Opinion
Index No. I2009006547
10-05-2023
Jacek Woloszuk, Individually and as Executor of the Estate of ELLEN WOLOSZUK, deceased, Plaintiff, 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, Buffalo, New York (Anne B. Rimmler, William A. Quinlan and Elizabeth K. Bacher) for the Plaintiff JACEK WOLOSZUK, Individually and as Executor of the Estate of ELLEN WOLOSZUK, deceased. Underberg & Kessler LLP, Rochester, New York (Margaret E. Somerset) for the defendants Wende Logan-Young, M.D. d/b/a Elizabeth Wende Breast Clinic; and Philip Murphy, M.D. Brown, Gruttadaro & Prato, PLLC Rochester, New York (Thomas M. Prato and William Kalish) for the defendants Southeast Obstetrics & Gynecology, P.C. and Rita Clement, M.D.
Unpublished Opinion
Paul William Beltz, LLC, Buffalo, New York (Anne B. Rimmler, William A. Quinlan and Elizabeth K. Bacher) for the Plaintiff JACEK WOLOSZUK, Individually and as Executor of the Estate of ELLEN WOLOSZUK, deceased.
Underberg & Kessler LLP, Rochester, New York (Margaret E. Somerset) for the defendants Wende Logan-Young, M.D. d/b/a Elizabeth Wende Breast Clinic; and Philip Murphy, M.D.
Brown, Gruttadaro & Prato, PLLC Rochester, New York (Thomas M. Prato and William Kalish) for the defendants Southeast Obstetrics & Gynecology, P.C. and Rita Clement, M.D.
Christopher S. Ciaccio, J.
In this medical malpractice action, pending since 2009, the court by Decision and Order filed on November 17, 2022, dismissed the claims against defendants Wende Logan-Young, M.D. d/b/a Elizabeth Wende Breast Clinic ("EWBC defendants") and defendants Southeast Obstetrics & Gynecology, P.C. and Rita Clement, M.D. ("Southeast Ob/Gyn") because the plaintiff Jacek Woloszuk failed to file a Note of Issue by the deadline set forth in a "Second Supplemental Scheduling Order" dated July 28, 2022. That Order, which the court deemed a valid substitute for a "90 Day Demand," (CPLR 3216 [b]) read that a "Note of Issue shall be filed no later than Friday, September 30, 2022." It also stated that any extensions of the deadlines" must be made in writing."
Defendant Philip Murphy, M.D. has already been dismissed from the action.
Plaintiff now moves to vacate the dismissal on the grounds that 1) the dismissal was invalid because it did not specifically state that the failure to comply "would" result in dismissal of the action (citing Hilliard v Highland Hosp., 88 A.D.3d 1291, 1292 [4th Dept 2011]; Koscinski v St. Joseph's Med. Ctr., 24 A.D.3d 421, 421-22 [2d Dept 2005]); 2) plaintiff's counsel requested on September 23 an extension in writing (although it was opposed and never granted); and 3) there exists "justifiable excuse for the delay and a good and meritorious cause of action" (CPLR 3216 [e]).
LITANY OF SCHEDULING ORDERS AND PROCEEDINGS
It has been a defining characteristic of the history of this case that discovery requests and the ensuing (and seemingly inevitable) discovery disputes have occupied an unusually high proportion of the court's attention. Both sides have complained about the responses they have received to the many notices to produce, and twice the EWBC defendants have been sanctioned for the inadequacy of their response. Most recently, and in addition, it has been requests for extensions of discovery deadlines due to personal issues of plaintiff's counsel and consequent inability to conduct further depositions that have caused delays since the case was re-assigned to this court.
There have been no less than nine scheduling orders issued since the case was re-assigned in July 2020, and the court has been assiduously and even aggressively trying to bring the matter to trial, to close out the agony of uncertainty experienced by all parties for 14 years.
On August 28, 2020 (see NYSCEF Doc. Nos. 76 and 77) the court set a date for the completion of discovery and for a conference to set the date for the filing of the note of issue.
On April 23, 2021 (NYSCEF Doc. No. 115) the court issued a "Day Certain Order" for trial on November 12, 2021, which included an order that the note of issue "shall be filed no later than July 1, 2021."
On or about July 20, 2021 (NYSCEF Doc. No. 122) the court issued a "Second Amended Scheduling Order" that extended discovery deadlines, struck a note of issue that had been filed back in 2013, and stated that "an amended Note of Issue and Statement of Readiness shall be refiled on or before October 15, 2021..." The trial date was unchanged.
