Opinion
Index No. I2009006547
01-20-2022
Jacek WOLOSZUK, Individually and as Executor of the Estate of Ellen Woloszuk, deceased, Plaintiffs, v. Wende LOGAN-YOUNG, M.D., Wende Logan-Young, M.D. d/b/a Elizabeth Wende Breast Clinic, Philip Murphy, M.D., Southeast Obstetrics & Gynecology, P.C. and Rita Clement, M.D., Defendants.
Paul William Beltz LLC (Anne Beltz Rimmler, Esq., William A. Quinlan, Esq., and Elizabeth K. Bacher, Esq.) for Plaintiffs Jacek Woloszuk, Individually and as Executor of the Estate of Ellen Woloszuk, deceased; Underberg & Kessler LLP (Margaret E. Somerset, Esq; Jessie Gregorio, Esq., and Katherine T. McCarley, Esq.) for Defendants Wende Logan-Young, M.D., Wende Logan-Young, M.D. d/b/a Elizabeth Wende Breast Clinic, and Philip Murphy, M.D.; Brown, Gruttadaro & Prato, PLLC (Thomas M. Prato, Esq. and William Kalish, Esq.) for Defendants Southeast Obstetrics & Gynecology, P.C. and Rita Clement, M.D.
Paul William Beltz LLC (Anne Beltz Rimmler, Esq., William A. Quinlan, Esq., and Elizabeth K. Bacher, Esq.) for Plaintiffs Jacek Woloszuk, Individually and as Executor of the Estate of Ellen Woloszuk, deceased;
Underberg & Kessler LLP (Margaret E. Somerset, Esq; Jessie Gregorio, Esq., and Katherine T. McCarley, Esq.) for Defendants Wende Logan-Young, M.D., Wende Logan-Young, M.D. d/b/a Elizabeth Wende Breast Clinic, and Philip Murphy, M.D.;
Brown, Gruttadaro & Prato, PLLC (Thomas M. Prato, Esq. and William Kalish, Esq.) for Defendants Southeast Obstetrics & Gynecology, P.C. and Rita Clement, M.D.
Christopher S. Ciaccio, J.
In this medical malpractice action, which has been pending since 2009, the Court has before it two related motions.
The Court notes that several submissions were filed in the NYSCEF system without an identifying motion number, and several submissions were filed with only one identifying motion number yet related to both motions. When a document is both supportive of one motion and also responsive to another, that submission should be filed twice (i.e. identified as related to each motion). To the extent that certain submissions constitute improper sur-replies pursuant to Local Rule No. 6 and 22 NYCRR 202.8-c, the Court will consider those submissions on the grounds that the issues raised in Motion Numbers 22 and 23 are related, and no additional facts are presented.
Defendant Philip Murphy, M.D. moves (NYSCEF Motion No. 22) for summary judgment dismissing all claims against him on the ground that the action was commenced after the expiration of the two and one-half year limitations period of CPLR 214-a.
Plaintiff Jacek Woloszuk, Individually and as Executor of the Estate of Ellen Woloszuk, deceased, opposes the motion and has brought a "cross-motion" (NYSCEF Motion No. 23) for an Order dismissing the statute of limitations defense interposed by Dr. Murphy as well as by Defendants Wende Logan-Young, M.D. and Wende Logan-Young d/b/a Elizabeth Wende Breast Clinic (collectively referred to as "EWBC").
Although a "cross"-motion against a party who is not a moving party is misnamed and inappropriate, for reasons relating to time the party moved against has to respond, here all parties have had sufficient opportunity to fully brief the issues. The "cross"-motion will not be denied on that basis.
FACTS
The following facts relevant to each motion are undisputed.
At the age of 37 Ellen Woloszuk was referred by her obstetrician, defendant Rita Clement, M.D. to EWBC, a radiology practice that specialized in breast imaging, to assess changes that Ms. Woloszuk had noticed in her left breast and axilla.
On March 16, 2006 Ms. Woloszuk had a diagnostic "work-up" at EWBC that included a mammogram, physical examination and ultrasound with Dr. Logan-Young.
