Opinion
No. 6448/2006.
2010-11-23
Mirta E. RAMIREZ as Executrix of the Estate of Narciza Torres, Plaintiff, v. Alcedo CRUZ, M.D.; Fordham Medical Complex; Francisco Bautista, M.D.; Montefiore Medical Group; Paige Long, M.D.; Reynol Suarez, M.D .; Montefiore Medical Center; Gerald Paccione, M.D.; Panna Mahadevia, M.D., and Robert Plummer, M.D., Defendants.
James R. Langione of Galasso, Langione, Catterson & LoFrumeto, LLP, for plaintiff. Terence E. Dempsey of Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, Susan M. McNamara of Garson, Decorato & Cohen, LLP, Kenneth J. Burford of Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, Jennifer E. Bienstock, Esq. of Bartlett, McDonough, Bastone & Monaghan, LLP, for defendants.
James R. Langione of Galasso, Langione, Catterson & LoFrumeto, LLP, for plaintiff. Terence E. Dempsey of Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, Susan M. McNamara of Garson, Decorato & Cohen, LLP, Kenneth J. Burford of Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, Jennifer E. Bienstock, Esq. of Bartlett, McDonough, Bastone & Monaghan, LLP, for defendants.
BETTY OWEN STINSON, J.
These separate motions by defendants Alcedo Cruz, M.D. (“Dr.Cruz”); Francisco Bautista, M.D. (“Dr.Bautista”), Panna Mahadevia, M.D. (“Dr.Mahadevia”), and Robert Plummer, M.D. (“Dr.Plummer”), for summary judgment dismissing the plaintiff's action against them are consolidated for disposition and are all granted.
In May 2004, plaintiff's decedent Narciza Torres (“Torres”) was diagnosed with liver cancer, determined later to have originated in her colon. Approximately 14 months earlier, on March 18, 2003, medical records show she had complained of rectal bleeding to her primary doctor, defendant Cruz. The same records reflect she was given a referral to defendant Bautista, a gastroenterologist, for a colonoscopy, but the colonoscopy did not take place. Torres met again with Dr. Cruz in July 2003, but the records do not reflect a discussion of rectal bleeding or the colonoscopy referral.
By September 20, 2003, Torres began to suffer an extended period of constipation and abdominal pain and went to the emergency room of defendant Montefiore Medical Center (“Montefiore”). A CT scan was performed at that time, ultimately showing thickening of the wall of her sigmoid colon, an enlarged liver and suspicion of a mass in the liver. The CT report recommended an MRI and clinical correlation to further evaluate and exclude inflammatory versus malignant process. Torres was referred again to Dr. Bautista for a colonoscopy, which took place a week later on September 26, 2003. Dr. Bautista, however, was unable to complete the colonoscopy because of the presence of highly inflamed tissue and the possibility of a perforation in Torres' colon. He sent Torres back to the emergency room at Montefiore immediately with two tissue samples, asking for an urgent surgical evaluation and monitoring to rule out perforation.
Defendant Dr. Plummer, the surgeon on call at Montefiore, evaluated Torres and concluded she showed no signs of an immediate surgical emergency. Defendant Dr. Mahadevia, pathologist, examined the tissue samples and found evidence of inflammation, but no malignant cells in the samples. Gastroenterologists at Montefiore also evaluated Torres. Defendant Dr. Paccione, a primary care doctor, followed Torres during her stay at Montefiore. A small bowel series was done to rule out problems in that area of the abdomen.
There was agreement among the physicians at Montefiore that Torres had, at the very least, some type of inflammatory bowel disease, which had to be treated and ameliorated before a repeat colonoscopy could be performed to confirm their impressions and narrow their differential diagnoses. They began treating Torres with medication for Crohn's disease and contemplated a follow-up plan with the gastroenterology department. According to Dr. Paccione's testimony, Torres was anxious to leave the hospital and argued that any testing done as an inpatient could also be done on an outpatient basis and Dr. Paccione agreed that was true. Torres reportedly told him she preferred to continue with her own gastroenterologist, Dr. Bautista, who had privileges at Bronx Lebanon Hospital, but not at Montefiore. Nevertheless, an appointment was made for her with the gastroenterologists at Montefiore, which she did not keep.
Torres began to feel much better with the treatment for Crohn's disease and followed with Drs. Cruz and Bautista. According to Torres' testimony, she had two appointments for another colonoscopy in November or December 2003, but those appointments were canceled by Dr. Bautista's office. On December 1, 2003, Torres returned to the emergency department at Montefiore after a fainting spell. The hospital records reflect that she refused an inpatient colonoscopy at that time.
By the time Torres met with Dr. Bautista in January 2004, she had confirmed she was now pregnant. Dr. Bautista explained the risks of colonoscopy with pregnancy and Torres opted not to have the colonoscopy at that time. Five months later, ultasound studies showed metastasis of colon cancer to her liver. She began chemotherapy, delivered her child, and died three years later on June 15, 2007.
Torres commenced this lawsuit in 2006 and was deposed. After Torres' death, her mother was substituted for her as plaintiff in the action. The note of issue was filed in June 2009 and Drs. Cruz, Bautista, Mahadevia and Plummer made the instant motions for summary judgment dismissing the plaintiff's action against them.
Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v. Pomeroy, 35 N.Y.2d 361 [1974] ). A party opposing a motion for summary judgment must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v. Associated Fur Manufacturers, 46 N.Y.2d 1065 [1979] ). Bare conclusory assertions of an expert are insufficient to defeat summary judgment (Wright v. NYCHA, 208 A.D.2d 327, 624 N.Y.S.2d 144 [1st Dept 1995] ). While an expert may reach conclusions in his area of expertise, he may do so only on the basis of established facts ( id.).
To make a prima facie case of medical malpractice, a plaintiff must prove that the healthcare provider departed from accepted standards of practice, thereby breaching a duty owed to the patient, and must also prove that the departure alleged was a proximate cause of injury (Stanski v. Ezersky, 228 A.D.2d 311, 644 N.Y.S.2d 220 [1st Dept], lv. to app. denied89 N.Y.2d 805 [1996] ). Defendants are to be judged on the facts that existed at the relevant time and not in retrospect and in light of subsequent events (Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 385 N.Y.S.2d 772 [1st Dept 1976] ). A physician generally does not have a duty to involve him or herself with aspects of the plaintiff's care unrelated to the physician's field of practice ( see Yasin v. Manhattan Eye, Ear and Throat Hospital, 254 A.D.2d 281, 678 N.Y.S.2d 112 [2nd Dept 1998][urologist could not be charged with duty to discover plaintiff's cardiac problem] ).
PANNA MAHADEVIA, M.D.
