Opinion
01-CV-1198 (ILG).
April 28, 2006
Danielle George, The Jacob D. Fuchsberg Law Firm New York, Counsel for the Plaintiff.
Kathleen Anne Mahoney, United States Attorneys Office, Eastern District of New York, One Pierrepont Plaza, Brooklyn, NY, Russell T. McHugh, Law Office of Russell T. McHugh, P.C. Garden City, NY, Counsel for the Defendant.
MEMORANDUM AND ORDER
INTRODUCTION
On this motion, Plaintiff Antoinette Hutchinson ("Plaintiff"), administratrix of her mother Freda T. Lewis's estate, seeks summary judgment against Brownsville Community Development Corporation d/b/a Brownsville Multi-Service Family Health Center ("BMS"), Fanell Alerte, ("Alerte"), Sandra Gumbs, ("Gumbs"), and the United States (collectively "Defendants") on the issue of liability for medical malpractice in failing to diagnose her mother's ovarian cancer during the time period subsequent to October 1, 1996. Effective October 1, 1996, BMS and BMS employees Gumbs and Alerte are indemnified by the government as federal employees pursuant to the Federally Supported Health Centers Assistance Act of 1992, 42 U.S.C. § 233(g), and under the Federal Tort Claims Act, 28 U.S.C. §§ 2671- 2680. (See Mahoney Decl., Ex. B (deeming letter)). Consequently, the United States is substituted for those defendants as of October 1, 1996. See 28 U.S.C. § 2679(d)(1).
PROCEDURAL HISTORY
On or about December 23, 1998, Lewis commenced an action in New York State Supreme Court against, among others, BMS, Alerte and Gumbs. The United States was substituted for BMS, Alerte and Gumbs with respect to their conduct on or after October 1, 1996, and the government removed the action to this court before Judge Dearie in civil action no. 99-CV-6522. By Stipulation and Order dated June 29, 2000, that case was voluntarily dismissed without prejudice because no administrative tort claim against the United States had been filed as required by the Federal Torts Claims Act, 28 U.S.C. § 2675(a). The remaining case was remanded to state court.
On July 28, 2000, Plaintiff filed an administrative tort claim (SF-95) with the Department of Health and Human Services, seeking $1,500,000 in damages for personal injuries sustained by Lewis and $1,000,000 for wrongful death.
No action having been taken upon the administrative claim within six months, on February 28, 2001, Plaintiff filed this action alleging that Defendants' malpractice commenced on May 23, 1996. An amended complaint was served on July 22, 2002 naming additional defendants not subject to this motion and alleging that the negligence and medical malpractice by all defendants began in October 1994.
By Memorandum and Order dated February 20, 2004, this Court denied the motion to dismiss filed by BMS and Gumbs with respect to the period prior to October 1, 1996. Hutchinson v. United States, 2004 WL 350576 (E.D.N.Y. 2004). BMS and Gumbs filed their Answer and cross-claims on March 8, 2004. Alerte filed his Answer and cross-claims on March 23, 2004 and an Amended Answer and cross-claims on April 9, 2004.
STATEMENT OF FACTS
I. Lewis's Medical History
Freda Lewis, decedent, was a patient at BMS. On January 25, 1994, she went to BMS Ob-Gyn clinic for a gynecological exam, and presented as a post-menopausal woman with three weeks of vaginal spotting. At this visit she was seen by Gumbs, who was a physician's assistant supervised by Alerte. (56.1, ¶ 10). Subsequent to the January 25, 1994 visit, a pelvic sonogram was performed on August 4, 1994 and found to be normal without any ovarian abnormalities. (56.1, ¶ 11). On October 27, 1994, Alerte performed a Dilation and Curettage ("DC") on Lewis at St. Mary's Hospital. The diagnosis was atypical simple glandular and stromal hyperplasia and there was no evidence of malignancy. (Caputo Decl., Ex. C ("ST. MARY'S,") 254-255).
