Upon the following papers read on defendants’ motion for summary judgment in their favor pursuant to CPLR §3212, and other relief; NYSCEF documents 1 thru 78: it is hereby ORDERED defendants’ motion for summary judgment dismissing the complaint as asserted against them is granted as defendants did not deviate from the standard of care and no triable issue of fact has been raised; and it is further ORDERED defendants’ motion is also granted pursuant to CPLR §214-a as the action for medical malpractice is time-barred. Plaintiff, Erik Corneille, a now 41 year old, commenced this action on July 22, 2019, by the filing of a summons and complaint alleging medical malpractice against the above defendants. Defendants answered on August 27, 2019. Discover has been completed. A note of issue was filed on March 31, 2023. The action against George P. Dempsey, M.D. and George P. Dempsey, M.D., P.C. has been discontinued. Defendants Eyad Ali, M.D., Twin Forks Gastroenterology and Hepatology, P.C. (collectively herein after “Dr. Ali”) now move for summary judgment in their favor dismissing the complaint as asserted against them; seek dismissal pursuant to CPLR 214-a for all allegations of negligence prior to January 22, 2017, as time-barred by the two and one-half year statute of limitations; and for other relief. In support of the motion defendants submit, among other things, the pleadings; an expert affirmation of Michael Frank, M.D.; deposition transcripts of plaintiff, Dr. Dempsey, Dr. Ali, and nurse practitioner Lynn Villano; plaintiff’s medical records from Southampton hospital, Dr. Dempsey, Twin Forks Gastroenterology and Hepatology, P.C., JT Mather Memorial Hospital, Zwanger & Pesiri Radiology, NYU Medical Center, Dr. Dagher, and Dr. Rubin; an affirmation of counsel and a memorandum of law. In opposition, plaintiff submits, among other things, an affirmation of counsel; expert affirmations of Adam Ben Elfant, M.D., and Mark Levin, M.D.; and a memorandum of law. Plaintiff presented to Southampton Hospital with complaints of abdominal pain on February 13, 2014, where he was admitted and evaluated. An ultrasound performed at the hospital identified a mass (1.8 x 2.2 x 2cm) on plaintiff’s liver as “most likely” a hemangioma, a benign lesion. Margaret A. Whelan, radiologist recommended, a “short term follow up ultra-sound in four to six months to insure lack of interval change or a dynamic MRI scan can be performed in order to insure this does represent a hemangioma. By ultra-sound it fulfills the criteria of a hemangioma.” Upon discharge, plaintiff was advised to follow up with gastroenterologist Dr. Ali. On February 19, 2014, plaintiff presented to Dr. Dempsey, where he saw Physician Assistant Neveroski for abdominal complaints. He was assessed with acute pancreatitis was to see Dr. Ali in a week. On February 25, 2014, plaintiff presented to Dr. Ali for an initial evaluation. Dr. Ali documented plaintiff’s prior episode of abdominal pain with vomiting at Southampton Hospital. Plaintiff was 250lbs, smoked, had normal bowel movements, no diarrhea, no bleeding, but frequent GERD for which he took over the counter medication. Physical examination was unremarkable. A CT scan was unrevealing. Dr. Ali suspected pancreatitis and ordered an endoscopy to be performed on March 4, 2014, to exclude ulcer disease. Dr. Ali prescribed Dexilant, a proton pump inhibitor, for plaintiff’s GERD symptoms. On March 4, 2014, plaintiff reported that his GI symptoms resolved with the Dexilant. Dr. Ali performed the endoscope which was normal. Dr. Ali also reviewed The Southampton Hospital radiologist’s report which recommended follow-up sonography. Dr. Ali testified he advised plaintiff to return in six months for further evaluation. The endoscopy report provides, “wait for pathology report, follow-up in six months, continue Dexilant 60 milligrams dailey.” Dr. Ali also wrote, “OV in 6 months,” meaning plaintiff was to return for an office visit in six months. On March 10, 2014, Nurse Practitioner Lynn Villano spoke with plaintiff and “told him that the biopsies came back normal, to follow-up in 6 months, and to continue Dexilant, 60 milligrams, daily (transcript page 46). Plaintiff testified at his examination before trial that he did not recall if he was advised to return to Dr. Ali for follow-up. Plaintiff did not seek medical attention for gastroenterology symptoms in the rest of 2014, 2015, nor 2016. On February 1, 2017, plaintiff