In support of her motion, Dr. Mahadevia offered the pleadings; the bill of particulars; the affidavit of Steven H. Dikman, M.D.; Dr. Mahadevia's deposition testimony and the deposition testimony of Torres and Dr. Bautista. The bill of particulars, inasmuch as it referred to Dr. Mahadevia, alleged that she improperly interpreted the pathology samples provided by Dr. Bautista. Dr. Mahadevia testified that she interpreted two biopsy specimens from the rectum and sigmoid colon sent to the Department of Pathology at Montefiore following Torres' colonoscopy on September 26, 2003 and found no evidence of malignancy (Deposition of Panna Mahadevia, March 18, 2009 at 53).
Dr. Bautista testified that he could not complete the colonoscopy beyond 40 cm. because the danger to Torres of a possible perforation was too great (Deposition of Francisco Bautista, M.D., May 31, 2007 at 50, 56). The specimens he was able to collect were from Torres' rectum and sigmoid colon ( id. at 59–60, 678 N.Y.S.2d 112). Torres was prescribed medication at Montefiore to reduce the inflammation found in her colon so that a full colonoscopy could be performed later to rule out cancer( id. at 76–77, 678 N.Y.S.2d 112).
Dr. Dikman, a board-certified pathologist, stated in an affidavit dated September 23, 2009 that he reviewed the same slides, as well as Dr. Bautista's and Dr. Mahadevia's testimony, and found Dr. Mahadevia's interpretation to be entirely accurate. The fact Torres died later of colon cancer does not mean Dr. Mahadevia's interpretation was wrong. Even confirmed malignancy of the colon may not always be revealed in samples taken only from the rectum and sigmoid colon. A pathologist only diagnoses specimens and does not make clinical decisions regarding a patient's care. Everything done by Dr. Mahadevia was proper, appropriate and complete.
Dr. Mahadevia demonstrated her entitlement to summary judgment which plaintiff did not oppose. Dr. Mahadevia showed by her testimony, the testimony of Dr. Bautista and the expert opinion of Dr. Dikman that her interpretation of the pathology slides was accurate and proper and that she had no other duty to Torres or involvement in Torres' care.
ROBERT PLUMMER, M.D.
In support of his motion, Dr. Plummer offered the pleadings; the bill of particulars; hospital and medical records; Dr. Plummer's affidavit and the deposition testimony of Dr. Reynol Suarez; Dr. Bautista; Dr. Mahadevia; Gerald Paccione, M.D.; Paige Long–Sharps, M .D.; Dr. Cruz, Dr. Plummer and Torres. The bill of particulars alleged that Dr. Plummer did not appreciate the signs and symptoms of colon cancer, mis-diagnosed Torres' condition as irritable bowel disease, did not include colon cancer in his differential diagnosis, failed to review the CT scan, did not perform a rectal examination or guaiac test, did not refer Torres to gastroenterology, did not communicate with Dr. Cruz or Dr. Bautista and did not refer Torres for a repeat colonoscopy.
Dr. Suarez and Dr. Long–Sharps, both obstetrician/gynecologists, attended Torres during certain periods of her prenatal care and the births of two of her children. They both testified that Torres never mentioned rectal bleeding to either of them. The records of Torres' visits to the obstetricians contain no mention of rectal bleeding. Dr. Paccione was the internal medicine attending at Montefiore who evaluated Torres when Torres was sent by Dr. Bautista to the emergency room on September 26, 2003. Torres testified that her primary care doctor was Dr. Cruz (Deposition of Narciza Torres, November 7, 2006 at 18). Torres had an aunt who was diagnosed with colon cancer at the age of 56 ( id. at 15, 188, 678 N.Y.S.2d 112). The first time Torres experienced rectal bleeding was in February 2002 ( id. at 26, 678 N.Y.S.2d 112). She told Dr. Cruz about her rectal bleeding sometime in 2003; she did not remember when that was ( id. at 26, 77, 678 N.Y.S.2d 112). The first time she mentioned rectal bleeding was when he ordered her iron pills, saying she had anemia( id. at 34, 678 N.Y.S.2d 112). He did “nothing” ( id. at 27, 30–32, 678 N.Y.S.2d 112). She saw Dr. Cruz 4 to 5 times before he referred her to Dr. Bautista ( id. at 33, 678 N.Y.S.2d 112). Each time she complained of the rectal bleeding( id. at 35, 678 N.Y.S.2d 112).
Torres began to experience vomiting in August 2003 and told Dr. Cruz ( id. at 55, 149, 678 N.Y.S.2d 112). Torres did not say when she told Dr. Cruz about this. Torres went to the emergency room at Montefiore on September 19, 2003 with complaints of constipation and abdominal pain ( id. at 32–33, 678 N.Y.S.2d 112). Prior to September 2003, Torres had not experienced abdominal pain ( id. at 51, 678 N.Y.S.2d 112). After discharge from the hospital, she went to Dr. Bautista for a colonoscopy. She was referred to him by Dr. Cruz. Dr. Bautista could not finish that colonoscopy because Torres was too “swollen” ( id. at 48, 678 N.Y.S.2d 112). He told her he did not see polyps so she probably did not have cancer ( id.). He sent her back to the emergency room after the incomplete colonoscopy. At Montefiore she was told that maybe she had Crohn's disease( id. at 49, 678 N.Y.S.2d 112). She was told to follow up with Dr. Cruz, but got “no referrals” to see a gastroenterologist ( id . at 58, 678 N.Y.S.2d 112). After discharge from the hospital, she went again to see Dr. Bautista ( id. at 59–60, 678 N.Y.S.2d 112).
Dr. Bautista examined Torres' esophagus in October 2003 and it was “all fine” ( id. at 61, 678 N.Y.S.2d 112). Dr. Bautista wanted to do another colonoscopy, but it was too soon because Torres was still swollen ( id. at 63, 678 N.Y.S.2d 112). She lost about 15 pounds between September and November 2003 ( id. at 56, 678 N.Y.S.2d 112). In November 2003, a week or two before December 1st, Torres visited Dr. Cruz complaining of weakness and vomiting. He thought she had anemia. ( Id. at 192, 678 N.Y.S.2d 112). Up until December 2003 Torres still had rectal bleeding and pain in her abdomen ( id. at 64, 678 N.Y.S.2d 112).
Torres went to the emergency room on December 1, 2003 after a fainting spell. She testified that she did not have a colonoscopy at that time because she had a fever and they did not know why ( id . at 70, 151, 678 N.Y.S.2d 112). She denied ever refusing a colonoscopy; conceding one was recommended, but that she was told to get it with Dr. Bautista ( id. at 69, 70, 72, 678 N.Y.S.2d 112). Later, she denied that a colonoscopy was recommended at all by the doctors at Montefiore during that December 2003 hospital admission ( id. at 151, 678 N.Y.S.2d 112). Torres also denied refusing a transfusion at the same time to address her anemia( id. at 71, 678 N.Y.S.2d 112). She believed she had fainted because she was pregnant ( id. at 68, 678 N.Y.S.2d 112).