Almost a year later, after visiting the St. Mary's emergency room for vaginal bleeding on October 19, 1995, Lewis returned to the BMS Ob-Gyn clinic for follow-up treatment and was seen by Alerte on October 20, 1995. She was advised to have another DC, which was scheduled to be performed at St. Mary's. There is no operative report for that procedure, and it was apparently cancelled for an unknown reason on the day it was scheduled to occur. (56.1, ¶ 12).
On January 5, 1996, a mammogram revealed suspicious calcifications in Lewis's right breast. Lewis was notified and it was recommended that she have a biopsy of the right breast. Lewis complied with the request and a biopsy was performed on January 23, 1996. The pathology was benign. (56.1, ¶ 13).
Lewis returned to the BMS Ob-Gyn clinic on May 23, 1996, complaining of 5-7 days of spotting and irregular menses. She was not seen by a doctor, but by Gumbs, who referred her for a pelvic sonogram to rule out any mass, cyst, or fibroid. (56.1, ¶ 14). There is no evidence of any contact between Lewis and the BMS Ob-Gyn clinic between May 23, 1996 and January 30, 1997, when Lewis presented at the clinic with irregular vaginal bleeding and a history of lower back pain. (56.1, ¶ 15). Gumbs saw Lewis on that date, but did not examine her. (Id.). She ordered a pelvic sonogram, and scheduled a follow-up appointment in two weeks to review the findings of the report. The sonogram was performed on the same date, January 30, 1997, and was reported to show two complex predominantly cystic masses involving the ovary and measuring 3.5 x 4.3 cm and 6.3 x 5.8 cm, as well as an enlarged inhomogenous uterus suggestive of a fibroid. (56.1, ¶ 16). The report recommended additional CT or MRI testing to rule out cystadenocarcinoma. (Caputo Decl., Ex. B ("BMS"), 60-62).
Lewis returned to the BMS Ob-Gyn clinic, as requested, on February 13, 1997. No doctor saw Lewis on that date, but Gumbs informed her of the fibroid and that she should see Alerte in two weeks. (56.1, ¶ 17). Gumbs did not give Lewis a copy of the sonogram report or inform Lewis about the ovarian cysts, nor did she tell Lewis that she might have ovarian cancer, "because she wanted [Lewis] to follow up with the physician [Alerte] to make sure that everything was understood." (56.1, ¶ 18; BMS 30,Pl. Ex. I at 72).
On February 26, 1997, Lewis returned to the clinic and was seen by Alerte. Though Alerte testified in his deposition that he "review[ed] with [Lewis] the results of the pelvic sonogram and [discussed] with her the possibility of further management that is to be expected and [he] transferred her case to St. Mary's Hospital that same day," the notes Alerte made on Lewis's BMS chart do not indicate that he gave Lewis a copy of the sonogram report or referred her for a CT or MRI scan. There is no written record that Alerte advised Lewis that she might have cancer, indicated that surgery would be mandatory or a time frame within which it would need to be completed. (56.1, ¶ 19; Pl. Ex. H at 115). Alerte's notes from that day do indicate that his plan was to refer Lewis "to St. Mary's for evaluation and suggest TAHBSO [total abdominal hysterectomy, bilateral salpingo-ovariectomy]." (56.1, ¶ 19,Pl. Ex. H at 117). A nurse noted on Lewis's chart that "[Lewis was] seen by Dr. Alerte for elective surgery, copy of referral and copy of pelvic sonogram faxed to GYN St. Mary's as requested by Dr. Alente. Original referral given to patient." (56.1, ¶ 19). The cover page of the fax to St. Mary's, filled out by the nurse, indicated that Lewis was referred for elective surgery. (Id.; BMS 131). Alerte testified in his deposition that other than making sure Lewis was scheduled for a visit at St. Mary's, he had no plan for following up on Ms. Lewis's condition. (56.1, 20; Pl. Ex. H at 120-21).
Lewis was not seen at St. Mary's until July 29th, 1997, five months later. At that time she was seen by a fourth year resident in Ob-Gyn, Dr. Ann Marie Ledley-Lewis, for a surgical evaluation. (56.1, ¶ 20). Dr. Ledley sent a letter back to BMS requesting BMS to schedule additional tests, including a CT scan of Lewis's abdomen and pelvis, tumor markers and a CA 125 blood test, which were standard tests for a complex ovarian mass. (56.1, ¶ 20;Pl. Ex. J at 16, 71). Dr. Ledley-Lewis also testified that she was unaware of the January 30, 1997 sonogram at that consultation. (Pl. Ex. J. at 33-34).