In 2006 defendant Dr. Murphy was a radiologist employed by EWBC. There was deposition testimony describing him as being "on contract" with EWBC, but there is no dispute that he was an employee. There is no evidence that he was an owner of the Elizabeth Wende Breast Clinic, which was a proprietorship solely owned by defendant Dr. Logan-Young. Dr. Murphy read the mammogram as a "second reader." He saw (his opinion) no evidence of cancer.
No follow-up appointment was given to Ms. Woloszuk, however, she was given a pamphlet describing what she should do if she noticed changes in her breast. There was testimony by Dr. Logan-Young that she fully expected Ms. Woloszuk to return if she noticed any changes.
In November of 2006 Ms. Woloszuk, now pregnant with her fourth child, did notice changes in her breast. In December 2006, Ms. Woloszuk's left breast began to feel hard, and the nipple started pulling in. She contacted her obstetrician-gynecologist, Rita Clement, M.D. and requested a breast exam. During the call to Dr. Clement's office, Ms. Woloszuk mentioned that she had a positive home pregnancy test, and an appointment was scheduled for January 25, 2007. Ms. Woloszuk was seen by Sylvia Farnand, Dr. Clement's nurse practitioner. After the "pregnancy part" of her appointment, Ms. Woloszuk was given a breast exam. She was assured that the concern was not cancer, but she could have another mammogram if it would help make her feel better. She was referred to EWBC, but through no one's fault was not seen until Ms. Woloszuk was seen again by EWBC on March 2, 2007 and was diagnosed with cancer of the same breast in which she had noticed changes at the time of the March 2006 work-up. (See Ms. Woloszuk's deposition testimony, NYSCEF Document No. 167.)
The delay is not being alleged of having been part of any act of malpractice.
Ms. Woloszuk did not recall who made the appointment. EWBC records indicate that on February 16, 2007, an appointment was made for February 19, 2007. That appointment was rescheduled to March 2, 2007 due to Ms. Woloszuk hurting her back.
Dr. Murphy never saw Ms. Woloszuk after March 16, 2006.
On the key point of whether Dr. Murphy had any expectation that he would see Ms. Woloszuk after March 16, 2006, there is no evidence that he did maintain that expectation. Ms. Woloszuk died on November 24, 2015 of breast cancer.
It is alleged that the breast cancer was present at the exam in March of 2016 and should have been detected from the mammogram administered at that time.
PROCEDURAL HISTORY
The medical malpractice action was commenced by the filing of a Summons and Complaint on May 11, 2009. If measured from the date of the alleged malpractice (the faulty work-up, read and conclusions on March 16, 2006), this would have been eight months after the expiration of the two and one-half year statute of limitations of CPLR 214-a.
In his Answer, Dr. Murphy did not assert a statute of limitations affirmative defense.
Following the completion of discovery, plaintiff filed the note of issue, and on the eve of trial in March 2014, defendant Murphy moved to amend his Answer to add a statute of limitations affirmative defense. That motion was denied by the Hon. William Polito (J.S.C.), who held that the plaintiff would be prejudiced by the late amendment. The Fourth Department upheld Judge Polito's decision, ruling that "... plaintiff established in opposition to the motion that he would be prejudiced by the late amendment of the answer" ( Woloszuk v Logan-Young , 162 AD3d 1548, 1549 [4th Dept 2018] ).
The trial ended in a mistrial.
Following the death of Ms. Woloszuk, the parties then stipulated and agreed to an Order allowing Jacek Woloszuk, as Executor of the Estate of Ellen Woloszuk, to be substituted as party plaintiff in place of his wife. The Stipulation and Agreement also allowed Mr. Jacek to amend the complaint to add a cause of action for the wrongful death of Ellen Woloszuk. The caption was amended as well, and the primary change, in addition to the substitution, was the deletion of "Elizabeth Wende Breast Clinic LLC."
The "Verified Amended Complaint" was filed on September 11, 2017.
In their "Answer to the Verified Amended Complaint," defendants EWBC and Dr. Murphy each asserted as a "Sixth Affirmative Defense" that the "plaintiff's claims are barred by the applicable statute of limitations."