Torres testified that a second colonoscopy was scheduled for her in November or December with Dr. Bautista, but was canceled two times by the doctor's office ( id. at 75–76, 678 N.Y.S.2d 112). She testified she could not talk to Dr. Bautista about it because he was out of the country ( id. at 170–171, 678 N.Y.S.2d 112). She did not say when she tried to speak to him. In January 2004 she had very little abdominal pain and was pregnant ( id. at 73–74, 678 N.Y.S.2d 112). She could not have a colonoscopy then because of the pregnancy ( id. at 75, 678 N.Y.S.2d 112). Her last menstrual period was in October 2003 ( id. at 74, 678 N.Y.S.2d 112).
In May 2004 Torres started getting a pain on her right side ( id . at 79, 678 N.Y.S.2d 112). An ultrasound was done showing lesions on her liver ( id. at 80, 678 N.Y.S.2d 112). A liver biopsy revealed cancer; it had originated in the colon ( id. at 81, 678 N.Y.S.2d 112). Dr. Kaubisch at Montefiore told Torres she had cancer for about 4 years ( id. at 86, 678 N.Y.S.2d 112). He said she was in Stage IV which takes about 4 to 5 years to develop ( id. at 86–87, 678 N.Y.S.2d 112).
The hospital records showed plaintiff visited the emergency room at Montefiore on December 1, 2003 after a fainting spell. The discharge note, dated December 3, 2003, reported that Torres was evaluated by gastroenterology but refused an inpatient colonoscopy, indicating she would follow up as an outpatient with a colonoscopy and abdominal CT scan to investigate the hepatic lesion listed on a previous CT scan. There was a still a positive stool guaiac as of November 3, but CBC was stable. The records reflect she also refused a transfusion at that time. Her temperature was recorded at 98.4. Discharge diagnosis was “syncope” and “viral illness”.
Dr. Plummer, a board-certified general surgeon, testified that his only contact with Torres was on September 26, 2003, the day she was sent to the emergency room by Dr. Bautista after the aborted colonoscopy (Deposition of Robert Plummer, M.D., March 19, 2009 at 22). Dr. Plummer was a voluntary attending physician at Montefiore at the time. He was on call and was asked by Dr. Renius, a gastroenterologist at Montefiore, for an urgent surgical consult ( id. at 30–31, 678 N.Y.S.2d 112). The hospital emergency room records showed that Torres, a 37–year–old female with a history of hypothyroidism, had a one-year history of rectal bleeding associated with abdominal pain in increasing severity. She came in after a colonoscopy with findings of colonic ulceration. The records showed a positive guaiac test, no rectal masses and no anal lesions ( id. at 41, 678 N.Y.S.2d 112). Her abdomen was soft, non-distending, minimally tender with no rebound or guarding ( id.). There were no peritoneal signs and there was no acute abdomen ( id. at 49–50, 678 N.Y.S.2d 112). Dr. Plummer did not make a diagnosis, rather, his impression was inflammatory bowel disease, a non-surgical process ( id. at 26, 41, 678 N.Y.S.2d 112). His impression was based on the colonoscopy findings ( id. at 27, 678 N.Y.S.2d 112). Dr. Plummer's differential diagnosis included colon cancer, diverticulitis, ischemic colitis and any gastrointestinal inflammatory process ( id. at 28, 678 N.Y.S.2d 112). The plan was to admit Torres to medicine and gastroenterology for management ( id. at 41, 678 N.Y.S.2d 112). Dr. Plummer did not consider radiology warranted at the time ( id. at 48–50, 678 N.Y.S.2d 112).
Dr. Plummer testified that diagnoses of colon cancer are normally made by gastroenterologists ( id. at 42, 678 N.Y.S.2d 112). When surgeons find the condition it is usually an incidental finding during an examination for something else ( id. at 43, 678 N.Y.S.2d 112). If colorectal cancer is diagnosed early, it is curable ( id. at 36, 678 N.Y.S.2d 112). A pre-cancer diagnosis can be made in the polyp stage ( id. at 37, 678 N.Y.S.2d 112). Signs and symptoms of colon cancer are rectal bleeding, change in bowel habits including constipation and, in the later stages, abdominal pain and weight loss ( id. at 23, 678 N.Y.S.2d 112). Risk factors include a history of polyps and a history of inflammatory bowel disease( id. at 22–23, 678 N.Y.S.2d 112).Inflammatory bowel disease includes conditions such as Crohn's disease, colitis and, ulcerative colitis. These can have various presentations. There can be rectal bleeding, ulceration, sloughing of mucosa, pain, fever and various episodes throughout life. Ulcerative colitis is limited to the colon. Crohn's disease can occur in both the small intestine and the colon. ( Id. at 24–25, 678 N.Y.S.2d 112). The fact that Torres' aunt had colon cancer was not particularly significant because an aunt is not a first degree relative ( id. at 24, 678 N.Y.S.2d 112).
Dr. Plummer stated in his affidavit, dated September 23, 2009, that he reviewed emergency room records and did a physical exam of Torres to see whether she required immediate surgery. Surgery was not required when he saw her and, therefore, radiology studies were not warranted for that purpose. Her history and physical exam were not indicative of colon cancer. Dr. Plummer's impression was inflammatory bowel disease and the plan was to admit her to medicine and gastroenterology for further care. The fact Torres' aunt had colon cancer did not constitute a family history of cancer. Dr. Plummer stated that he did not depart from accepted standards of care in his treatment of Torres.
Dr. Paccione testified that he was the internal medicine primary care doctor who saw Torres during her admission to Montefiore after the colonoscopy (Deposition of Gerald Paccione, M.D., July 1, 2008 at 28). She was admitted to the hospital on Friday, September 26, 2003 to make sure a perforation of her bowel did not show up ( id. at 79, 678 N.Y.S.2d 112). Torres' lab reports were normal except for a finding of persistent anemia( id. at 89, 678 N.Y.S.2d 112). Liver function was mostly within normal limits, but can also be elevated with Crohn's disease( id. at 53, 678 N.Y.S.2d 112). Dr. Paccione was aware of the CT scan and knew about the sigmoid thickening and enlarged liver ( id. at 36, 41, 678 N.Y.S.2d 112). Pathology showed only a non-specific inflammation ( id. at 93–94, 678 N.Y.S.2d 112). There was a positive guaiac showing rectal bleeding from her September 19 visit to the emergency room, so another test on September 26 would have been redundant ( id. at 44, 678 N.Y.S.2d 112). Torres had also reported intermittent rectal bleeding for more than a year ( id. at 45, 678 N.Y.S.2d 112). Rectal exams are usually not indicated right after a colonoscopy( id. at 59, 678 N.Y.S.2d 112). A repeat colonoscopy was not indicated immediately either ( id. at 62, 678 N.Y.S.2d 112).
