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Court Discusses Entitled of a Judgment According to Law


This is an action to recover damages for medical malpractice. The plaintiffs allege that the defendant a plastic surgeon, failed to timely diagnose plaintiff’s breast cancer. More specifically, plaintiffs allege in their Bill of Particulars that the defendants failed to appreciate the signs and symptoms of breast cancer, including the plaintiff’s complaint of a persistent, palpable left breast lump; failed to refer her for a sonogram and/or breast biopsy; failed to refer her to a breast surgeon; diagnosed her lump as due to an implant valve rather than a cancerous mass; gave the cancer an opportunity to spread and metastasize; and, failed to recommend a short interval follow up regarding her complaint of a breast lump. Plaintiffs claim that as the result of the delay in diagnosis, plaintiff suffered infiltrating ductal carcinoma, requiring left breast lumpectomy and axillary lymph node dissection, metastasis to three lymph nodes, chemotherapy and radiation. The plaintiffs maintain, inter alia, that defendant erroneously diagnosed plaintiff’s lump in her breast on November 11, 2004 as the valve of an implant, which, plaintiffs maintain, was actually a breast cancer lump that did not get diagnosed until nearly one year later in October, 2005.

On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.” Once the movant’s burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference.

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damages. In a medical malpractice action, a defendant doctor or hospital moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether it was negligent. More specifically, “on a motion by a defendant for summary judgment in a medical malpractice action, the defendant has the initial burden of establishing, prima facie, that he or she did not depart from good and accepted medical practice, or if there was such a departure, that it was not a proximate cause of the plaintiff’s injuries.”

If a defendant meets his burden, to defeat the application, a “plaintiff is obligated to submit competent, rebuttal medical evidence establishing that defendants deviated from the applicable standard of care, as well as a causal nexus between their conduct and her injuries.” Thus, “in opposition, a plaintiff must submit a physician’s affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor’s opinion that the defendant’s omissions or departures were a competent producing cause of the injury.'”

To establish proximate cause, the plaintiff must demonstrate sufficient evidence from which a reasonable person might conclude that it was more probable than not that’ the defendant’s deviation was a substantial factor in causing the injury.” Evidence must be presented “from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased her injury.” “Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury.”

The defendants have met their burden of establishing their entitlement to summary judgment thereby shifting the burden to plaintiff to establish the existence of a material issue of fact. In opposition, the plaintiff has submitted the affirmations of a plastic surgeon and a hematologist/oncologist, both of whom opine that the care and treatment rendered by defendant did not comply with the generally accepted standards prevalent in the medical field.

Plaintiff’s board certified plastic surgeon states that he was reviewed defendant’s records; plaintiff’s gynecological records; as well as the examinations-before-trial. He opines that defendant deviated from the generally accepted medical standards in his care and treatment of plaintiff as follows: A failure to obtain an accurate and complete history of familial cancers throughout the course of his treatment of plaintiff to facilitate his assessment and reassessment of her risk of breast cancer and a concomitant failure to recognize her increased risk; a failure to perform and document a complete and accurate breast examination on November 11, 2004, including the 4 o’clock area of her left breast and to determine the source of the nodules there; assuming that the only concern on November 11, 2004 was the location of the implant valve which was the result of a flipped implant; advising plaintiff not to have the ultrasound which was firmly recommended by the doctor; and, an overall failure to take adequate actions to rule in or out breast cancer at the November 11, 2004 visit by referring plaintiff to a breast surgeon and pursuing the ultrasound, or, in the alternative, undertaking responsibility to monitor plaintiff closely.

The plaintiff’s expert plastic surgeon notes that a thorough history of plaintiff’s familial history of cancers was not obtained by defendant nor were preoperative mammographies ordered. While defendant’s records reflect that plaintiff described her breasts as cystic, there is no record of a complete breast examination being done. Plaintiff’s expert plastic surgeon notes that there is no record of a complete breast examination being done when plaintiff returned to him on September 30, 2003, either. Similarly, there is no record of defendant’s monitoring plaintiff’s breast care such as yearly mammographies or updating her family history when she returned to him on March 2, 2004.

