Opinion
2020–04056 Index No. 612229/15
08-16-2023
Virginia KELLY, et al., plaintiffs, v. Pedro Luis GONZALEZ–TORRES, etc., et al., defendants, Guy Bassis, etc., et al., appellants.
Furey, Furey, Leverage & Darlington, P.C., Hempstead, NY (Susan Weihs Darlington of counsel), for appellants.
Furey, Furey, Leverage & Darlington, P.C., Hempstead, NY (Susan Weihs Darlington of counsel), for appellants.
MARK C. DILLON, J.P., ROBERT J. MILLER, PAUL WOOTEN, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for medical malpractice, etc., the defendants Guy Bassis and Zwanger–Pesiri Radiology appeal from an order of the Supreme Court, Suffolk County (Sanford Neil Berland, J.), dated May 12, 2020. The order, insofar as appealed from, denied the unopposed motion of those defendants for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the unopposed motion of the defendants Guy Bassis and Zwanger–Pesiri Radiology for summary judgment dismissing the complaint insofar as asserted against them is granted.
During a physical examination of the plaintiff Virginia Kelly (hereinafter the plaintiff) in September 2014, the plaintiff's medical doctor detected a mass in her right breast. Upon the doctor's recommendation, the plaintiff scheduled a mammogram and breast ultrasound for November 6, 2014, with the defendant Zwanger–Pesiri Radiology. While waiting for that appointment, the plaintiff noticed certain thickening on her right breast and that the mass had grown from the size of a pea to the size of an egg. On November 6, 2014, the defendant Guy Bassis, who worked at Zwanger–Pesiri Radiology, performed a mammogram and ultrasound on the plaintiff.
Bassis's report noted the existence of a "palpable lump" in the plaintiff's right breast, but that it was "probably benign," and recommended followup in six months with a 3D mammogram to document stability. Bassis discussed the findings and recommendation with the plaintiff. Bassis told the plaintiff that if she was not happy with his diagnosis she could make an appointment for a biopsy. The plaintiff did so. On December 23, 2014, Bassis performed an ultrasound-guided core biopsy. The results of the biopsy revealed that the mass was cancerous. The plaintiff sought treatment, ultimately undergoing chemotherapy and a right total mastectomy.
The plaintiff, and her husband suing derivatively, commenced this action to recover damages for medical malpractice against, among others, Bassis and Zwanger–Pesiri Radiology (hereinafter together the defendants). In her complaint, the plaintiff alleged that Bassis departed from accepted standards of medical care in failing to recommend a biopsy, which delayed her diagnosis. The defendants moved for summary judgment dismissing the complaint insofar as asserted against them, and submitted, among other things, the affirmation of their expert, Julia Smith, a physician board certified in oncology. The plaintiff submitted no opposition to the motion. The Supreme Court denied the defendants’ motion.
" ‘In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries’ " ( Hutchinson v. New York City Health & Hosps. Corp., 172 A.D.3d 1037, 1039, 101 N.Y.S.3d 96, quoting Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ). "Thus, in moving for summary judgment, a physician defendant must establish, prima facie, ‘either that there was no departure or that any departure was not a proximate cause of the plaintiff's injuries’ " ( Hutchinson v. New York City Health & Hosps. Corp., 172 A.D.3d at 1039, 101 N.Y.S.3d 96, quoting Lesniak v. Stockholm Obstetrics & Gynecological Servs., P.C., 132 A.D.3d 959, 960, 18 N.Y.S.3d 689 ). Once a defendant makes this prima facie showing, "the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, ... but only as to the elements on which the defendant met the prima facie burden" ( Donnelly v. Parikh, 150 A.D.3d 820, 822, 55 N.Y.S.3d 274 [internal quotation marks omitted]; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Hutchinson v. New York City Health & Hosps. Corp., 172 A.D.3d at 1039, 101 N.Y.S.3d 96 ).
Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law. The expert medical affirmation submitted in support of their motion for summary judgment indicated that the six-week delay in diagnosis did not affect the plaintiff's prognosis, which would have been essentially the same had the malignancy been found six weeks earlier. As the defendants established that the six-week delay in diagnosis was not a proximate cause of the plaintiff's alleged injuries, and the plaintiff submitted no opposition to raise a triable issue of fact, the Supreme Court improperly denied the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them (see Bendel v. Rajpal, 101 A.D.3d 662, 664, 955 N.Y.S.2d 187 ; Pichardo v. Herrera–Acevedo, 77 A.D.3d 641, 908 N.Y.S.2d 446 ; cf. Fishkin v. Feinstein, 67 A.D.3d 961, 962–963, 888 N.Y.S.2d 768 ; Rezvani v. Somnay, 65 A.D.3d 537, 538, 882 N.Y.S.2d 910 ).
The defendants’ remaining contentions need not be reached in light of the foregoing.
DILLON, J.P., MILLER, WOOTEN and TAYLOR, JJ., concur.