The CA 125 test was performed the next day, on July 30, 1997. The result was reported as abnormally elevated and sent to Alerte or the BMS clinic. (56.1, ¶ 21). On August 18, 1997, Lewis went to the BMS clinic for a refill of medication. Though there is no indication that the clinic doctor Lewis saw that day discussed the CA 125 test with her, his notes reflect the elevated results, and that a barium enema, CT Scan, and hysterectomy were pending. (BMS 25).
The doctor's name appears to be "Haughton" from the records, but the individual is not named in the suit.
Alerte did not review the results of the CA 125 test until November 14, 1997. (56.1, ¶ 21). On that date, Lewis visited the clinic for a consult. Alerte's notes do not indicate the extent of the consultation, but do indicate that his plan was to refer Lewis to St. Mary's for surgery. Lewis was evaluated at St. Mary's on November 25, and the evaluating doctor noted that though BMS confirmed fibroids, St. Mary's "may need lab results from BMS," "schedule for hysterectomy after confirm labs," and "RTC in a week for schedule." (ST. MARY'S 28).
On December 8, 1997, Gumbs, but no physician, saw Lewis at the BMS Ob-Gyn clinic. A gynecological exam was performed, including a pap smear. A repeat pelvic sonogram was ordered for January 13, 1998. The blood tests from July 1997, including the elevated CA 125, were not discussed at this visit. Lewis returned to the clinic on December 22, 1997 to follow up on the pap smear. There is no indication in the chart that the lab results from July 1997 were discussed with her, or that there was any discussion about the surgery referral.
On February 9, 1998, Lewis was seen in the medical department of the BMS clinic for a prescription refill. She complained of stomach pain, nausea, and dizziness on the prior Saturday, but was without residual complaints. The doctor prescribed Procardia and recommended that she return in one month. (BMS 21).
The repeat sonogram ordered by Gumbs on December 8, 1997 was performed on February 17, 1998. The sonogram showed a large complex mass extending to the umbilicus. (56.1, ¶ 24). Neither Gumbs nor Alerte reviewed that sonogram until April 1998.
On April 23, 1998, Lewis was again seen in the BMS medical department for an unrelated issue. A few days later, on April 28, Lewis returned to the BMS Ob-Gyn clinic for a gynecological follow-up. Neither Gumbs nor Alerte had reviewed the February 17, 1998 sonogram report until that date. For the first time, the chart notes indicate that the "seriousness of the patient condition [was] discussed with the patient," the "need for immediate evaluation and surgery," and that "surgery to be scheduled as soon as possible" at St. Mary's. It is the first referral by BMS to a gynecological oncologist at St. Mary's. (56.1, ¶ 25). Lewis underwent surgery at St. Mary's for the removal of the mass on May 5, 1998. The surgical pathology report reflected diagnoses of metastatic carcinoma and serious papillary cystadenocarcinoma. (ST MARY'S 88).
Subsequent to her surgery at St. Mary's, Lewis received continual treatment at Sloan Kettering Memorial Hospital, including chemotherapy and a bowel resection due to metastatic adenocarcinoma. (MEMORIAL 550). Ultimately, as a consequence of ovarian cancer, Lewis died on May 12, 1999. (56.1, ¶ 26).