According to Dr. Paccione, once there are symptoms of colon cancer, it is usually too late ( id. at 33, 678 N.Y.S.2d 112). Those symptoms include rectal bleeding and a change in bowel habits, 99% of which are unrelated to cancer ( id.). The main risk factor is a “very positive” family history of colon cancer( id. at 33–34, 678 N.Y.S.2d 112). An example would be three or more relatives under the age of 50 with colon cancer( id. at 34, 678 N.Y.S.2d 112). Older people are more likely to have colon cancer with these symptoms than younger people like Torres ( id. at 35, 678 N.Y.S.2d 112).
A range of possibilities, or differential diagnoses, on September 26 through September 30, 2003 included Crohn's disease, ulcerative colitis, amebic colitis that could be intermittent, basilary bacterial forms of colitis, chronic salmonella or chronic campylobacter infection( id. at 52–53, 678 N.Y.S.2d 112).Crohn's disease was the most likely differential diagnosis because the other forms of colitis involve superficial layers and bleed more ( id. at 85, 678 N.Y.S.2d 112). Crohn's is more of a thick, “through and through” wall inflammation with intermittent rectal bleeding being a classic symptom ( id.). Thickening of the bowel, pain and weight loss are also characteristic of this kind of inflammation ( id.). The classic symptoms of inflammatory bowel disease are youth, abdominal pain, intermittent recurrent bleeding, weight loss and fever ( id. at 71, 678 N.Y.S.2d 112).Crohn's disease is a form of inflammatory bowel disease with all the above symptoms plus anemia, which Torres also had ( id. at 50, 678 N.Y.S.2d 112). A definitive diagnosis would have needed a positive response to the drug therapy and another colonoscopy( id. at 87, 678 N.Y.S.2d 112). Dr. Paccione was not worried about colon cancer in Torres' case at the time because she fit the symptoms for Crohn's disease “very neatly” ( id. at 52, 678 N.Y.S.2d 112).
Dr. Paccione spoke to Torres for the first times on Saturday and Sunday, September 27 and 28, 2003 ( id. at 29, 678 N.Y.S.2d 112). Torres was insisting on going home and said there was nothing the hospital could do with her as an inpatient that could not be done as an outpatient ( id. at 30, 678 N.Y.S.2d 112). Dr. Paccione thought the enlarged liver was most likely a “fatty liver”, a common finding since Torres had a history of obesity for which she had undergone past surgery ( id. at 67–68, 678 N.Y.S.2d 112). Nevertheless, “everyone” wanted an MRI to better define the possible mass on the liver but the machine was down that Saturday and Monday ( id. at 41, 678 N.Y.S.2d 112). Dr. Paccione tried to reschedule for Friday, but Torres insisted she could get an outpatient MRI ( id. at 42, 678 N.Y.S.2d 112). She left the hospital on Tuesday ( id. at 85, 678 N.Y.S.2d 112). She was given an appointment for the gastroenterology clinic at Montefiore a week or two after that Monday, but she did not keep the appointment ( id. at 98, 678 N.Y.S.2d 112). On the day she left, Dr. Paccione asked her if she would follow up with the gastroenterology clinic at Montefiore and she said she preferred her own doctor ( id. at 99, 678 N.Y.S.2d 112). She promised to follow up with Dr. Bautista ( id. at 100, 678 N.Y.S.2d 112). Dr. Paccione did not speak to her again ( id. at 32, 678 N.Y.S.2d 112).
In opposition to Dr. Plummer's motion for summary judgment, plaintiff offered the deposition testimony of Torres and of her son Efraim Suarez, Jr., (“Suarez”); the expert affidavit of Dr. Robert Gelfand and the affidavit of an expert whose name was redacted by the plaintiff.
Suarez testified that he was born in 1982, making him 21 years old in 2003 (Deposition of Efraim Suarez, July 27, 2009 at 6). Torres told him about three months before her visit to the emergency room in September 2003 that she had been bleeding from her rectum ( id. at 24, 70, 678 N.Y.S.2d 112). She did not say how long that had been happening ( id. at 73, 678 N.Y.S.2d 112). She said it was “on and off” ( id.). She reported getting “spots” once in a while and said she might have to go to the doctors ( id. at 73, 76, 678 N.Y.S.2d 112). After the first colonoscopy, Torres went home and was feeling better; the swelling had gone down ( id. at 30, 678 N.Y.S.2d 112). She fainted 2 or 3 times after the first visit to the emergency room ( id. at 32, 678 N.Y.S.2d 112). She was dizzy, weak and tired ( id.). Two days after fainting she went back to Montefiore ( id. at 33, 678 N.Y.S.2d 112).
Dr. Gelfand stated on December 20, 2007 that he reviewed Torres' hospital and medical records and it was his opinion that the defendants' failure to timely diagnose her colon cancer was a deviation from good and accepted standards of medical practice and, had they timely diagnosed her cancer, “she would have required less extensive treatment and would have had a significantly greater chance of survival and enhanced period of survival”. Dr. Gelfand did not offer any specific facts in support of these conclusions.
Plaintiff's unidentified medical expert stated on November 19, 2009 that he is board-certified in internal medicine and gastroenterology and reviewed the hospital and medical records of the decedent and the motion papers submitted on the instant motions. The standard of care between 2001 and 2004, if a patient was complaining of rectal bleeding for two years, as in this case according to Torres' testimony, was to investigate the cause by performing a rectal exam, stool guaiac tests, CT scans, MRI's and complete colonoscopies. Dr. Plummer's departures from good and accepted medical practice included his failure to appreciate the signs and symptoms of colon cancer, failure to properly respond to the colonoscopy findings, failure to communicate with Dr. Cruz and/or Dr. Bautista, his mis-diagnosis of Torres' true condition, his failure to have colon cancer in his differential diagnosis, his failure to timely diagnose colon cancer and colon cancermetastasis, failure to review the CT scan, failure to perform a rectal exam or stool guaiac test and failure to timely refer Torres to a gastroenterologist. In the expert's opinion, between early 2003 and January 2004, Torres had late Dukes B or early Dukes C colon cancer, which have a statistical fiver-year survival rate of 60% and 40%, respectively. Had Torres been diagnosed with colon cancer prior to January 2004, she would have had a “reasonable chance of survival or cure”. Dr. Plummer's “diagnosis” of “irritable bowel disease” was a “clear misdiagnosis” and his delay in diagnosis deprived Torres of the opportunity for a cure and/or longer survival and was the proximate cause of her death.