DISCUSSION
a. Murphy's Motion to Dismiss
As a preliminary matter, plaintiff Woloszuk opposes the motion to dismiss on the ground that the inclusion of a statute of limitations defense in the Answer to the Amended Complaint, when the same defense was not pled in the Answer to the original Complaint, is somehow not appropriate or barred.
That is not the state of the law (see Mendrzycki v Cricchio , 58 AD3d 171, 175 [2d Dept 2008] ["Accordingly, we hold that a defendant may raise a statute of limitations affirmative defense for the first time in an answer to an amended complaint served pursuant to CPLR 3025 (d) ]; see Boulay v Olympic Flame , 165 AD2d 191 [3d Dept 1991] ; Stella v Stella , 92 AD2d 589 [2d Dept 1983] ; see also Iacovangelo v Shepherd , 5 NY3d 184, 186 n [2005] ; cf. Addesso v Shemtob , 70 NY2d 689 [1987] ).
Woloszuk also objects to the timing of the motion, having been brought now after years of litigation and the production of thousands of pages of discovery materials.
However, discovery is ongoing. Plaintiff's counsel has served a notice for at least five more depositions. The trial has been adjourned as of this writing for several months (the tentative scheduled date is in May) and as recently as two weeks ago plaintiff requested more time in which to conduct further discovery, which likely will push the trial date out further.
The prejudice that existed when Murphy moved to amend his original Answer to include the statute of limitations defense, a motion made literally on the eve of trial, does not exist. There is more than enough time to conduct whatever discovery is necessary to oppose the motion to dismiss. Nor does the Court believe that the failure to include the defense in the original Answer was anything other than a mistake, not designed to gain a tactical advantage. Defense counsel had to know that any motion brought on the eve of trial risked being denied and that to take that risk would be foolish.
Also as a preliminary issue, defendant Murphy objects to any consideration of opposition papers, which were filed after 4:00 p.m. on the due date of all responsive papers.
In this case, Plaintiff filed and served a cross-motion at 11:04 p.m. on Thursday, September 16, 2021 less than seven (7) days prior to the time that the motion was scheduled to be heard.
Pursuant to Local Rule 2-a, as well as 22 NYCRR § 202.5-b, "E-filing must be completed by 4:00 p.m. of the date in question, including when the Court imposes a filing deadline." The return date was set by the Court for September 23, 2021, and the opposition papers should have been filed by 4:00 on September 16th. No excuse has been given for the late filing, nor was permission to file late requested, nonetheless, in light of the length of time this matter has been pending, the contentiousness between counsel over the duration of the pendency of the action, and the interest the Court has in determining matters on their merits, the late filing is excused. Additional time had been granted to submit reply papers after the 23rd, and the defendants have done so.
Turning to the substance of the motion, defendant Murphy met his initial burden of establishing entitlement to summary judgment by presenting proof that the action against him was commenced approximately three years and two months after alleged malpractice occurring on March 16, 2006, the date he read the mammogram (see Simons v Bassett Health Care , 73 AD3d 1252, 1254 [3d Dept 2010] ; Mendrzycki v Cricchio , 58 AD3d 171, 176 [2d Dept 2008] ; see generally Zuckerman v. City of New York, 49 NY2d 557, 562 [2011] ).
The burden then shifting to the plaintiff, it becomes incumbent upon him to demonstrate triable issues of fact as to whether the continuous treatment doctrine tolled the statute of limitations (see CPLR 214-a ; Massie v Crawford , 78 NY2d 516, 519 [1991] ; Waring v Kingston Diagnostic Radiology Ctr. , 13 AD3d 1024, 1025 [3d Dept 2004] ).
Plaintiff argues that the malpractice committed by Dr. Logan-Young and the Elizabeth Wende Breast Clinic should be imputed to Dr. Murphy, an employee of the clinic, and that it follows that the clinic's and Dr. Logan-Young's continuous treatment of Ms. Woloszuk is also imputed to Dr. Murphy. "[G]iven that Ellen was considered to be the Breast Clinic's patient, and not any individual physician's patient, the statute of limitations is not to be based upon the one date that Dr. Murphy read Ellen's mammogr[ ]am, but rather upon the last day that the Breast Clinic treated her; to wit : March 2, 2007" (Affidavit of Anne Rimmler, counsel to the plaintiff, NYSCEF Document No. 156 at paragraph 41).
