Notice of Motion and Affidavit Annexed 1 Notice of Cross-Motion and Affidavit Annexed 2 Answering Affidavit and Exhibits 3 Replying Affidavit and Exhibits 4 UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION AND CROSS-MOTION IS AS FOLLOWS: Defendants, Quest Diagnostics, Inc. and Marina Cardillo, M.D.1 (collectively Quest), move to dismiss the complaint in their favor due to plaintiff’s failure to state a cause of action (CPLR 3211[a][7]), or in the alternative, for leave to amend their answers (CPLR 3025) to include the affirmative defense of documentary evidence and then dismiss the complaint on the basis of said documentary evidence (CPLR 3211[a][1]). Plaintiff opposes Quest’s motion and cross-moves for sanctions pursuant to 22 NYCRR §130-1.1. There is little dispute amongst the parties as to the following facts. In 2015, plaintiff was a gynecological patient of defendant-Dr. Gennadiy Grigoryan. Dr. Grigoryan referred plaintiff to defendant-Chelsea Diagnostic Radiology (CDR) for a biopsy which was performed on March 30, 2015, by defendant-Dr. Susan Beatty. That same day, the specimen was sent to Quest, where Dr. Cardillo interpreted it as being cancerous. On April 1, 2015, Quest faxed its Pathology Report containing the positive biopsy results to CDR. CDR subsequently faxed Dr. Grigoryan a Procedure Report on April 7, 2015, that indicated the biopsy was performed and which reported the positive findings contained in Quest’s Pathology Report. Then over one year later on April 27, 2016, CDR contacted Dr. Grigoryan requesting a prescription for a second biopsy of plaintiff’s right breast. According to Dr. Grigoryan, when he inquired further about the request, CDR faxed him Quest’s Pathology Report and told him plaintiff’s March 30, 2015, biopsy had been positive for cancer. Thus, on April 27, 2016, more than a year after her first biopsy, plaintiff was finally told by Dr. Grigoryan that she had breast cancer. In as much as Quest is seeking to utilize the same documentary evidence in order to dismiss this action under both CPLR 3211(a)(1) and (a)(7), the Court will first address Quest’s request to amend its answer to include a CPLR 3211(a)(1) defense. Absent prejudice or surprise, (McMcaskey v. NYC Health & Hospital, 59 NY2d 755 [1983]), amendments should be freely granted where they have merit. (Thomas v. City of NY, 74 NY2d 166 [1988].) Applying this standard to Quest’s request to amend, the following discussion clearly reveals that not only is there merit to the request, there is no real prejudice. As such, the answer by Quest is amended to include the 3211(a)(1) defense of documentary evidence. Given the amendment, the Court must now address Quest’s request for dismissal pursuant to CPLR 3211(a)(1) and (a)(7). In deciding a motion pursuant to CPLR 3211(a)(1), the Court must decide whether the documentary evidence in question utterly refutes plaintiff’s allegations, and conclusively establishes a defense as a matter of law. (Goshen v. Mutual, 98 NY2d 314 [2002].) And in deciding a motion pursuant to CPLR 3211(a)(7), the Court must decide whether the facts alleged in the complaint state a cause of action. In doing so, the Court is required to afford the pleadings a liberal construction, accept all of the facts alleged as true and accord plaintiff the benefit of every possible inference. (Frank v. DaimlerChrysler, 292 AD2d 118 [1st Dept 2002].) Where documentary evidence is produced that unequivocally refutes the factual allegations in the complaint (Skillgames v. Brody, 1 AD3d 247 [1st Dept 2003]), then those facts alleged are no longer presumed to be true or accorded every favorable inference. Instead, the question becomes whether plaintiff has a cause of action, and not whether one is stated (Guggenheimer v. Ginzburg, 43 NY2d 268 [1977]). Plaintiff’s claim for medical malpractice requires her to show that defendants departed from accepted standards of practice, and that such departure was a proximate cause of her delayed diagnosis. (Stukas v. Streiter, 83 AD3d 18 [2nd Dept 2011].) According to the complaint, due to defendants’ carelessness and negligence in rendering good and proper care, they failed to appreciate, consider, diagnose, suspect, treat and/or rule out breast cancer. The complaint goes on to allege that defendants’ failure to properly inform plaintiff she was positive for breast cancer resulted in plaintiff sustaining complications including untreated breast cancer. While these facts alone set forth the requisite elements of a medical malpractice claim, as previously mentioned, Quest has come forward with documentary evidence that it says unequivocally demonstrates that Dr. Grigoryan was aware of the positive biopsy results. Quest produced proof that it faxed its Pathology Report to CDR on April 1, 2015, and proof that CDR subsequently faxed Dr. Grigoryan a Procedure Report on April 7, 2015, showing the results of Quest’s report. And according to Dr. Grigoryan’s deposition testimony, he concedes receiving the CDR