Dr. Plummer has demonstrated his entitlement to summary judgment which plaintiff has not refuted with admissible evidence. Dr. Plummer's and Dr. Paccione's testimony established that Dr. Plummer's role was as a surgical consult to rule out the immediate need for surgery, which he did. As a surgical consultation, Torres' case was not Dr. Plummer's to manage. Nevertheless, he did recommend Torres be admitted for further medical and gastroenterology work-up, contrary to the expert's opinion that he was negligent in not referring to a gastroenterologist. The evidence is clear that a repeat colonoscopy was contemplated by the physicians attending Torres once the inflammation was cleared up with medication. Torres had just come from a colonoscopy, making a rectal exam unnecessary, and, furthermore, there is no claim she had rectal cancer. It was known already that she was bleeding, making a guaiac test for blood in the stool unnecessary. Furthermore, a guaiac had been performed only one week earlier. Dr. Paccione knew about the CT findings and plaintiff's expert did not specify what, if anything, Dr. Plummer could have or should have done with that information or with the information from the colonoscopy beyond what he did.
Dr. Gelfand's affidavit did not raise an issue of fact for trial. It was entirely cursory, vague, directed to all defendants and was unsupported by any specific facts or explanations for its conclusions. Similarly, plaintiff's unidentified expert did not give any reason to support the bare conclusions that Dr. Plummer deviated from accepted standards of medical care. The expert offered no factual support for the conclusion that Dr. Plummer mis-diagnosed Torres' condition as inflammatory bowel disease. Dr. Paccione's testimony indicated, and plaintiff's expert did not dispute, that inflammatory bowel disease and colon cancer are not mutually exclusive and have most of the same symptoms. Furthermore, Dr. Plummer testified that he did not make a diagnosis of any kind, contrary to the expert's assertion, rather he formed an impression of inflammatory bowel disease which agreed with that of the other attending physicians and was supported by Dr. Bautista's direct observation of inflammation in Torres' colon and, later, the pathologist's report. According to Dr. Paccione's testimony, definitive diagnosis was not even available until a repeat colonoscopy could be performed and that was not possible until Torres responded positively to her medication. In addition, Dr. Plummer's differential diagnosis did include colon cancer, contrary to the expert's incorrect statement of the facts.
The expert did not specify which of the signs of colon cancer Dr. Plummer allegedly missed. Nor did he address Torres' unwillingness to wait for an MRI in the hospital or to follow up with one on an outpatient basis after she was discharged. The expert did not specify the information Dr. Plummer should have shared with Dr. Cruz or Dr. Bautista, or what they might have shared with him beyond what was contained in the hospital records. The expert did not specify why, as a surgical consult to the gastroenterology department at Montefiore, Dr. Plummer should have communicated with them at all.
FRANCISCO BAUTISTA, M.D.
In support of his motion, Dr. Bautista offered the pleadings, the bill of particulars, hospital records, Dr. Bautista's office records, the colonoscopy records, the deposition testimony of Dr. Bautista, Dr. Paccione and Dr. Bautista's affidavit. The bill of particulars alleged, among other things, that Dr. Bautista departed from good and accepted medical practice by failure to timely diagnose colon cancer, to include colon cancer in his differential diagnosis, to appreciate the clinical significance of rectal bleeding and abdominal pain, to recognize that bloody stool could be related to colon cancer, to obtain a complete and accurate history of Torres' presenting symptoms, to properly evaluate diagnostic studies, to take note of a positive family history of colon cancer, and to refer the patient to a colorectal specialist.
Dr. Bautista's office records show he saw Torres for the first time on September 26, 2003, the date of the incomplete colonoscopy. He then saw her on October 17, 2003; October 22, 2003; November 22, 2003 and January 19, 2004. He testified he was board-certified in internal medicine and gastroenterology (Deposition of Francisco Bautista, M.D., May 31, 2007 at 10, 12). Dr. Bautista remembered a conversation with Dr. Cruz about Torres on September 23rd or 24th, discussing her rectal bleeding, abdominal pain and an abnormal CT scan( id. at 23, 678 N.Y.S.2d 112). His initial note recorded a 37–year–old Hispanic female who was seen one week before at the emergency room at Montefiore because of increasing abdominal pain. She was found to have a positive stool guaiac, a questionable mass in the right lower quadrant and a history of painless rectal bleeding not associated with diarrhea but with some weight loss of fifteen pounds. Family history included an aunt with colon cancer, a “very weak association”. ( Id. at 46–47, 678 N.Y.S.2d 112). Dr. Bautista's impression was ischemic v. ulcerative colitis( id. at 51, 678 N.Y.S.2d 112). Dr. Bautista testified that a positive stool guaiac was more frequently found with ulcerative colitis than with colon cancer( id. at 84, 678 N.Y.S.2d 112).
During the colonoscopy, Dr. Bautista encountered severe inflammatory changes, narrowing of the lumen and a smell like dead tissue ( id. at 56, 678 N.Y.S.2d 112). There was a possibility of perforation due to the inflammation and the colonoscopy could not be completed ( id .). He considered colon cancer as a possibility because of the questionable mass in the right lower quadrant on the CT scan( id. at 52, 678 N.Y.S.2d 112). The weight loss could be explained by the inflammatory process ( id.). He took biopsy specimens from the accessible left side because he thought that if cancer was found on the left, chances are there was also cancer on the right side ( id. at 53, 678 N.Y.S.2d 112).
After the colonoscopy, his differential diagnosis was ulcerative colitis, Crohn's disease, colon cancer and non-specific colitis( id. at 57–58, 678 N.Y.S.2d 112). Dr. Bautista never puts his differential diagnosis in the record ( id. at 95, 678 N.Y.S.2d 112).
After Torres was sent back to Montefiore on September 26, 2003, the next two times Dr. Bautista followed up with Torres were October 17, 2003 and October 22, 2003 ( id. at 31, 678 N.Y.S.2d 112). On October 17, 2003, Dr. Bautista performed an EGD, or examination of the digestive tract through the esophagus, and found gastritis, or inflammation of the mucosa of Torres' stomach ( id. at 79, 678 N.Y.S.2d 112). On October 22, Dr. Bautista received the pathology report showing only inflammation and no malignant cells ( id. at 54–55, 62, 678 N.Y.S.2d 112).