However, even viewing the evidence in the light most favorable to the plaintiff ( Hill v St. Clare's Hosp. , 67 NY2d 72, 79 [1986] ) the record is entirely devoid of any proof that Dr. Murphy was, at least in this instance , anything other than analogous to a "radiologist in a remote location" who simply reads x-rays without ever seeing or coming into contact with a patient (Rimmler Affidavit at paragraph 46). Plaintiff's counsel asserts that Dr. Murphy's employment is as a "diagnostic radiologist, who sees patients and treats them ‘hands on’ " (Rimmler Affidavit at paragraph 46), but there is simply no record support for that assertion, thus distinguishing this case from Mendrycki v Cricchio (58 AD3d 171 [2d Dept 2008] ) and Clifford v Kates (169 AD3d 1375 [4th Dept 2009] ), each of which presented, it was held, at least a fact question, based upon relationships among practice members, as to whether the defendant physician had responsibility for all of the group's patients.
The Court in Mendrycki wrote that "As Cricchio conceded in his deposition testimony, patients treated at First Care were considered patients of the practice, not of a particular physician ( Mendrzycki v Cricchio , 58 AD3d 171, 176 [2d Dept 2008] ). Here, no testimony of such a concession is present.
Plaintiff argues that the facts before the Court are "analogous" to those in Goldschmidt v Cortland Regional Med. Ctr., Inc. (190 AD3d 1212 [3d Dept 2021] ). They are not. There, "To meet her shifted burden, plaintiff proffered evidence that, after each scan, [defendant] Gibbs recommended that decedent return for regular follow-up scans at specific intervals" ( Goldschmidt v Cortland Regional Med. Ctr., Inc. , 190 AD3d 1212, 1217 [3d Dept 2021] ).
Here there is no evidence that Murphy recommended regular follow-ups. In fact, he never saw Ms. Woloszuk. His role was solely as a second reader of Ms. Woloszuk's mammographic x-rays on March 16, 2006.
Plaintiff also attempts to distinguish Kaufmann v Fulop (47 AD3d 682, 684 [2d Dept 2008] ). But Kaufmann is nearly on "all fours" with the record here. As was stated, "the record contains no evidence that there was a relevant association between Seguritan and Fulop's group practice for purposes of the doctrine of continuous treatment" (Id . citing McDermott v Torre, 56 NY2d 399, 408 [1982] ; Teer v Queens-Long Is. Med. Group, 303 AD2d 488, 490 [2d Dept 2003] ; Solomonik v Elahi, 282 AD2d 734, 736 [2d Dept 2001] ; Yanello v Radiological Health Serv., 110 AD2d 834, 834-835 [2d Dept 1985] ).
As to whether Murphy's status as an employee or "under contract" is relevant, it has been held that "[t]he fact that a ‘physician is a shareholder, officer or employee of a professional service corporation does not make him vicariously liable for the malpractice of another doctor who is an officer, director and employee of the corporation’ " ( Bradt v. Hamel, 144 AD2d 921, 922 [4th Dept 1988], quoting Hill v. St. Clare's Hosp., 67 NY2d 72, 79 [1986] ; see also Patten v Hamburg OB/GYN Group, P.C. , 50 AD3d 1624, 1626 [4th Dept 2008], abrogated on other grounds by Phillips v Buffalo Heart Group, LLP , 160 AD3d 1495 [4th Dept 2018] ).
Here, Murphy is an employee of EWBC, a sole proprietorship, but that hardly creates a meaningful distinction of the rule stated in Bradt. Actually, it points to less involvement with the practice, and the connotation, let alone the evidence before the Court, is devoid of an "agency" relationship ( Allende v New York City Health & Hosps. Corp. , 90 NY2d 333, 339 [1997] ). No testimony establishes that Murphy directs and conducts the work of the practice or has anything to do with its management or the treatment of the patients other than conducting reads of studies.