On or about September 3, 2021 (see NYSCEF Doc. No. 153) the court issued a "Third Amended Scheduling Order" extending discovery deadlines but leaving all else unchanged. It repeated that the note of issue and statement of readiness "shall be refiled on or before October 15, 2021." Plaintiff's counsel had requested by letter dated August 25, 2021 (NYSCEF Doc. No. 128) more time to review the documents provided by the defendants in the most recent document disclosure.
On or about October 6, 2021, the court issued a "Supplemental Scheduling Order" (NYSCEF Doc. No. 201), directing that the note of issue "shall be filed on or before November 10, 2021." By this time defendants had filed summary judgment motions.
On or about November 19, 2021 (NYSCEF Document 223) the court issued a "Fourth Amended Scheduling Order" which extended discovery deadlines and set a new date for the note of issue filing, which the court mandated "shall be filed on or before April 6, 2022."
By letter dated December 30, 2021 (NYSCEF Doc. No. 224) plaintiff's counsel again requested more time within which to complete discovery, citing illness among staff, family commitments and the volume of materials received.
Accordingly, the court issued on January 20, 2022, an "Amended Day Certain Order" (NYSCEF Doc. No. 231) which set a trial date of January 6, 2023, and directing that "An Amended Note of Issue shall be filed no later than Friday, July 22, 2022."
Following a virtual conference, the court extended discovery deadlines by Order dated February 9, 2022 (NYSCEF Doc. No. 234).
Plaintiffs' counsel wrote on July 8, 2022 (NYSCEF Doc. No. 235), requesting a further extension of discovery. The firm's efforts to "make determinations as to which individuals to depose" were hampered by the illness of one attorney, another attorney's husband had surgery, and the parent of another attorney working on the case passed away. Accordingly on July 28, 2022 (see NYSCEF Doc. No. 238) the court issued a "Second Supplemental Scheduling Order" and granted an extension of discovery to September 30, 2022. The Order stated, again for the seventh time, that a note of issue "shall be filed," this time by September 30, 2022.
The full text of that Order is as follows:
"Plaintiff's counsel having appropriately requested relief in the form of an extension of the Supplemental Scheduling Order, dated February 9, 2022; and the Court having issued an Amended Day Certain Jury Trial Order on January 20, 2022, which remains in full force and effect, except for the deadline relative to the filing of an Amended Note of Issue, it is hereby
ORDERED, that ALL discovery shall (emphasis added) be completed on or before September 30, 2022; and it is further
ORDERED, that an Amended Note of Issue shall (emphasis added) be filed no later than Friday, September 30, 2022; and it is further
ORDERED, that any request for an extension or amendment of this Second Supplemental Scheduling order must be made in writing, on notice and upon good cause shown, on or before September 23, 2022, and must be accompanied by a proposed Amended Supplemental Scheduling Order."
On September 23, 2022, plaintiffs' counsel wrote to further extend the time for discovery and the filing of the note of issue (each to November 30, 2022), claiming it needed additional time to depose "or take proper action" with respect to certain employees it identified within the most recent discovery disclosure from defendant Southeast Ob/Gyn (NYSCEF Doc. Nos. 240 and 241).
Defendant Southeast Ob/Gyn opposed counsel's letter of September 23, 2022 (see NYSCEF Doc. No. 242).
The court did not respond to the discovery extension request, and September 30, 2023, passed without the filing of the note of issue.
On November 1, 2022, counsel for the EWBC defendants wrote the court for its "direction," indicating that while not unprecedented that a defendant would file the note of issue, it would be unusual (see NYSCEF Doc. No. 243). On November 3, 2022, counsel for Southeast Ob/Gyn wrote making the same inquiry and indicated it would be willing to file the note of issue and try the case as directed in January 2023 (see NYSCEF Doc. No. 244).
The court by Decision and Order filed on November 17, 2022, dismissed the action in its entirety (NYSCEF Doc. No. 246).
Plaintiff filed a Notice of Appeal on December 15, 2022, and moved to vacate the dismissal by motion dated February 24, 2023.