On November 22, 2003, Torres reported no complaints of abdominal pain, no more blood in her stool, no weight loss and no fever ( id. at 83, 678 N.Y.S.2d 112). She was responding to the treatment prescribed at Montefiore and reported she was much better ( id.). A colonoscopy to rule out cancer on the right side of the colon was scheduled for December 12, 2003 ( id. at 77, 678 N.Y.S.2d 112). Torres did not appear for the December 12, 2003 colonoscopy( id. at 85, 678 N.Y.S.2d 112). Another appointment was made for December 31, 2003, but Torres did not appear on that date either ( id. at 32, 678 N.Y.S.2d 112). Dr. Bautista finally saw Torres again on January 19, 2004 and she told Dr. Bautista she was 3–4 months pregnant ( id. at 93, 678 N.Y.S.2d 112). When Dr. Bautista explained the risks of colonoscopy at that point in pregnancy, Torres opted not to go forward with the colonoscopy ( id .). She was not symptomatic at the time except for some lower abdominal pain ( id. at 94, 678 N.Y.S.2d 112).
Dr. Bautista stated in his affidavit dated September 25, 2009 that in 20 years of practice he has diagnosed and treated many patients with irritable bowel syndrome, ulcerative colitis, inflammatory bowel disease and colon cancer. He appropriately managed Torres' care with the colonoscopy performed on September 26, 2003. It could not be completed because of the friable nature of the colon. He called an ambulance and sent Torres to the emergency room with a detailed note and biopsy specimens. Torres was seen immediately and admitted.
Dr. Bautista stated that, based on a review of the medical records, pleadings, bills of particulars and deposition testimony, Torres' colon cancer, if present during his treatment (September 2003 through January 2004), could not have been detected. Dr. Bautista stated that he had provided appropriate follow-up. When the first complete colonoscopy could have been performed, Torres refused because of the risk of spontaneous abortion. She had no signs or symptoms of cancer at that time and it had been ruled out by a pathologist. It was reasonable in Dr. Bautista's opinion to rely on a negative biopsy for coloncancer in a young woman and plan for a repeat colonoscopy when the colon had healed in January 2004. If plaintiff had agreed, it is possible the cancer would have been detected at that point. The diagnosis was not made until May 2004. The delay in diagnosis did not contribute to Torres' death given the aggressive nature of the cancer. In retrospect, had a complete colonoscopy been performed in January 2004, it would have made no difference in the eventual outcome. There were no departures in Dr. Bautista's treatment of Torres.
In opposition to the motion, plaintiff offered the same evidence as against the other movants. Dr. Gelfand's affidavit is insufficient as to Dr. Bautista for the same reasons stated previously. Plaintiff's unidentified expert stated that Dr. Bautista departed from good and accepted medical standards by not appreciating the signs of colon cancer, not having it in his differential diagnosis, not diagnosing it, not reviewing the CT scan performed on September 20, 2003, not doing a rectal exam or guaiac test, not referring for radiological studies, not communicating with Dr. Cruz, not doing a complete colonoscopy, not repeating the colonoscopy and by diagnosing Torres with ulcerative colitis v. Crohn's disease. The expert stated that, had the cancer been diagnosed prior to January 2004, Torres would have had a reasonable chance for cure or survival. The delay in diagnosis deprived Torres of the opportunity for a cure or for longer survival.
Dr. Bautista has demonstrated his entitlement to summary judgment which plaintiff has not refuted with admissible evidence. Dr. Bautista knew Torres was bleeding rectally; he did not need to do a stool guaiac test to determine that. He completed enough of the colonoscopy in September 2003 to actually view the rectum, obviating the need for a rectal exam. As noted before, there is no claim Torres had rectal cancer. The reason for not completing the colonoscopy in September was explained and unchallenged by plaintiff's expert. Dr. Bautista did not diagnose colon cancer or metastasis because a repeat colonoscopy was needed for a definitive diagnosis and was never done.
Dr. Bautista explained that a repeat colonoscopy was not possible until Torres' colon healed sufficiently and, when that was accomplished, she opted not to have one because of her pregnancy. Torres herself testified that since she was already pregnant, “there wasn't much he could do” (testimony at 75). Torres believed she was pregnant as early as December 1, 2003 before the repeat colonoscopy dates. She still believed even later, at the time her deposition was taken, that she had fainted in December because she was pregnant. The hospital records document her refusal to undergo a repeat colonoscopy at Montefiore during that December admission, as well as a transfusion to address her anemia. There is no evidence to support her statement that she could not have the colonoscopy at that time because of an unexplained fever. Her testimony to the contrary does not raise an issue of fact; hospital records documented her temperature as normal during that admission.
All the medical evidence offered showed that the signs and symptoms of Crohn's disease were the same as the signs and symptoms of colon cancer, except that Crohn's was a more likely diagnosis given Torres' relative youth. All the medical testimony discounted Torres' aunt's cancer as indicating a “family history of colon cancer” because the aunt was over 50 years old and was not a first degree relative.
Plaintiff's expert did not explain the basis of his opinion that inflammatory bowel disease was incompatible with colon cancer when the presence of the former constituted a risk factor for the latter, or why the initial differential diagnoses were incorrect, especially since Torres was responding to the treatment for Crohn's disease. Dr. Bautista's evidence showed he did appreciate the signs of colon cancer. He testified that colon cancer was an obvious differential diagnosis given the suspicion of a mass on the CT scan, but that he could not do a repeat colonoscopy until January 2004.
Plaintiff's expert did not opine as to what additional radiological studies might have shown. Either the suspicion of a mass on the liver seen in September 2003 showed what was later found to be metastasis to the liver that had already occurred, or it did not. If it did, there was nothing Dr. Bautista could have done to avoid metastasis; the CT scan was performed before Dr. Bautista even saw Torres for the first time. If the questionable mass seen in September 2003 was only an artifact of a “fatty liver”, it was not unreasonable or negligent to view that as a likely explanation for its presence. Plaintiff's expert did not opine as to when metastasis occurred before May 2004. The expert did not offer any factual support for the opinion that Torres had Dukes B or Dukes C colon cancer at the times cited. The expert did not relate this opinion to any of the clinical or diagnostic evidence, even when viewed in hindsight.
Plaintiff's expert did not offer an opinion as to when Dr. Bautista could have and should have made a definitive diagnosis of colon cancer before January 2004. Torres testified that she “believe[d]” Dr. Bautista's office canceled two dates for the repeat colonoscopy, but it is not clear that Dr. Bautista even knew about the cancellations at the time, if they were done by his office, or the reasons for them. He testified only that he did not know why Torres failed to appear on December 12th or December 31st.
ALCEDO CRUZ, M.D.
In support of his motion for summary judgment, Dr. Cruz offered the pleadings, the bill of particulars, hospital and medical records, his deposition and his affidavit. The bill of particulars alleged Dr. Cruz mis-diagnosed Torres' condition as Crohn's disease, failed to timely diagnose colon cancer, failed to include colon cancer in a differential diagnosis, to appreciate the clinical significance of rectal bleeding and abdominal pain, to ignore a positive family history of colon cancer, to obtain a complete and accurate history of Torres' presenting symptoms, to properly interpret pathology slides, to properly evaluate the diagnostic studies, to consider the diagnostic studies suggestive of cancer, to conduct a full physical examination, to refer Torres to a colorectal specialist, to allow the cancer to metastasize, to misdiagnose Torres' condition as Crohn's disease, to respond to the suspicious incomplete colonoscopy and abnormal CT scan and to question Torres regarding the frequency and appearance of her rectal bleeding.