II. Expert Testimony
All parties have submitted the reports of physicians who have reviewed relevant medical records, depositions, and other discovery materials in anticipation of providing expert testimony at trial. Plaintiff has submitted two declarations. The first is of Joseph Finklestein, M.D., board-certified in obstetrics and gynecology and currently in practice privately and as a clinical instructor at New York Hospital and Cornell Medical College. The second is of James M. Vogel, M.D., board-certified in internal medicine with subspecialties in hematology and oncology. (Pl. Ex. A ("Finkelstein Decl."), Pl. Ex. B ("Vogel Decl.")). Also in the record are the preliminary report and declaration of the government's expert Thomas A. Caputo, M.D., Vice Chairman of the Department of Obstetrics Gynecology at New York Presbyterian Hospital and board-certified in obstetrics and gynecology with a special competence in gynecologic oncology. (Caputo Decl., Pl. Ex. C ("Caputo Report")). Finally, BMS, Alerte, and Gumbs have submitted the report of Joel Cooper, M.D., a board-certified practitioner of obstetrics and gynecology. Dr. Cooper's report only contemplates the period prior to October 1, 1996, which is not at issue in this motion; as such, his report is disregarded.
All three of the relevant expert opinions concur that Defendants' poor medical practice deviated from standard practice and contributed to Lewis's death. Dr. Finkelstein identified more than fifteen different ways in which Alerte and Gumbs failed to act in accordance with the professional standard of care, (Finkelstein Decl., ¶¶ 19-23), and definitively stated:
[I]t is my expert opinion, with a reasonable degree of medical certainty, that the care provided by the [BMS], Sandra Gumbs, and Dr. Fannel Alerte deviated from an acceptable standard of care in not diagnosing ovarian cancer in a timely fashion. It is also my expert opinion within a reasonable degree of medical certainty that their failure to diagnose ovarian cancer in a timely fashion was a proximate cause of the tragic and untimely death of Freda Lewis and of the pain and suffering associated with the treatment rendered for her advanced cancer."
* * *
Freda Lewis died as a result of the negligent care of BMS, Dr. Alerte, and Sandra Gumbs. Freda Lewis should have been diagnosed and treated in January 1997 . . . The delay in her diagnosis and treatment resulted in her tragic and untimely death, as well as the pain and suffering associated with the advanced nature of her disease and the treatment rendered in treating her advance cancer.
(Finkelstein Decl., ¶¶ 18, 33).
Dr. Vogel similarly opined that "Defendant's failures to timely diagnose this cancer deprived Ms. Lewis of [an] opportunity to achieve a better outcome . . . [T]o a reasonable degree of medical probability . . . the failure to treat Ms. Lewis in a timely fashion decreased her opportunity for long-term remission and decreased her opportunity for cure." Vogel Decl., ¶ 22.
Most extraordinarily, however, the government's own expert, Dr. Caputo, could not have been more clear that Defendants deviated from standard medical practice, and that their deviation decreased Lewis's chance of survival and contributed to her death. Merely in part, he stated:
[I]t is my opinion that Ms. Freda Lewis received less than optimal care from [BMS]. This includes the fact that she was never appropriately and adequately re-evaluated for her persistent post-menopausal bleeding from at least May 23, 1996 through her ultimate diagnosis of ovarian cancer in May of 1998. In addition, the delay in ordering appropriate diagnostic tests which included the ultrasound and most importantly a delay in retrieving the results and reviewing the results of the ultrasound, did contribute to the patient's poor clinical outcome.
* * *
There is nothing in the record to document that [Lewis] was told about the ovarian cyst. She was told about the fibroid however. This, I believe to be a departure if the patient was not fully informed about the findings of her ultrasound.
* * *
In summary, I believe Ms. Freda Lewis received less than optimal gynecologic care and diagnosis at the Brownsville Clinic. It appears there was less than a complete discussion about her initial ultrasound report. The long delay before a diagnosis did decrease the patient's chance of response and survival . . . This would lead to a less chance of response to chemotherapy, and an overall less chance of survival in my opinion.
* * *
There were several departures and deviations from good medical practice in the review of the patient's records. And therefore, I believe these deviations and poor medical practice contributed to the patient's ultimate poor outcome and advanced stage disease, and finally death due to advanced ovarian cancer.
(Pl. Ex. C ("Caputo Report"), 2-4 (emphasis supplied)).