VALIDITY OF COURT'S DISMISSAL ORDER
The Fourth Department has held, that "While an order may have the same effect as a valid 90-day demand, that order must advise as to the consequences for failing to comply, i.e., dismissal of the complaint" (Hilliard v Highland Hosp., 88 A.D.3d 1291, 1292, 930 N.Y.S.2d 390 [4th Dept 2011]), citing Koscinski v St. Joseph's Med. Ctr., 24 A.D.3d 421, 421-422 [2d Dept 2005] and Bort v Perper, 82 A.D.3d 692, 694 [2d Dept 2011]). In Hilliard, there was "no indication that plaintiff was advised that his failure to file a note of issue either by November 1st or November 24th would result in dismissal of the complaint" (Hilliard, 88 A.D.3d at 1292).
The court acknowledges that the "Second Supplemental Scheduling Order" did not contain language that explicitly stated something to the effect that "failure to file would result in dismissal."
Nonetheless, here there was a clear "indication" (Hilliard v Highland Hosp., 88 A.D.3d 1291, 1292 [4th Dept 2011]) that failure to file or to be granted an extension would be met with dismissal. Although the Order did not use the word "dismissal," the intent was clear over the course of the many scheduling orders. What else could "shall be filed" mean?
The Fourth Department has held (albeit in a different context) that "talismanic words" are not required when the meaning of a statement can be readily and simply gleaned from its intent (see People v Santiago, 218 A.D.3d 1270, 1271 [4th Dept 2023]; Singer Asset Fin. Co. v Bachus, 294 A.D.2d 818, 820 [4th Dept 2002]; People v Arnold, 96 N.Y.2d 358, 362 [2001]).
Here, the repeated instances where the court stated that the "note of issue shall be filed" by a certain date, provided plaintiff's counsel with a clear "indication" of the meaning of the word "shall," which was, that failure to file would result in a sua sponte dismissal. In this instance, in which eight scheduling orders for the filing of a note of issue were issued over the course of just two years mandating the filing the note of issue by a certain date, no talismanic phrase such as "failure to file will result in dismissal" would have given any more notice of what would happen if the note of issue was not filed by the deadline.
August 8, 2020 (see NYSCEF Doc. Nos. 76 and 77); April 23, 2021 (see NYSCEF Doc. No. 115); July 20, 2021 (see NYSCEF Doc. No. 122); September 3, 2021 (see NYSCEF Doc. No. 153); November 19, 2021 (see NYSCEF Doc. No. 223); January 20, 2022 (see NYSCEF Doc. No. 231); February 10, 2022 (see NYSCF Doc. No. 234); and July 28, 2022 (see NYSCEF Doc. No. 238).
It is held, then, that the plaintiffs did not need to be "advised" (Hilliard v Highland Hosp., 88 A.D.3d 1291, 1292 [4th Dept 2011]) that dismissal would (emphasis added) result from the failure to file the note of issue.
This court's dismissal of the action for failure to file the note of issue is consistent with the holding of the Court of Appeals in Cadichon v Facelle (18 N.Y.3d 230 [2011]). There the trial court had issued an Order directing the plaintiff to resume prosecution and file the note of issue within 90 days, adding that failing to file" will serve as a basis for the court, on its own motion, to dismiss the action for unreasonably neglecting to proceed" (id. at 234). It did not state, as in Hilliard v Highland Hosp. (88 A.D.3d at 1292) that failure to file would result in dismissal.
Plaintiff failed to file by the deadline, and the court dismissed the action. In doing so, it failed to notify the parties. The Court of Appeals reversed and reinstated the action, not because the trial court summarily dismissed the action pursuant to its Order, but because the clerk (my emphasis) of the court had "ministerially" (id. at 236) dismissed the action without notice to the parties, who didn't find out about the dismissal for several months. It was the lack of "judicial involvement" (id.), of a "formal order" (id.), and "notice to the parties" (id.) that formed the basis for the court's decision, not the summary dismissal.
Here, notice was given to the parties, and the court issued a formal dismissal order that set forth the specific conduct and pattern of delay giving rise to the dismissal (see Cadichon at 236, quoting CPLR 205 [a]).
In an admonition applicable here, Judge Eugene Pigott, writing for the majority, warned that "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously... [and] that disregard of deadlines should not and will not be tolerated" (Cadichon v Facelle, 18 N.Y.3d 230, 236 [2011], quoting Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 N.Y.3d 514, 521 [2005]).
Equally applicable is the admonition of Judge Victoria Graffeo, in dissent, that "The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent" (Cadichon v Facelle, 18 N.Y.3d 230, 243 [2011]).