Dr. Cruz testified that the signs and symptoms of colon cancer are weight loss, iron deficiency anemia, rectal bleeding, change in bowel movements and constipation (Deposition of Alcedo Cruz, February 22, 2007 at 19–20). Risk factors include being over 50 years old, a family history of colon cancer, low fiber diet, inflammatory bowel disease, family with polyps that can become cancerous ( id. at 20, 678 N.Y.S.2d 112). If a patient has a first degree relative who had colon cancer, other members of the family then should be screened for the disease five years before the youngest person in the family who developed the disease ( id. at 21, 678 N.Y.S.2d 112). An aunt is not a first degree relative ( id.). Dr. Cruz had never made a diagnosis of colon cancer before May 2004 ( id. at 22, 678 N.Y.S.2d 112).
Torres' first visit with Dr. Cruz was on December 9, 2002 ( id. at 40, 678 N.Y.S.2d 112). Records show Torres first complained of bright red rectal bleeding on March 18, 2003 ( id. at 48, 678 N.Y.S.2d 112). Dark bleeding might be from the upper gastrointestinal tract, bright red bleeding might be from the rectum or lower tract ( id. at 51, 678 N.Y.S.2d 112). The records reflect Torres was referred to Dr. Bautista and blood tests were ordered ( id. at 49, 678 N.Y.S.2d 112). Dr. Cruz did not recall telling Torres how soon she should see Dr. Bautista. Dr. Bautista is just one of many gastroenterologists to whom Dr. Cruz made referrals ( id. at 22–23, 678 N.Y.S.2d 112). Normally the office would call and make the appointment for a referral and the patient would tell Dr. Cruz about it at a subsequent visit ( id. at 53, 678 N.Y.S.2d 112). The consultant would then send Dr. Cruz a note with his findings ( id. at 54, 678 N.Y.S.2d 112). There was no note from Dr. Bautista in the records ( id. at 54, 678 N.Y.S.2d 112). The blood tests ordered on March 18th were normal; there was no iron deficiency anemia and liver function tests were normal ( id. at 58–59, 678 N.Y.S.2d 112). There was no reason to do a guaiac test because Dr. Cruz already knew there was rectal bleeding( id. at 60, 678 N.Y.S.2d 112).
The next visit with Dr. Cruz was on July 16, 2003 ( id. at 63, 678 N.Y.S.2d 112). Torres was there for an MMR vaccine ( id.). Dr. Cruz did not have an independent recollection of the meeting ( id. at 66, 678 N.Y.S.2d 112). His record did not reflect a complaint of recurring rectal bleeding or discussion of the referral ( id. at 64, 678 N.Y.S.2d 112). Dr. Cruz normally reviewed his note from the previous visit and “probably” asked Torres about it ( id.).
Torres' boyfriend called to say Torres was having abdominal pain ( id. at 26, 678 N.Y.S.2d 112). Dr. Cruz told him to take her to an emergency room ( id.). Torres went to the emergency room at Montefiore on September 19, 2003 and returned to see Dr. Cruz on September 20, 2003. Dr. Cruz saw preliminary reports of the tests done at Montefiore showing Torres had a positive guaiac and a CT scan which showed a “probable” mass and thickening of the sigmoid colon wall adjacent to a lymph node ( id. at 28–31, 72, 678 N.Y.S.2d 112). Further investigation in the form of a colonoscopy was warranted “ASAP” or within the following 2 to 3 weeks to determine whether she had an inflammatory disease or a malignancy ( id. at 32, 72, 678 N.Y.S.2d 112).Colon cancer was a possibility considered at that time ( id. at 34, 678 N.Y.S.2d 112). A gastroenterologist was needed to determine that ( id. at 72, 678 N.Y.S.2d 112). Another referral to Dr. Bautista was made by Dr. Cruz on September 20, 2003 ( id. at 67, 678 N.Y.S.2d 112). Dr. Bautista called Dr. Cruz back after the colonoscopy took place ( id. at 54–55, 678 N.Y.S.2d 112).
On October 6, 2003 Torres also told Dr. Cruz about the colonoscopy, that she had been diagnosed with Crohn's disease and was on Mesalamine to treat it ( id. at 76, 678 N.Y.S.2d 112). She complained of constipation but said there had been no recurrence of the rectal bleeding( id. at 76, 79, 678 N.Y.S.2d 112). She reported feeling better and responding to the medication ( id. at 78, 678 N.Y.S.2d 112). The plan was to use Metamucil and follow with the gastroenterologist once she no longer had any flare-up of the inflammation ( id. at 77, 678 N.Y.S.2d 112). Torres was seen again by Dr. Cruz on November 5, 2003 ( id. at 79, 678 N.Y.S.2d 112). On November 10, 2003 Dr. Cruz called her to come in because he had received lab reports showing anemia( id. at 84, 678 N.Y.S.2d 112). That could be explained by the rectal bleeding from Crohn's disease ( id.). All other tests were within normal limits ( id. at 82, 678 N.Y.S.2d 112). Dr. Cruz did not consider cancer at that point because of the diagnosis of Crohn's disease( id. at 86, 678 N.Y.S.2d 112). Dr. Cruz sent Torres to a specialist for diagnosis and relied on that specialist ( id. at 97, 678 N.Y.S.2d 112).
Dr. Cruz next saw Torres on January 5, 2004 ( id. at 87, 678 N.Y.S.2d 112). Torres reported missing her period and a pregnancy test was positive at that time ( id.). Torres never had symptoms that required a rectal exam or a stool guaiac test( id. at 94–95, 678 N.Y.S.2d 112). In Dr. Cruz' opinion, none of his treatment of Torres departed from good and accepted medical practice ( id. at 95–97, 98, 678 N.Y.S.2d 112).
Dr. Cruz stated in his affidavit that he is an internist affiliated with Bronx–Lebanon Hospital at the relevant time. He had no affiliation with Montefiore at that time. His management of Torres' case was within good and accepted practice. He referred Torres to a gastroenterologist for rectal bleeding on March 18, 2003. There was no reason to do a guaiac test because he already knew it would be positive. Torres had no first degree relative with colon cancer or any cancer. On March 18, 2003, Torres was not anemic. Her blood levels were within normal limits. On July 16, 2003, Torres was followed for her hypothyroidism and did not complain of continued rectal bleeding. If she had, the complaint would have been included in the examination notes.