If then Murphy cannot be held responsible for the actions of EWBC, then he should not, and cannot, be bound by the continuous treatment rendered by EWBC. In other words, however much EWBC expected Ms. Woloszuk to return for treatment, however much her subsequent treatment at EWBC was for the same condition, and however much Ms. Woloszuk expected to return in the event of a problem, that expectation did not extend to Dr. Murphy (see Yaniv v Taub , 256 AD2d 273, 275-76 [1st Dept 1998] ).
In Yaniv v. Taub the radiologist (and non-defendant) Mark Goldman, M.D., was an employee of a professional corporation, and correctly read an x-ray report and diagnosed the presence of a carcinomic mass in the patient's breast. However, the report was not transmitted to named defendant Dr. Taub, the physician in charge of the patient's care. The appellate court held that "Supreme Court was also correct to deny plaintiffs’ application to add Mark J. Goldman, M.D. as an additional defendant. While the doctrine of respondeat superior imposes liability on a corporation for the torts of its employees, the doctrine imposes no such liability upon the doctor, an employee of the corporation, for a tort committed by a fellow employee" (Yaniv v Taub , 256 at 275-76, citing Connell v Hayden , 83 AD2d 30, 39 [2d Dept 1981] ; Scher v. Kronman, 70 AD2d 354, 356 [2d Dept 1973] ).
The Second Department in Connell v Hayden (83 AD2d 30 [2d Dept 1981] ), declined, unfortunately, to review the question of whether, for the purpose of determining the date upon which plaintiffs’ cause of action accrued under the continuous treatment exception, it is the last date of treatment one doctor rendered and not the last date of treatment by his co-employee of the same professional corporation ( Connell v Hayden , 83 AD2d 30, 39 [2d Dept 1981] ).
Unfortunately, because that is the precise question before this Court. But the issue is considered and made clear in subsequent cases. The answer is that without an agency relationship, without testimony that a physician associated with a practice is a physician for all the group's patients, without testimony that Murphy had an expectation that Ms. Woloszuk would return and no testimony from Ms. Woloszuk that she expected to return to Dr. Murphy, the last date that Dr. Murphy treated Ms Woloszuk is the March 16, 2006 date. He cannot be held to have "continuously treated" her until the last treatment rendered by the clinic.
b. Plaintiff Woloszuk's Motion to Strike Affirmative Defenses
The Plaintiff has "cross-moved" to strike the Sixth Affirmative Defense of statute of limitations interposed in the Answer to the Amended Complaint on behalf of defendants Wende Logan-Young, M.D., Wende Logan-Young, M.D. d/b/a Elizabeth Wende Breast Clinic, and Philip Murphy, M.D.
EWBC is correct in stating that the motion is inappropriate as against the non-moving parties, Wende Logan-Young, M.D. and Elizabeth Wende Breast Clinic. A cross-motion is not a proper vehicle for seeking relief from a non-moving party ( Mango v Long Is. Jewish-Hillside Med. Ctr. , 123 AD2d 843 [2d Dept 1986] ; Kershaw v Hospital for Special Surgery , 114 AD3d 75, 81 [lst Dept 2013] ).
However, the Court in its discretion extended the time for each party to respond to pleadings and motion papers, the parties have done so, and the cross-motion will be considered here.
Turning to the substantive motion, here, the plaintiff Woloszuk has failed to establish entitlement to a judgment dismissing the statute of limitations defense as a matter of law.
In establishing that Ms. Woloszuk and defendant Young each had an expectation of continued treatment, the only evidence is a pamphlet given to Ms. Woloszuk after her work-up in March 2006, and the general directive given to all patients to follow-up if there is a change in condition. In fact, it was not anticipated that Ms. Woloszuk would return for another "screening" until she turned 40, three years out. Ms. Woloszuk had no follow-up appointment and was not given one (see Anderson v Central Brooklyn Med. Group , 56 AD3d 500 [2d Dept 2008] ).