Moreover, as in Cadichon, plaintiff here has not suffered any detrimental effect from the dismissal. As Judge Graffeo pointed out, "the fact that the prior dismissal was not preceded by such a motion could not have had any material effect on the rights of the parties. If Supreme Court had sua sponte initiated a motion on notice to dismiss plaintiffs' claim based on failure to comply with the 90-day demand as the majority suggests should have occurred, plaintiffs would still have had to meet the CPLR 3216 standard in order to avoid dismissal-the same standard Supreme Court applied to determine the motion to vacate the order of dismissal" (Cadichon v Facelle, 18 N.Y.3d 230, 237 [2011]).
The same point applies here. If the court, having waited over a month to act on yet another lull in the advancement of the case, had made a motion dismissing the action, the plaintiff would still have had to come forward with a "justifiable excuse... and a meritorious cause of action" (CPLR 3216[e]).
The delays in this case make it relatively unique, but akin to at least the holding in Dhaliwal v Long Boat Taxi, Inc., 305 A.D.2d 449 [2d Dept 2003], where the Second Department affirmed the lower court's denial of a motion to extend the time to complete discovery and file a note of issue, citing a four-year delay in which to conduct discovery.
Accordingly, the court's dismissal order is deemed valid.
The focus now turns to whether the plaintiff has shown a "justifiable excuse... and a good and meritorious cause of action" (CPLR 3216 [e]) to allow the action to be restored to the calendar with respect to the EWBC defendants and/or the Southeast Ob/Gyn defendants.
JUSTIFIABLE EXCUSE
"The determination whether the moving party's excuse is reasonable lies within the sound discretion of the court" (Vogt v Eberhardt, 163 A.D.3d 1514, 1515 [4th Dept 2018], citing Abbott v Crown Mill Restoration Dev., LLC, 109 A.D.3d 1097, 1099 [4th Dept. 2013]).
The Beltz law office suffered an extraordinary and tragic series of illnesses and personal difficulties all occurring near to the time that the note of issue was due.
The court accepts as credible attorney Anne Rimmler's recitation of the problems faced by the firm's staff.
It would certainly have made the court's dismissal order and the extensive subsequent motion practice unnecessary if the court had been informed of the burdens with which the attorneys in the office were dealing.
Nonetheless, while it is true that the Beltz office continued to represent other clients and fulfill its responsibilities in pending litigation through the period before and after the deadline for filing the note of issue, the veritable avalanche of personal issues that arose at that time provide good cause for missing the deadline.
"It is well established that the illness of an attorney may constitute a reasonable excuse for a default" (Loucks v Klimek, 108 A.D.3d 1037, 1038 [4th Dept 2013] [quotations and citations omitted]).
Again, the court accepts as truthful the assertion that the failure to file was entirely inadvertent and due to illness, therefore, in its discretion finds that there was a reasonable and justifiable excuse for the delay in filing the note of issue (see Wells Fargo Bank, N.A. v Dysinger, 149 A.D.3d 1551, 1552, [4th Dept 2017]).
MERITORIOUS CAUSE OF ACTION
"A party seeking to vacate an order or judgment on the ground of excusable default must offer a reasonable excuse for its default and a meritorious defense to the action" (Vogt v Eberhardt, 163 A.D.3d 1514, 1515 [4th Dept 2018], quoting Wells Fargo Bank, N.A. v Dysinger, 149 A.D.3d 1551, 1552 [4th Dept 2017]).
The burden on the moving party is to establish by "nonspeculative" (Sutton v Williamsville Suburban, LLC, 174 A.D.3d 1467, 1468 [4th Dept 2019]) and admissible evidence a prima facie case of liability (Vogt v Eberhardt, 163 A.D.3d 1514, 1515 [4th Dept 2018]).
"Where the moving party meets that burden, courts have a liberal policy with respect to vacating defaults" (Bilodeau-Redeye v Preferred Mut. Ins. Co., 38 A.D.3d 1277, 1277 [4th Dept 2007]).
"[C]onclusory assertions without any evidentiary support" (New St. Assoc., LLC v Gach, 173 A.D.3d 749, 751 [2d Dept 2019]) in the affidavit of a medical expert are "insufficient to demonstrate that the plaintiff had a potentially meritorious cause of action" (Addison v Avshalumov, 153 A.D.3d 477, 478 [2d Dept 2017]).
Issue common to EWBC and Southeast OG GYN - Causation
"The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice, and evidence that such deviation or departure was a proximate cause of injury or damage'" (Rawlins ex rel. Rawlins v St. Joseph's Hosp. Health Ctr., 108 A.D.3d 1191, 1192 [4th Dept 2013] [internal quotation and citation omitted]).