experienced severe abdominal pain, nausea, vomiting and diarrhea. He did not consult Dr. Ali. Rather he presented to the emergency room at Mather Hospital. An abdominal sonogram revealed a 9.9 x 7.4 x 5.9 cm liver lesion. A CT scan showed a 8.2 cm liver lesion. The interpreting radiologist recommended a triple phase contrast enhanced MRI. At discharge plaintiff was advised to see his primary care physician. Plaintiff did not contact Dr. Dempsey and did not contact Dr. Ali, despite approximately 10 bouts of abdominal complaints. On August 5, 2018, plaintiff returned to Mather Hospital Emergency Department with periumbilical abdominal pain, nausea, and vomiting. An abdominal CT scan revealed the liver lesion measuring 8.5 x 7.2 cm. Plaintiff was instructed to follow-up with his primary care physician and have an MRI to evaluate the mass. On August 9, 2018, Mather Hospital nurse Michelle Gustaferri spoke with plaintiff and advised him again to have the liver mass evaluated as soon as possible. Plaintiff had not followed-up due to insurance issues. On August 13, 2018, after more than four and one-half years, plaintiff was seen by Dr. Ali. Dr. Ali recommended a smart pill study and ordered an MRI to evaluate the liver lesion. On September 8, 2018, MRI revealed an 8.5 cm posterior right hepatic arterially enhancing lesion favoring hepatocellular carcinoma, possibly fibrolamellar subtype. On September 10, 2018, Dr. Ali advised plaintiff of the MRI results and discussed treatment options. Plaintiff did not return to see Dr. Ali. On September 12, 2018, plaintiff presented to Stony Brook University Medical Center GI Medical Oncologist Minsig Choi, M.D. Dr. Choi referred plaintiff to Stony Brook Surgical Oncologist Aaron Sasson, M.D. On September 25, 2018, plaintiff underwent a liver resection at NYU. The pathology report shows “good 3 cm margins.” As of October 2018, plaintiff reports that he is “cancer free.” Surveillance MRI showed no evidence of recurrence of cancer. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v. New York Univ. Med. Ctr., supra). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (CPLR 3212 [b]; Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court’s function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, evidence must be viewed in the light most favorable to the nonmoving party (see Chimbo v. Bolivar, 142 AD3d 944, 37 NYS3d 339 [2d Dept 2016]; Pearson v. Dix McBride, LLC, 63 AD3d 895, 883 NYS2d 53 [2d Dept 2009]; Kolivas v. Kirchoff, 14 AD3d 493, 787 NYS2d 392 [2d Dept 2005]). Here, the elements of a medical malpractice action are did the moving defendants deviate from accepted standards of care and practice in treating the plaintiff, or that moving defendants conduct was a proximate cause of the plaintiff’s injuries (Amsler v. Verilli, 119 AD2d 786, 501 NYS2d 411 [2d Dept 1986]). Dr. Ali through the affirmation of Dr. Frank has established that Dr. Ali was not negligent in his care of plaintiff. Specifically, Dr. Frank affirms that within a reasonable degree of medical certainty that the care and treatment rendered by the Dr. Ali was appropriate at all times and did not deviate from the standard of care in any respect. Dr. Frank opines, “that after a patient is advised to return to a clinician’s office, it is then up to the patient to return to the office.” Dr. Frank also opines that within a reasonable degree of medical certainty that Dr. Ali was not plaintiff’s treating gastroenterologist in 2017.” In opposition, plaintiff maintains that Dr. Ali advised him that he was too young to have cancer and that a hemangioma was nothing to worry about. Plaintiff’s expert gastroenterologist, Dr. Adam Ben Elfant, M.D., opines that Dr. Ali departed from good and accepted medical practice and deprived him of a better outcome for liver cancer by failing to follow-up on the results of the abdominal ultrasound date February 13, 2014, and failing to advise the plaintiff that further investigation was required. Dr. Elfant writes “that plaintiff testified that Dr. Ali reassured him that there was nothing to worry about, and there is nothing in Dr. Ali’s medical record indicate otherwise.” Contrary to plaintiff’s position, plaintiff’s expert has failed to raise a triable issue of fact. Plaintiff’s expert relies on facts that are not supported by the record. Dr. Ali specifically wrote, “OV in 6 months.” He testified that he advised plaintiff to follow-up in 6 months, based upon his