DISCUSSION
I. Legal StandardsA. Summary Judgment
Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." When evaluating a motion for summary judgment, "[t]he courts must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. American Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Initially, the moving party bears the burden of demonstrating the absence of any genuine issue of material fact. See, e.g., Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). Once this has been presented, "the burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of material fact exists." Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993). A genuine issue of material fact exists when there is sufficient evidence favoring the nonmoving party such that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Therefore, the nonmoving party "may not rest upon the mere allegations or denials" of its pleadings; rather, its response must go beyond the pleadings to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See also Celotex Corp. v. Catrett, 477 U.S. 317, 324-325 (1986). If the court determines that there remains no genuine issue of material fact, then the moving party is entitled to judgment as a matter of law.
"New York courts have cautioned against granting summary judgment in negligence cases because even when the facts are conceded, there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances, [an issue which] can rarely be decided as a matter of law." Harper v. U.S., 949 F.Supp. 130, 132 (E.D.N.Y. 1996) (citing Lugo v. LJN Toys, Ltd., 539 N.Y.S.2d 922, 923-24 (1st Dep't. 1989) (quoting Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974)) aff'd, 552 N.Y.S.2d 914, (1990). However, where a plaintiff not only satisfies the initial burden of production to show that no genuine dispute exists, but also demonstrates that she would be entitled to a directed verdict in light of the evidence, summary judgment may be appropriate. See Schwarzer, Hirsch Barnes,The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 477-478 (1992) (citing U.S. v. One 107.9 Acre Parcel of Land Located in Warren Township, 898 F.2d 396, 398 (3d Cir. 1990); U.S. v. O'Connell, 890 F.2d 563, 567 (1st Cir. 1989)).
B. Medical Malpractice
In New York, "[t]he elements of proof in a medical malpractice action are (1) deviation or departure from accepted practice and (2) evidence that such departure was a proximate cause of injury or damage." Prete v. Rafla-Demetrious, 638 N.Y.S.2d 700, 702 (2d Dep't. 1996). A plaintiff may recover for the diminishment of a decedent's chance of survival. See, e.g., Calderon v. Irani, 745 N.Y.S.2d 610 (3d Dep't. 2002); Kallenberg v. Beth Israel Hospital, 357 N.Y.S.2d 508, 510 (2d Dep't. 1974). Because negligence in the failure to timely diagnose cancer is not a matter within the expertise of an ordinary juror, see Fiore v. Galang, 489 N.Y.S.2d 47, 48 (N.Y. 1985), "expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause." Prete, 638 N.Y.S.2d at 702 (citing Koehler v. Schwartz, 424 N.Y.S.2d 119). Where a plaintiff demonstrates through the affirmation of an expert that the defendant departed from accepted standards of medical care and that this departure was a substantial cause of her injuries, the burden of production shifts to the defendant to raise a triable issue of fact. Console v. Wyckoff Heights Medical Center, 798 N.Y.S.2d 114, 115 (2d Dep't. 2005). The failure of the defendant to do so entitles the plaintiff to summary judgment on the issue of liability. Id.
II. Whether Plaintiff is Entitled to Summary Judgment on the Liability of BMS, Alerte, Gumbs, and the Government for the Failure to Timely Diagnose After October 1, 1996
A. The timeliness of Plaintiff's claim against the United States
As a preliminary matter, the government challenges whether it can be held liable for any cause of action that accrued between October 1, 1996 and December 24, 1996 on the basis of plaintiff's alleged failure to file a timely notice of claim. As a general rule, "a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues." 28 U.S.C. § 2401(b). Under 28 U.S.C. § 2679(d)(5), however:
[w]henever an action or proceeding in which the United States is substituted as the party defendant under this subsection is dismissed for failure first to present a claim pursuant to section 2675(a) of this title, such a claim shall be deemed to be timely presented under section 2401(b) of this title if . . . (A) the claim would have been timely had it been filed on the date the underlying civil action was commenced.
Moreover, "where the plaintiff is in the continuing care of the negligent actor for the same injury out of which the FTCA cause of action arose, the statute of limitations may be tolled under certain circumstances until the end of the course of treatment."Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1080 (2d Cir. 1988). Such a tolling is justified where "it is not reasonable to expect a patient who is in the continuing care of a doctor to discover that the doctor's acts may be the cause of his injuries." Id.