To establish a meritorious cause of action, plaintiff has submitted the affirmation of Aaron Chevinsky, M.D., a physician licensed to practice medicine in New York and several other states. He is a "surgical oncologist specializing in breast cancer" and board-certified in general surgery.
Plaintiff also submits the affidavit of Douglas Boxer, M.D. a physician licensed to practice medicine in the State of New Jersey and board-certified in diagnostic radiology.
Neither submission establishes, except by stating unsupported conclusions, that Mrs. Woloszuk had cancer in March 2006 and/or that the cancer discovered in 2007 was a metastasis of a cancer present and discoverable in 2006. Put another way, no causal connection is established between the alleged deviations from acceptable standards of practice and the death of Mrs. Woloszuk. Each opinion takes it as an assumption that the cancer diagnosed in 2007 was a cancer present in March 2006, an assumption for which there is no foundation nor even explanation in either of the expert submissions.
Dr. Chevinsky states that when Mrs. Woloszuk was seen in March 2006, she had cancer, as in "[t]he negligent failure to diagnose the breast cancer in March 2006..." (NYSCEF Doc. No. 281, paragraph 26) and "[t]he failure to timely diagnose the breast cancer in March 2006..." (NYSCEF Doc. No. 281, paragraph 21).
However, he does not state on what basis he is able to draw the conclusion that she had cancer in March 2006.
It could be that he is relying on the opinion of the expert radiologist, Dr. Boxer, who states similarly that Mrs. Woloszuk had cancer in March 2006, as in "Mrs. Woloszuk's left breast malignancy was left undetected in March 2006... which contributed to over a year delay... allowing the cancer to continue to grow and spread" (NYSCEF Doc. No. 282, paragraph 14).
However, Dr. Boxer also does not state the basis for concluding that the "abnormalities" (actually a "nodule" and an "island") in Mrs. Woloszuk's left breast in 2006 were in fact cancerous or malignant. He discusses the various diagnostic modalities that could (and in his opinion should) have been employed, however, nowhere does he state, for instance, that upon his review of the analog mammography, the ultrasound, and the results of the physical examination, that Mrs. Woloszuk actually had cancer in 2006, or even that the results of those diagnostic tools were, for example, "highly suspicious" for a malignancy. He does not state that the analog mammography and/or the ultrasound were read incorrectly. He does not state that digital mammography, which according to him should have been utilized, would have detected the malignancy (which he assumes was present) or given a reason to do a biopsy. Nor does he discuss and contradict the belief of defendant Wende Logan-Young that the left breast cancer diagnosed in 2007 was unrelated to the findings detected in March 2006.
Even keeping in mind that public policy favors determinations on the merits, and that the court is to apply a liberal standard, the court cannot escape the conclusion that plaintiff has failed to make a prima facie case by "non-speculative" (Sutton v Williamsville Suburban, LLC, 174 A.D.3d 1467, 1468 [4th Dept 2019]) evidence establishing that the findings detected in March 2006 - a "nodule" and an "island" - were malignancies that metastasized and discovered in March 2007. In other words, plaintiff has failed to establish a prima facie case of causal connection between the deviations in March 2006 and the death of Mrs. Woloszuk.
At oral argument the court put the question to plaintiff's counsel: How do you prove that the cancer in 2007 was the same cancer alleged to be present in 2006? Plaintiff's counsel stated, "The biopsy in 2007 of the lump in the breast was in the same general region as what was detected in 2006. Isn't that more than just a coincidence?" However, "more than a coincidence" is not prima facie proof.
Paraphrasing in the absence of a transcript.
On the lack of causal connection alone, the proof fails to establish a meritorious cause of action.
Issue As To Southeast Ob/Gyn - Standard Of Care
With respect to the defendant Southeast Ob/Gyn, even if a causal connection were established, the submissions do not state the standard of care.
"The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community (emphasis added) standards of practice, and evidence that such deviation or departure was a proximate cause of injury or damage" (Rawlins ex rel. Rawlins v St. Joseph's Hosp. Health Ctr., 108 A.D.3d 1191, 1192 [4th Dept 2013] [internal quotation and citation omitted]).
"[E]vidence that a physician conformed to accepted community standards of practice usually insulates him from tort liability (Toth v Community Hosp. at Glen Cove, 22 N.Y.2d 255, 262 [1968]) (internal citations omitted).
As noted above, there is no evidence other than a conclusory opinion that the alleged deviation on the part of Dr. Clement was a "proximate cause of injury or damage" (id.).