custom and practice. Moreover, on March 10, 2014, Nurse Practitioner Lynn Villano spoke with plaintiff and “told him that the biopsies came back normal, and to follow-up in 6 months. Significantly, plaintiff did not testify that he was not advised to follow-up, but rather that he did not remember that conversation. Plaintiff’s expert’s affidavit therefore is speculative, conclusory, not supported by the factual record here, and insufficient to defeat the motion for summary judgment (Getselevich v. Ornstein, 219 AD3d 1493, 196 NYS3d 515 [2d Dept 2023]). Likewise, Plaintiff’s expert oncologist Dr. Mark Levin opines that the standard of care was violated here, as it required clear communication of [potential liver cancer] to plaintiff “which was not done in this case”. He writes “there is nothing in Dr. Ali’s medical records to indicate otherwise,” which as discussed above, are not the facts in this case. In any event, plaintiff claim of medical malpractice is time barred. CPLR §214-a provides: An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure. Here, the act of alleged malpractice took place, at the latest, in 2014. The action was not commenced until July 22, 2019. Defendants have established that the time to commence the action has expired. The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period (see Singh v. New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. of Queens Hosp. Ctr.], 107 AD3d 780, 781, 970 NYS2d 33 [2d Dept 2013]; Baptiste v. Harding-Marin, 88 AD3d 752, 930 NYS2d 670 [2d Dept 2011]; Williams v. New York City Health & Hosps. Corp., 84 AD3d 1358, 923 NYS2d 908 [2d Dept 2011]). Under the continuous treatment doctrine, the limitations period does not begin to run until the end of the course of treatment if three conditions are met: (1) the patient “continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period”; (2) the course of treatment was “for the same conditions or complaints underlying the plaintiff’s medical malpractice claim”; and (3) the treatment is “continuous” (Gomez v. Katz, 61 AD3d 108, 111-112, 874 NYS2d 161 [2d Dept 2009]). Despite being advised by Nurse Practitioner Lynn Villano to return to the office in six months after the March 4, 2014 endoscope, plaintiff did not return. There was no contact between plaintiff and Dr. Ali in 2015, 2016 and 2017. Significantly, even as late as February 1, 2017, when plaintiff experienced abdominal pain he did not seek treatment with Dr. Ali. It cannot be said that a gap in treatment from March 2014 through September 24, 2018 can be termed “continuous” (Massie v. Crawford, 78 NY2d 516, 577 NYS2d 223 [1991]; Nykorchuck v. Henriques, 78 NY2d 255, 573 NYS2d 434 [1991]; McDermott v. Torres, 56 NY2d 399, 452 NYS2d 351 [1982]). This is especially true where the interval between treatments exceeds the period of limitation (Sherry v. Queens Kidney Ctr., 117 AD2d 663, 498 NYS2d 401 [2d Dept 1986]). Plaintiff relies on a number of cases where a gap in treatment was permitted, and did not preclude a finding of continuous treatment as a matter of law. However, none of those cases had treatment gaps as long as here (Rudolph v. Jerry Lynn, D.D.S., P.C., 16 AD3d 261, 792 NYS2d 410 [1st Dept 2005] [22 months]; Marun v. Coleburn, 291 AD2d 340, 739 NYS2d 22 [1st Dept 2002] [22 months]; Gehabauer v. Baker, 292 AD2d 255, 739 NYS2d 79 [1st Dept 2002] [25 months]; Klotz v. Rabinowitz, 252 AD2d 542, 675 NYS2d 649 [2d Dept 1998] [27 months]; Edmonds v. Getchonis, 150 AD2d 879, 541 NYS2d 250 [3rd Dept 1989] [27 months]; Siegel v. Wank, 183 AD2d 158, 589 NYS2d 934 [3rd Dept 1983] [27 months]; Levy v. Schnader, 96 AD2d 854, 465 NYS2d 767 [2d Dept 1983] [27 months]. Plaintiff’s expert opines that Dr. Ali remained plaintiff’s treating gastroenterologist because Dr. Ali never discharged plaintiff from his treatment, that plaintiff trusted Dr. Ali, and continuously relied on his diagnosis, and plaintiff returned “as soon as possible” for treatment of the same medical treatment. The opinion is not based upon the facts in this case. Plaintiff waited four and a half years before he again saw Dr. Ali. Critically, in 2017, when treating at Mather Hospital for abdominal issues, in which a CT scan showed an 8.2 cm liver lesion, plaintiff did not contact Dr. Ali. As a matter of law, this is not continuous treatment by a gastroenterologist. Accordingly, defendants’ application to dismiss is granted on these grounds as well. Dated: November 27, 2023