Procedure Report on April 7, 2015, but would not diagnose plaintiff without the Pathology Report. Quest also relies on Mosezhhnik v. Berenstein (33 AD3d 895 [2nd Dept 2006]), which held that a radiologist’s failure to mail plaintiff the results of mammography findings was not the proximate cause of a delayed diagnosis, given that plaintiff’s treating physician had received them and given the limited role of interpreting film and documenting findings the radiologist had in that action. Quest avers that even if it did breach a duty to communicate the results, nothing in the complaint supports the allegation that Quest could be the proximate cause of plaintiff’s injuries because Dr. Grigoryan was aware of the positive biopsy results. The documentary evidence produced by Quest clearly calls into question whether plaintiff has stated a cause of action. However, plaintiff argues that said documentary evidence does not unequivocally refute her claims as a matter of law. (David v. Hack, 97 AD3d 437 [1st Dept 2012].) And in opposition, plaintiff seeks to introduce evidence demonstrating that she has a cause of action (i.e., that Quest’s failure to send its Pathology Report directly to Dr. Grigoryan played a substantial part in her delayed breast cancer diagnosis). It should be noted that in deciding a motion for dismissal under CPLR 3211(a)(7), the Court may consider affidavits and documentary evidence submitted by plaintiff to remedy any defects in the complaint. (Leon v. Martinez, 84 NY2d 83 [1984].) While there is no defect per se in the instant complaint, plaintiff’s competing evidence is being utilized to remedy the issue of whether the evidence being proffered is equivocal or not. Plaintiff submits Dr. Grigoryan’s deposition testimony wherein he states that he will only inform a patient of a cancer diagnosis once he receives the Pathology Report from Quest, which never happened in this case. Dr. Grigoryan also testified that when he read CDR’s Procedure Report on April 7, he did not even realize that a pathology analysis had been performed on plaintiff’s specimen. Additionally, plaintiff refers to a Quest document entitled “Client Customized Requisition” which indicates that the Pathology Report was to be duplicated and sent to Dr. Grigoryan either by mail or fax; the form also contains Dr. Grigoryan’s phone and fax numbers. Finally, plaintiff includes deposition testimony from a Quest employee who testified that positive breast cancer results are supposed to be communicated telephonically to a patient’s physician. Plaintiff asserts that when taken together the foregoing evidence is sufficient to support her claim that Quest failed to properly inform plaintiff and Dr. Grigoryan of her positive breast cancer biopsy results leading to her delayed diagnosis. The evidence submitted by plaintiff in opposition suggests Quest may have deviated from accepted standards of practice by not sending a duplicate copy of its Pathology Report directly to Dr. Grigoryan, and that this departure was a proximate cause of plaintiff’s delayed diagnosis. As noted by plaintiff, unlike the radiologist in Mosezhhnik, in this case, Quest never provided the Pathology Report directly to Dr. Grigoryan. Whether the documentary evidence utterly refutes plaintiff’s allegations (CPLR 3211[a][1]), or whether the facts alleged in the complaint state a cause of action (CPLR 3211[a][7]), both entail a much more limited review as compared to the more in-depth analysis envisioned in a summary judgment (CPLR 3212) motion. In a summary judgment motion, the parties lay bare their proof and present evidentiary facts and expert opinions in an attempt to raise or eliminate issues of fact. (Morgan v. NY Telephone, 220 Ad2d 728 [2nd Dept 1995].) It is the expert opinions included in a summary judgment motion that would most likely address the obligations, if any, Quest had, either by industry and/or internal standards, to directly notify plaintiff and/or Dr. Grigoryan. A motion to dismiss based on documentary evidence or for failing to state a cause of action is not the appropriate vehicle to determine whether Dr. Grigoryan’s actions were appropriate or deviated from accepted standards. Therefore, the Court is satisfied that the evidence submitted by Quest is not unequivocal, and plaintiff has a cause of action. The aforementioned discussion should make it abundantly clear that the arguments raised by Quest presented challenging issues. Contrary to plaintiff’s suggestion, the making of the instant application does not amount to “frivolous conduct” (22 NYCRR §130-1.1[a]), and plaintiff’s cross-motion for sanctions is denied. Based on the foregoing, Quest’s motion to dismiss is denied in its entirety and plaintiff’s cross-motion for sanctions is denied. Plaintiff is directed to serve a copy of this decision/order with notice of entry by first class mail upon all parties within 30 days of receipt of copy of same. This constitutes the decision and order of this court. Dated June 24, 2020