Dr. Chevinsky's affirmation fails to establish a meritorious cause of action against Southeast Ob/Gyn, because nowhere does he, a board-certified oncologist, state his familiarity with the standard of care of an obstetrician/gynecologist in this "community" (id.).
Plaintiff argues that Dr. Chevinsky does not need to be practicing as an obstetrician/gynecologist to render an admissible opinion as to whether Southeast Ob/Gyn deviated from the standard of care. Rather, his opinion goes to weight, not admissibility, citing Sanchez v Van Riper (217 A.D.3d 1358, 1359 [4th Dept 2023]), in which the court stated:
"It is well recognized that a plaintiff's expert need not have practiced in the same specialty as the defendants" (Payne v. Buffalo Gen. Hosp., 96 A.D.3d 1628, 1629 [4th Dept. 2012]), and "any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony" (Stradtman v. Cavaretta [appeal No. 2], 179 A.D.3d 1468, 1471 [4th Dept. 2020] [internal quotation marks omitted]). (Sanchez v Van Riper, 217 A.D.3d 1358, 1358-59 [4th Dept 2023]).
However, a distinction can be drawn between the facts in this case and in Sanchez, and between this case and others which have held similarly. In each case the expert, although not certified in the same specialty of the named defendant, testified that he "had the requisite skill, training, education, knowledge or experience from which it can be assumed that [the expert's] opinion [ ]... [is] reliable" (Sanchez v Van Riper, 217 A.D.3d 1358, 1359 [4th Dept 2023], citing Leberman v Glick, 207 A.D.3d 1203, 1205 [4th Dept 2022] [internal quotation marks omitted]).
Thus, in Sanchez the expert was a board-certified emergency room physician and was asked to offer an opinion on the standard of care of physician assistants in a hospital emergency department, with which he was obviously familiar.
In Payne v Buffalo Gen. Hosp. (96 A.D.3d 1628, 1629 [4th Dept 2012]) the expert was a physician with a specialty in neurology and had practiced in emergency room settings in Western New York, which the court considered adequate to qualify him to testify as to neurosurgery and emergency medicine.
In Diel v Bryan (71 A.D.3d 1439, 1440 [4th Dept 2010]), the court held that an anesthesiologist could testify as to the standard of care of a dentist who negligently administered anesthesia to a patient, since it was shown that the standard of care for the administration of anesthesia was the same for dentists during a dental procedure as for an anesthesiologist in a medical procedure.
In Fay v Satterly (158 A.D.3d 1220, 1221 [4th Dept 2018]) an anesthesiologist offered an opinion concerning the standard of care of a primary care physician as to a presurgical clearance examination. Citing to Diel v Bryan, 71 A.D.3d 1439, 1440 (4th Dept 2010), the court implied that the anesthesiologist was qualified to render an opinion because it was established that the standard for any preclearance examination is the same whether conducted by a primary care physician or an anesthesiologist.
Accordingly, while it is established law, as stated in Moon Ok Kwon v Martin, 19 A.D.3d 664, 664 [2d Dept 2005] that "A physician need not be a specialist in a particular field to qualify as a medical expert," it is equally true that a submission or testimony must at least establish a basis for familiarity with the standard of care of the specialty of the defendant physician.
As the Appellate Division, Fourth Department stated in Chillis v Brundin, 150 A.D.3d 1649, 1650 (4th Dept 2017) (cited by Southeast Ob/Gyn), "Although a medical expert need not be a specialist in a field to offer an opinion concerning the accepted standards of care in that field, a physician offering an opinion outside his or her particular field must lay a foundation to support the reliability of that opinion" (citing Shectman v Wilson, 68 A.D.3d 848, 849-850 [2d Dept 2009]; and Diel v Bryan, 71 A.D.3d 1439, 1440 [4th Dept 2010]; see also Korszun v Winthrop Univ. Hosp., 172 A.D.3d 1343, 1345 [2d Dept 2019]: "The expert affirmation proffered by the plaintiffs failed to lay the requisite foundation for the expert's asserted familiarity with the applicable standards of care in the fields of geriatric medicine and wound care" (citing Galluccio v Grossman, 161 A.D.3d 1049, 1052 [2d Dept 2018]; Mustello v Berg, 44 A.D.3d 1018, 1018-1019 [2d Dept 2007]; Behar v Coren, 21 A.D.3d 1045, 1046-1047 [2d Dept 2005])).