Plaintiff filed her initial state court action on December 23, 1998, thus, her subsequent SF-95 notice of claim presented after the voluntary dismissal of that action was timely presented for any claims that accrued after December 24, 1996. Moreover, Lewis was clearly under the continuing care for recurrent post-menopausal bleeding and gynecological complaints prior to October 1, 1996 and through December 24, 1996. For instance, one of the manifestations of medical malpractice identified by Dr. Caputo, the government's expert witness, was Defendants' failure to adequately re-evaluate Lewis from her May 23, 1996 complaints of post-menopausal bleeding. Because Lewis was under the continuing care of the defendants, and it would be unreasonable to expect her to have discovered that Defendant's negligence was contributing to her injury at the time, she is entitled to a tolling of the statute of limitations through the end of her treatment by Defendants in May of 1998. The entirety of Plaintiff's cause of action based on facts that occurred subsequent to October 1, 1996 was thus timely noticed to the government in December 1998.
B. Whether disputed issues of material fact exist to defeat Plaintiff's assertion of liability.
Plaintiff has met her burden of establishing that Defendants departed from accepted standards of medical care and that the departure was a substantial cause of her injuries. The declaration of Dr. Finkelstein catalogues myriad ways in which Defendants departed from the standard of care and failed to timely diagnose Lewis's condition between October 1, 1996 and May 8, 1998. In addition, Dr. Vogel declared that "the failure to treat Ms. Lewis in timely fashion decreased her opportunity for long-term remission and decreased her opportunity for cure." (Pl. Ex. B, ¶ 23). These expert opinions are sufficient to shift the burden to the Defendants to produce a triable issue of fact.
Defendants BMS, Alerte, and Gumbs point to no issue of triable fact from the period beginning October 1, 1996. The entirety of their expert's testimony and their legal memoranda address only the period prior to October 1, 1996. As such, they have not controverted plaintiff's prima facie case of liability after October 1, 1996.
The government cannot credibly contest that Defendants' conduct was negligent. Its own expert, Dr. Caputo, could not be clearer in characterizing the course of treatment as below an appropriate standard of medical care and contributing to Lewis's unsuccessful treatment and death. As to whether Defendants met the standard of care, the doctor described Defendants' conduct as "poor medical practice," fraught with "delay" and "departures and deviations from good medical practice." Similarly, on the issue of causation, he clearly stated that he "believe[s] these deviations and poor medical practice contributed to the patient's ultimate poor outcome and advanced stage disease, and finally death due to advanced ovarian cancer." Aggressively parsing Dr. Caputo's statements to suggest he disputed either a finding of substandard care or causation of injury only impugns the integrity of an expert with impeccable credentials who has rendered his honest opinion based on the record. No reasonable interpretation of his preliminary report could conclude other than that his opinion is wholly consistent, on the factual questions that determine liability, with Plaintiff's experts.
The government acknowledged as much at argument.
Nonetheless, the government still protests that Plaintiff has failed to establish that Defendants' sub-standard care was the proximate cause of any injury to Lewis. The government speculates about Lewis's motivation during the course of her treatment and conjectures as to the occurrence or nonoccurrence of certain events in the months and years leading up to Lewis's diagnosis of ovarian cancer. For instance, the government suggests that Lewis should have been more diligent in pursuing medical treatment or following up with Defendants; points to Alerte's self-serving deposition testimony as to what he recalls telling Lewis during consultations; and alleges that miscommunications leading to Defendants' failure to timely diagnose Lewis's cancer were the responsibility of other defendants not subject to this motion. Though the government submits these contentions as factual disputes over proximate cause, at best these are contentions that, if proved, would effect an apportionment of culpability for damages; at worst they are mere "speculation, conjecture, and lack of recollection," none of which may serve to defeat a properly supported motion for summary judgment on liability.Console, 798 N.Y.S.2d at 115.
CONCLUSION
For the foregoing reasons, Plaintiff is entitled to summary judgment against the government for the malpractice of BMS, Alerte, and Gumbs for the period of October 1, 1996 through May 5, 1998. The Clerk of the Court is directed to enter judgment against the government as to liability during this period, and the parties are directed to contact the Court to set a date for a jury trial on damages.
SO ORDERED.