., 67 NY2d 72, 79 (1986). However, a hospital may be held vicariously liable for the malpractice of an independent physician if the patient reasonably believed the physician was provided by or acting on behalf of the hospital. Id.; see also, Dragotta v Southampton Hosp., 39 AD3d 697, 698 (2d Dept. 2007). As the Second Judicial Department explained in Dragotta:

"There are two elements to such a claim of apparent or ostensible agency. To establish the 'holding out' element, the misleading words or conduct must be attributable to the principal. To establish the 'reliance' element, the third party must accept the agent's services and submit to the agent's care in reliance on the belief that the agent was an employee of the principal. In the context of a medical malpractice action, the patient must have reasonably believed that the physicians treating him or her were provided by the hospital or acted on the hospital's behalf."

Here, KJMC established prima facie entitlement to judgment as a matter of law (as to Dr. Campbell) by presenting evidence that Dr. Campbell was not its employee, but rather was part of an independent group of radiologists.^[FN19] See Dragotta, 39 AD3d at 699. Plaintiff presented to KJMC's emergency department at the instruction of her ophthalmologist, Dr. Johnson. The CT scans were ordered by KJMC emergency physicians Drs. McPherson and Wojciula-Tomaszewski.^[FN20] Dr. McPherson documented Plaintiff's history, performed the exam, and [*6]discharged her with follow-up instructions.^[FN21] Dr. Campbell's radiology report appeared on KJMC letterhead, without indicating his independent status.^[FN22] Plaintiff testified that she was unaware of Dr. Campbell's identity,^[FN23] and Dr. Johnson testified that he spoke to a KJMC physician, likely Dr. McPherson, about the scan results.^[FN24] See Sampson v Contillo, 55 AD3d 588, 591 (2d Dept. 2008) (" . . . triable issue of fact as to whether the Hospital may be vicariously liable for [the radiologist's] alleged malpractice and negligence under a theory of apparent or ostensible agency"); Dragotta, 39 AD3d at 699 ("None of the [defendant] Hospital's patients, including the [plaintiff's] decedent, were ever informed that the anesthesiologists were not employed by the Hospital.").

Therefore, the branch of the motion seeking dismissal of claims against KJMC arising from Dr. Campbell's conduct is also denied.

Finally, given the prior discontinuance of Plaintiff's claims against Dr. Kenneth Felder,^[FN25] the caption is amended to read as follows:

This constitutes the Decision and Order of the Court.