Here, no foundation has been laid for the admissibility of Dr. Chevinsky's opinion as to the standard of care of an obstetric/gynecological practice in this community. The court cannot assume that familiarity with diagnostic modalities is the same as familiarity with the role played by a primary care physician such as an obstetrician/gynecologist. Dr. Chevinsky does not state, for instance, that he worked alongside or in conjunction with gynecological offices as part of his oncology practice, or that he routinely regularly consults with them. Nor does he state that he is familiar with the practice of obstetrics/gynecology in this community, a point made by defendant Rita Clement, M.D. in her affirmation.
Although licensed to practice in New York, he does not state how much of his practice, if any, involved rendering treatment to patients in New York, let alone Rochester.
And no allegation is made that Dr. Clement did not exercise her best judgment (see Toth v Community Hosp. at Glen Cove, 22 N.Y.2d 255, 262 [1968]: "a second principle... in medical malpractice cases... demands that a physician should use his best judgment and whatever superior knowledge, skill and intelligence he has... The necessary implication of this latter principle is that evidence that the defendant followed customary practice is not the sole test of professional malpractice").
Rather, Dr. Clement is faulted for not doing everything possible "to absolutely rule out" that what she felt upon her examination was cancerous, such as "ensuring" that Mrs. Woloszuk return to the clinic for "further diagnostic work-up" within thirty days, even after the breast clinic had found the "nodules" to be "benign."
Nowhere does he state that a return diagnostic evaluation within thirty days, after a report from a breast cancer clinic that the "nodule" and "island" were not malignancies, was an essential part of the good and accepted practice of medicine in this community, a point made logically by Dr. Clément when she asserted that "it would be impossible for a palpable cancerous tumor to have been present at any repeat breast examination performed by me one month after March 9, 2006. Any suggestion to the contrary is medically and scientifically untenable."
Highlighting his lack of familiarity with the practice of an obstetric/gynecological office here in Rochester, Dr. Chevinsky claims Dr. Clement violated the "standard of care" for not referring Mrs. Woloszuk directly to a breast surgeon for a biopsy, and then for not advising Mrs. Woloszuk not to get pregnant until cancer was "absolutely" ruled out. It undisputed that the EWBC practice is "not just a radiology practice which only performs mammography. In 2006, it was a breast care clinic that performed biopsies of suspicious masses detected during the evaluations of its patients for possible breast cancer" (Affidavit of Rita Clement, M.D., NYSCEF Doc. No. 308, paragraph 40). Thus, it cannot be said the referral to a breast surgeon was the only means for Dr. Clement to perform her obligation to act in accordance with good and accepted practice of medicine in this community.
Accordingly, the plaintiff has failed to make out a meritorious cause of action as against Southeast Ob/Gyn for failing to establish a basis for the standard of care in this community of an obstetric/gynecological practice.
Issue As To EWBC - Standard of Care
Even if Mrs. Woloszuk had cancer in March 2006, the opinions of Drs. Boxer and Chevinsky do not establish, other than by conclusory statement, deviations of the standard of care of a breast cancer diagnostic practice such as that maintained by the EWBC defendants.
Dr. Boxer states that in March in 2006, breast cancer "could be detected with multiple modalities," and that "Utilization of the aforesaid modalities was within the relevant standard of care as it existed in March of 2006 to detect breast cancer" (NYSCEF Doc. No. 282, paragraph 4). The modalities to which he is referring are breast magnetic resonance imaging ("MRI"), automated breast ultrasound, biopsy, and digital mammography.
There are several problems with that statement.
One is that Dr. Boxer does not inform the court how he knows what the standard of care was in 2006. He does not say, for instance, when he graduated, when he was licensed to practice or how long he has been practicing.
Secondly, Dr. Boxer's opinion is premised on inaccurate facts.
He states that the "physical findings" revealed "abnormalities." There were no abnormalities. While it is true Dr. Clement felt a "glandular island" and a "left axillary nodule," Dr. Young conducted a physical examination, but no lumps were palpable. She wrote in the chart, "I could palpate no abnormality in either breast." The absence of lumps was reasonably and credibly explained by the fact that Mrs. Woloszuk, who was breast-feeding at the time, was told to nurse her baby prior to the examination, since "lumps" or nodules are often explained by the failure of a breast to express all the milk.
It is a conclusory assertion, and inherently illogical on its face, that Dr. Young should have relied on Dr. Clément's physical examination and not her own to determine whether to refer Mrs. Woloszuk for a biopsy or other testing.