In September 2003, Torres' boyfriend called and said Torres was experiencing abdominal pain. Dr. Cruz told them to go to an emergency room. On September 20, 2003 Torres and her boyfriend came to Dr. Cruz' office with the CT scan report showing further investigation was needed. That was the first time Dr. Cruz considered cancer as a possibility and it was the first time it was reasonable for him to do so.
Signs and symptoms of colon cancer included unexplained weight loss, rectal bleeding, persistent abdominal discomfort, constipation, a change in bowel movements, anemia, a feeling the bowel does not empty completely and weakness or fatigue. Risk factors include being over 50 years old, a low fiber diet, a history of inflammatory bowel disease and a first degree family history of polyps. Colon cancer screening begins at the age of 50. Because of the rectal bleeding and preliminary CT scan results on September 20, 2003, a referral was made to Dr. Bautista and a colonoscopy was scheduled. Dr. Cruz called him personally. The colonoscopy was performed on September 26, 2003. It was aborted because of significant inflammation.
On October 6, 2003 Torres was feeling better and reported no more bleeding. She had a normal abdominal exam with all quadrants examined. There were no complaints of pain or constipation. Dr. Cruz noted a history of Crohn's disease and follow-up anticipated with a gastroenterologist. On November 5, 2003, Torres complained of headaches with nausea. There were no complaints of continued rectal bleeding or other signs of colon cancer. On November 10, 2003, Dr. Cruz received lab reports showing Torres' anemia. Dr. Cruz prescribed iron for her. There were no further signs of cancer at that time.
No rectal exams were required from March 18, 2003 through May 2004 because there were no symptoms requiring such. There was never a need for a guaiac because Torres already reported bleeding. There was no need to entertain colon cancer as a differential diagnosis other than as noted above since Torres was appropriately referred to specialists to determine a diagnosis, and it was reasonable to rely on the diagnosis of those specialists. Torres had no first degree history of colon cancer. Given her symptoms it was not necessary to refer her to a colorectal specialist. All proper referrals were made. There were no examinations or studies contra-indicating her care by Dr. Cruz up to the time her cancer was diagnosed.
In opposition to the motion by Dr. Cruz, plaintiff offered the same opposition as above. Dr. Gelfand's affidavit is insufficient to raise an issue of fact for the reasons cited previously. Plaintiff's unidentified expert cited as departures by Dr. Cruz the failures to appreciate the signs and symptoms of colon cancer, to include colon cancer in his differential diagnosis, to timely diagnose colon cancer and colon cancermetastasis, to have guaiac and rectal exams, to “timely” refer Torres to a gastroenterologist, to refer for radiological studies including a CT scan and to communicate with Dr. Bautista—all depriving Torres of a reasonable chance for survival or cure and contributing to her death.
Dr. Cruz has demonstrated his entitlement to summary judgment which plaintiff has not refuted with admissible evidence. Dr. Cruz showed that he was first advised of Torres' rectal bleeding on March 18, 2003, at which time he referred Torres to Dr. Bautista, a gastroenterologist. Torres did not follow through with that referral. When Torres returned to Dr. Cruz in July 2003, Dr. Cruz did not have independent recollection of the visit, but testified that he would have reviewed the chart and the notes of her previous visit and probably asked about the referral. Torres did not complain at that time of rectal bleeding, which was described to other doctors and to her son as “on and off” or intermittent, because if she had, it would have been noted in the chart. In August or September 2003, Dr. Cruz was advised that Torres was experiencing abdominal pain and he told her to go to an emergency room if it became worse. Dr. Cruz did consider colon cancer as a possibility, but referred Torres for a specialist's opinion. There was no need for a guaiac since Torres told Dr. Cruz she was bleeding rectally. A rectal exam was not indicated and would not have shown anything in any event since there is no evidence Torres had rectal cancer. A CT scan was performed in September 2003 and Dr. Cruz did communicate with Dr. Bautista after the incomplete colonoscopy. A repeat colonoscopy for a definitive diagnosis was contemplated by Dr. Bautista as soon as Torres' colon healed sufficiently to make that possible. Dr. Bautista was following the case and Dr. Cruz reasonably relied on the specialist's treatment of Torres' gastrointestinal complaints.
It was Torres' decision not to have an MRI at Montefiore in September 2003. Plaintiff's expert did not opine as to what could have been seen on an MRI at that point, even if Torres had agreed. As noted previously, either Torres' liver was involved by then, or it was not. There were possible explanations for the findings on the CT scan that did not involve cancer. Plaintiff's experts did not take a position either way on that issue and the evidence of cancer least amenable to variable interpretation would have been the colonoscopy.
It was Torres' decision not to have a colonoscopy in December 2003, the first time it could have been done after the September visit to the emergency room. Her testimony that it could not be performed at that time because of an unexplained fever is flatly contradicted by the hospital records and does not create an issue of fact for trial, especially since she testified both that a colonoscopy was recommended and that it was not recommended during that same visit.
It was Torres' decision not to have a colonoscopy in January 2004 because of her pregnancy. The record shows that Torres only underwent colonoscopy and radiological or ultrasound studies when she was experiencing pain, despite the number of times such studies were recommended to her. Torres testified that she never felt abdominal pain before September 2003 and that she had begun to feel much better by December and January since the bowel inflammation was improving with treatment.
Despite plaintiff's attempts to cast doubt on Dr. Cruz' first referral to a gastroenterologist in March 2003, that referral was documented by Dr. Cruz. Torres' testimony that “nothing” was done by any of the doctors to whom she complained of rectal bleeding does not create an issue of fact since any time her complaint of rectal bleeding was documented, there was also documented evidence that appropriate action was either taken or recommended, whether Torres followed the particular recommendations or not.
Plaintiff's experts have not raised issues of fact regarding departures from accepted medical practice as to any of the movants. Dr. Gelfand's affidavit is, as previously noted, entirely vague, conclusory and directed to all defendants regardless of their individual role or lack of role in Torres' treatment. Plaintiff's unidentified expert's opinion regarding departures is unsupported by the evidence or by any explanation for the conclusions offered. Furthermore, plaintiff's experts did not make any connection between the alleged departures and the cause of Torres' suffering and death, except to state that, if she had been diagnosed in 2003 or in January 2004, she would have had a statistical 60% to 40% chance of surviving for 5 years. Plaintiff's expert offered no factual or evidentiary support for the bare conclusion that Torres' cancer was at the development stages cited in 2003 and in January 2004.
Movants are directed to serve a copy of this order on the Clerk of Court who shall amend the caption to delete the names of Panna Mahadevia, M.D.; Robert Plummer, M.D.; Francisco Bautista, M.D, and Alcedo Cruz, M.D., as party defendants.
This constitutes the decision and order of the court.