As to whether there was any continued treatment sought by Ms. Woloszuk with EWBC or defendant Logan-Young, plaintiff argues that the visit with Dr. Somerville in March 2007 was a visit with the EWBC clinic, and by extension, with defendant Logan-Young. However, the record is absent as to what Dr. Somerville's relationship was with the clinic, and on that absence alone, a question of fact is presented as to whether Ms. Woloszuk continuously treated with the defendant Logan-Young and EWBC. Defendant Logan-Young's admission that Dr. Somerville's examination was a "continuation" of the left breast evaluation done in 2006 sheds little light on the nature of the relationship between the two.
As to whether Ms. Woloszuk sought treatment for the same condition in 2007 as in 2006, there is conflicting evidence that creates a material issue of fact preventing a determination that the second referral was for the same condition.
Dr. Logan-Young testified that the treatment in 2007 was for a "further evaluation of the condition of the left breast," the same condition area that was evaluated in 2006. Ms. Woloszuk had a family history of breast cancer (see NYSCEF Document No. 174 at page 40).
Although an objection was raised as to the form of the question that elicited the testimony, the Court, having reviewed the question-and-answer sequence, finds that the question was appropriate and not violative of an evidentiary rule. If considered to have been leading, the examining attorney was within her rights to ask a leading question of the opposing party. If deemed objectionable because it "assumed" certain facts, it did not. Rather, it stated certain facts as being "given," which the Court interprets as beyond dispute.
However, much is made of the difference in findings and complaints between the 2006 and 2007 examinations. In 2006, Ms. Woloszuk complained of "lumpy breasts, left more than right." By contrast, in 2007, Ms. Woloszuk was complaining of a left breast that had shrunken and hardened and the nipple had retracted. Also, in 2007, Ms. Woloszuk's left breast was visually different from her right, which was not true in 2006.
Suffice to say, Ms. Woloszuk was complaining each time of left breast issues, and whether the March 2007 was treatment for the same condition as she was seen in 2006 - which is the key question as to whether there was a deviation - should await determination by a jury on a material question of fact. Certainly, the area of concern and the nature of the complaints, although not identical, were sufficiently similar to the cancer ultimately diagnosed as to render the treatment on each occasion essentially for the same condition. As was stated by the Fourth Department regarding a similar factual scenario and alleged failure to diagnose cancer, "Merely because defendant[ ] did not diagnose plaintiff's decedent's condition as cancer is not a basis to find that [he was] not treating him for it if his symptoms were such as to indicate its existence and [he] nevertheless failed to properly diagnose it" ( Bonanza v Raj , 280 AD2d 948, 949 [4th Dept 2001], citing Hill v Manhattan W. Med. Group-H.I.P., 242 AD2d 255 [1st Dept 1997] ; see Green v Varnum, 273 AD2d 906, 907 [4th Dept 2000] ; see also Simons v Bassett Health Care , 73 AD3d 1252, 1254-55 [3d Dept 2010] ).
Perhaps more to the point is Flint v Zielinski (130 AD3d 1460, 1462 [4th Dept 2015] ), where the Fourth Department found a question of fact as to whether there was continuous treatment by an oncologist monitoring for the appearance of cancer in the patient's chest area , even though the lung cancer that ultimately went undetected - and became the focus of the malpractice action - was arguably an unrelated and different cancer from what she had been initially treated for, which was breast cancer.
Accordingly, the cross-motion to strike the Sixth Affirmative Defenses in the Answer to the Amended Complaint is denied. The trial jury will decide factual issues regarding whether treatment by Ms. Woloszuk with EWBC and Dr. Logan-Young was continuous for the purpose of tolling the statute of limitations.
WHEREFORE it is
ORDERED that the motion to dismiss the Amended Complaint as against defendant Philip Murphy, M.D. is GRANTED , and it is further
ORDERED that the Amended Complaint as against defendant Philip Murphy, M.D. is DISMISSED , and it is further
ORDERED that the cross-motion to strike the Sixth Affirmative Defense in the Answer submitted on behalf of Wende Logan-Young, M.D., Wende Logan-Young, M.D. d/b/a Elizabeth Wende Breast Clinic and Philip Murphy, M.D. to the Amended Complaint is DENIED ; and it is further
ORDERED that any additional relief requested by the respective parties, but not specifically addressed herein, is DENIED .