He refers to Mrs. Woloszuk's "elevated risk factors for breast disease" including "breast density and a family history" (NYSCEF Doc. No. 282, paragraph 10). The only family history is a grandmother who had cancer. No first-degree relative with cancer was reported. Again, the statement, the "EWBC defendants deviated from the relevant standards of radiologic care by not taking into consideration Mrs. Woloszuk's... family history of breast disease..." is factually inaccurate. It was taken into consideration, and it was determined that further diagnostic testing (such as a biopsy) was not required.
He asserts that the EWBC defendants told Mrs. Woloszuk no further investigation was necessary until she turned 40 years of age. That is also inaccurate. It is uncontradicted that she was told to return if she felt more and new "lumps" or if existing lumps became larger.
Third, Dr. Boxer's opinion that the EWBC defendants violated the standard of care is conclusory.
He states that digital mammography was the standard of care but cites no authority or any record of his experience in 2006 in support. It is uncontradicted - and easily verifiable - that digital mammography, while available in 2006, was still not widely used and not guaranteed to deliver a more accurate read than analog mammography, at that time, 17 years ago. That Mrs. Woloszuk met the criteria for digital mammography or even that the EWBC defendants were familiar with the technology, is very different from saying that digital was the standard of care.
He states that the EWBC defendants should have exhausted "all available technologies," yet additional "modalities" - meaning a biopsy and an MRI - were in no way indicated. The examination was normal and showed possible calcifications that were "benign." Dr. Boxer again points to no authority, no comparable experience, and no factually accurate evidence to support his conclusion that more diagnostic testing was required.
It is common sense and indisputable that "utilization" of various modalities to diagnose breast cancer is part of the good and accepted practice of a breast clinic, however, it is equally common sense that modalities should be used only when indicated. Here, the results of the modalities Dr. Young did utilize - history, physical examination, double-blind read of analog mammography, and an ultrasound - revealed no abnormalities.
It is an imperfect analogy, but if one experiences atrial fibrillation, the use of "all diagnostic modalities," such as open-heart surgery, is not required unless indicated.
CONCLUSION
Although the court's last directive to file the note of issue did not contain language to the effect that the case "would" be dismissed, the proceedings here have been unique. The case has been pending for 14 years, but judging from the submissions on the instant motion, the theories of liability and the defenses are not particularly complex. Either digital mammography was the standard of care in 2006, or it was not. Either the standard of care required in 2006 an ob/gyn office and a breast cancer diagnostic center to use every diagnostic modality available to "absolutely" rule out cancer, even in the absence of positive findings, or it did not. Either cancer was observable in March 2006, or it was not.
At the time the case was assigned to this court, the case had already been tried twice and a note of issue and certificate of readiness had been filed by the plaintiff in which he affirmed that all discovery had been completed, so one could reasonably assume that by July 2020, when the case was assigned, that the parties were ready for trial. Instead, and subsequently, plaintiff made five requests for extensions of discovery deadlines, seeking CAD reports, mammography reports, "metadata," and the audit trail. As the court expressed at oral argument, some of this has seemed relevant, some has not.
But regardless of who was at fault as to why discovery of these materials had not been completed at the time of the first trial, ongoing discovery in a case that is deemed relatively simple and has been pending for 14 years is not something the court sees every day, not even in surrogate court (over which this court also presides).
The unique circumstances take this case out of the precedents requiring a scheduling order to explicitly state that the case will be dismissed if the note of issue is not filed. After having been directed to file the note of issue by eight separate orders, the plaintiff had sufficient notice that the case would be summarily dismissed if he failed to file.
Thus, the motion to vacate the dismissal on the ground that the language in the scheduling order was not explicit as to when dismissal would occur is DENIED.
Further, the motion to vacate the dismissal on the ground of justifiable excuse for failing to file and a meritorious cause of action is DENIED. The assertion that the cancer that was discovered in 2007 was a cancer present in 2006 is conclusory.
Additionally, no foundation was laid for an opinion as to the standard of care of a local ob/gyn office in 2006 or breast cancer diagnostic center, nationally or locally. The affirmation of the plaintiff's radiologist was premised on inaccurate facts and was conclusory.
The plaintiff has not sustained his burden of prima facie showing a meritorious cause of action, even under a liberal standard.
Accordingly, the motion to vacate on the ground of the existence of a justifiable excuse and meritorious cause of action is DENIED.
The motion to vacate the dismissal is DENIED in its entirety.