As for plaintiff’s November 11, 2004 visit, plaintiff’s expert plastic surgeon notes that defendant notes are devoid of any details regarding the lesion, including how long it had been present, its location, size, mobility, association with pain, the presence or absence of skin changes, and nipple discharge, and that there is no documentation of the last time the patient had a mammography or a breast exam or that her sister had been diagnosed with Stage IV cancer, which plaintiff testified she related to him and which, the expert opines, he should have learned by questioning her even if she did not volunteer it. In addition, plaintiff’s expert notes that there is no mention of her having seen the doctor. Plaintiff’s expert plastic surgeon opines “it is clear that on this date the issue was one that involved assessing a complaint of a lump in the left breast. Cancer had to be considered and ruled in or out. Defendant had an obligation to reassess his patient’s risk for breast cancer. He deviated from accepted standards of care in this regard.” He further opines that “simply because manipulation of the implant made what defendant claimed was the valve and the prominent area noticed by plaintiff appear to go away, this did not relieve defendant of his obligation to have the area further evaluated. This area was clearly an abnormality and should not have been assumed to be a valve.” He explains that knowing plaintiff’s family history, her dense breasts, and that he felt a cyst in November, 2004, defendant deviated from prevailing standards by not further assessing her and confirming that the valve was the entire problem. He explains “a plastic surgeon knows that he cannot know with certainty the location and placement of an implant placed under the pectoralis muscle by simply palpating it. There is too much at risk to assume that what is felt is part of the implant, as this case evidences.” As for plaintiff’s testimony that she did not feel the lump after defendant’s manipulated her breast, plaintiff’s expert plastic surgeon opines that “the movement of the implant may have effected its prominence but this did not in any way lessen the importance of having the ultrasound and following it closely with examinations.” Thus, it is his opinion that “the tumor, albeit smaller in size, was in plaintiff’s breast eleven months before and capable of diagnosis with ultrasound and/or MRI screening. Careful serial screening by a breast surgeon, or even defendant, would have revealed an increase in its size and this would have led to earlier diagnosis.” Simply put, he opines that he: “disagrees with the doctor that an experienced plastic surgeon can palpate an implant valve placed under the pectoralis muscle. He]disagrees that rotation of a round implant will cause a suspicious abnormality that a plastic surgery upon examination, and nothing more, can rule out as cancer. It is his opinion that it is arrogant to claim that a plastic surgeon can determine that there is no need for further testing or follow up examination based on one examination alone.”

Plaintiff’s expert plastic surgeon opines that had defendant performed a detailed and complete examination, he would have realized, like the doctor, that this area needed further evaluation, especially in light of plaintiff’s breast cancer risk and dense nodular breasts: She should have been referred to a breast surgeon for further testing including a sonogram and maybe an MRI, or defendant could have undertaken to monitor plaintiff’s more closely himself. And, plaintiff’s expert plastic surgeon opines that Dr. Neumann was negligent in telling plaintiff to forego an ultrasound and stop worrying. Plaintiff’s expert plastic surgeon notes that defendant’s records of plaintiff’s September 12, 2005 appointment lack details, which is a deviation from the standard of care. He also notes that where defendant found the nodule that day was precisely where plaintiff said it was and where the doctor found it nearly a year earlier.

Plaintiff’s expert Board Certified hematologist and oncologist attests to having also reviewed the pertinent medical and legal records. He, too, opines to a reasonable degree of medical certainty that defendant failed to completely assess plaintiff’s cancer risk. He agrees with plaintiff’s expert plastic surgeon that “defendant deviated from accepted care by assuming that the lump he felt was the implant valve, solely determined by his examination and manipulation of the implant. It was a deviation to rely on one examination alone in this woman with dense nodular breasts who was at risk for cancer.” He also believes to a reasonable degree of medical certainty that plaintiff’s cancer could have been diagnosed in November, 2004. He states that an ultrasound would have revealed the lesion before the cancer metastasized to her lymph nodes. He states that “as a result of the delay in the diagnosis of plaintiff’s cancer she has suffered a decrease in her chances for surviving her cancer by approximately 30%.”

Via their expert affidavits, the plaintiffs have clearly established the existence of material issues of fact requiring denial of the defendants’ motion.

Accordingly, the court held that this motion by defendants for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint is denied.

If you want to claim damages for injuries sustained, seek the assistance of Stephen Bilkis and Associates. They have office locations in Westchester County, Nassau County, Suffolk County, Manhattan, Queens, Staten Island, the Bronx, and Brooklyn.

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