The following papers numbered 1 to 3 read on this motion. PAPERS NUMBERED NOTICE OF MOTION, AFFIRMATIONS AND EXHIBITS 1 ANSWERING AFFIRMATIONS AND EXHIBITS 2 REPLY AFFIRMATION AND EXHIBITS 3 UPON THE FOREGOING CITED PAPERS, THIS MOTION IS GRANTED AS FOLLOWS: Defendant, Lourdes Merlo, M.D., seeks summary judgment (CPLR 3212) and dismissal of plaintiffs’ complaint, which essentially alleges an erroneous diagnosis of stage IV pancreatic cancer leading to an erroneous admission to hospice. From December 2012 through November 2013, plaintiff, Adrian Candelario (Adrian), underwent several tests at the Ralph Lauren Cancer Center to rule out pancreatic cancer. The Ralph Lauren Cancer Center never diagnosed Adrian with pancreatic cancer. Adrian presented to St. Barnabas on July 11, 2014, as a 58-year-old homeless man suffering from severe abdominal pain, weakness, cachexia and, according to St. Barnabas, stage IV pancreatic cancer. The attending physician, Dr. Winograd, arranged a hospice consult, and that evening Adrian was evaluated by the hospice nurse and admitted to the hospice floor. The hospice physician, Dr. Annan, evaluated Adrian the next morning, and certified Adrian for an initial period of ninety days secondary to the established diagnosis of stage IV pancreatic cancer. After only forty days, Dr. Annan transferred Adrian to MJHS Hospice and Palliative Care (MJHS Hospice). Dr. Merlo, a locum tenens physician (a physician working a temporary assignment a/k/a moonlighting) who herself works for an outside agency, covered two eight-hour shifts (i.e., July 20 and August 20, 2014) for Dr. Annan. The various causes of action included in the complaint are, inter alia, negligence, medical malpractice, lack of informed consent, loss of services, false imprisonment, and negligent/intentional infliction of emotional distress. The initial burden is on Dr. Merlo, as the movant seeking summary judgment, to make a prima facie showing of an entitlement to same as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v. Prospect, 68 NY2d 320 [1986].) If she does, then the burden shifts to plaintiffs to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial (id.), and denial of summary judgment. In support of Dr. Merlo’s motion, is an expert affirmation from Dr. Gary Tatz, who is board certified in hospice and palliative medicine. According to Dr. Tatz, Dr. Merlo’s role as a moonlighting palliative care physician on the dates in question was to maintain the patients she was assigned to by Dr. Annan, namely, to keep them stable and provide relief from pain and other symptoms. And as testified to by Dr. Annan, Adrian carried the diagnosis of pancreatic cancer from the date of admission through discharge. Dr. Tatz opines that the standard of care did not call for Dr. Merlo to review scans and studies from prior experts in the relevant fields — such as oncology and radiology — but to manage patients already admitted and accepted to hospice pursuant to an established diagnosis. And consistent with the aforementioned standard of care, with respect to Adrian, Dr. Tatz states that Dr. Merlo’s role was to maintain his care over the course of the eight-hour shifts. Dr. Merlo appropriately examined and observed Adrian to confirm that he was stable and in no acute distress, inquired as to any pain and whether the medication was helping. According to Dr. Tatz, Dr. Merlo appropriately concluded that Adrian was responding favorably to his current treatment regiment in the unit. He opines that Dr. Merlo carried out her role as a moonlighting palliative care physician in a manner entirely consistent with the standard of care. As for lack of informed consent, there is no dispute that Adrian signed consent forms at St. Barnabas. Moreover, as Dr. Merlo notes, plaintiffs’ claim of an inaccurate diagnosis cannot form the basis for lack of informed consent, (Lewis v. Rutkovsky, 153 AD3d 450 [1st Dept 2017]), especially where there were no invasive diagnostic tests performed. (Janeczko v. Russell, 46 AD3d 324 [1st Dept 2007].) Dr. Merlo also notes that as Adrian’s admission was voluntary (emphasis added), and he never expressed any interest in leaving, his stay cannot be characterized as a case of false imprisonment. (Capellupo v. Nassau, 97 AD3d 619 [2nd Dept 2012] (involuntary hospital admission by a person in police custody).) She points out that there is also no evidence of extreme or outrageous conduct to substantiate an intentional infliction of emotion distress claim, (Scollar v. City of NY, 160 AD3d 140 [1st Dept 2018]), or any bad faith or intimidating conduct to substantiate negligent infliction of emotional distress (Berrios v. Our Lady, 20 AD3d 361 [4th Dept 2005]). Lastly, Dr. Merlo argues that as Adrian and his wife, Ardella Candelario, stopped living together in 1991, there can be no claim for loss of services.1 Based on the aforementioned, the Court is satisfied that Dr. Merlo has met her burden for summary judgment, (Zuckerman v. City of NY, 49 NY2d 557 [1980]; Kaffka v. NY Hospital, 228 AD2d 332 [1st Dept 1996]), which now shifts to plaintiffs to demonstrate that issues of fact exist regarding same. In opposition, plaintiffs provide an expert affirmation by a Texas physician who is board certified in family and emergency medicine. According to plaintiffs’ expert, on July 22, Dr. Annan received information from Adrian’s oncologist that the Ralph Lauren Cancer Center never had a confirmed diagnosis of pancreatic cancer. Plaintiffs’ expert notes that despite this information, Dr. Annan never informed other providers of the uncertainty of Adrian’s condition, which he finds to be a deviation from good and accepted medical practice. Plaintiffs’ expert opines that Dr. Annan and Dr. Merlo deviated from good and accepted medical practice by transferring Adrian to MJHS Hospice without a confirmed diagnosis of stage IV pancreatic cancer. However, plaintiffs’ expert never addresses the standard of care that Dr. Merlo’s expert, Dr. Tatz, applied to moonlighting palliative care physician such as Dr. Merlo. As previously noted, Dr. Tatz opined that this standard of care did not call for Dr. Merlo to review prior scans and studies, but to merely manage patients already admitted to the hospice and assigned to Dr. Annan. The opinion by plaintiffs’ expert comes across as speculative and/or conclusory in that it does not attempt to resolve what appears to be an inconsistency in his opinion, namely, that Dr. Annan departed from the standard of care in failing to inform Dr. Merlo of the potentially unclear diagnosis, while at the same time suggesting that Dr. Merlo should have known of same or somehow investigated further. (Wong v. Goldbaum, 23 AD3d 277 [1st Dept 2005] (medical information not fully conveyed to covering physician).) As such, even viewing the evidence in a light most favorable to plaintiffs, (O’Sullivan v. Presbyterian, 217 AD2d 98 [1st Dept 1995]), the affirmation by their expert fails to appropriately address the opinions set forth by Dr. Tatz, and is therefore insufficient to create issues of fact to warrant denial of summary judgment. Based on the aforementioned, the instant motion for summary judgment is granted, plaintiffs’ complaint against Dr. Merlo is dismissed, and the clerk shall enter judgment in Dr. Merlo’s favor accordingly. Dr. Merlo is directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court. Dated: October 28, 2022
