Papers considered: 1. Notice of Motion on behalf of Defendants, Eugene Dougherty, PA, dated November 30, 2023; Affirmation in Support of Jennifer J. Bennice, Esq., dated November 30, 2023 with Exhibits A-Q; Statement of Material Facts; and Memorandum of Law in Support. 2. Notice of Motion on behalf of Defendant, Dr. Barry Mark, dated December 12, 2023; Affirmation in Support of Emily A. Phillips, Esq., dated December 12, 2023, with Exhibits A-Q; Affidavit in Support of Sheila M. Lemke, MD, dated November 29, 2023, with Exhibit 1; Affirmation of Douglas B. Smail, DDS, dated December 11, 2023, with Exhibit 1; Statement of Material Facts and Memorandum of Law in Support. 3. Notice of Motion on behalf of Defendants, Jaime Parent, MD and River Radiology dated December 12, 2023; Affirmation in Support of Erica R. Lerner, Esq. dated December 12, 2023, with Exhibits A-T; Memorandum of Law in Support and Statement of Material Facts. 4. Affirmation in Opposition of Donald J. Lambiase, Esq., dated January 12, 2024, with Exhibits 1-20; Memorandum of Law in Opposition and Statement of Material Facts. DECISION/ORDER In this medical/dental malpractice action, Defendants, Jaime Parent, MD, Eugene Dougherty, P.A., Barry Mark, DDS, River Radiology, PLLC, and Nuvance Health Medical Practice, P.C., (“Nuvance”) move for summary judgment. Plaintiffs, Joseph Trusso and Debra Stasi1, oppose. The essence of Plaintiff’s action is that the Defendants failed to timely diagnose and treat Trusso’s cancer. BACKGROUND Trusso started to experience pain and restriction of motion of his jaw. In seeking treatment for this condition, he consulted with Dougherty, Trusso’s primary care provider. Dougherty was employed by Nuvance. On November 29, 2017, Trusso reported right-sided lower tooth and gum pain radiating from underneath his tongue. Following examination, Dougherty’s impression was possible tooth infection or abscess. Dougherty prescribed an antibiotic and recommended following up with his long-time dentist, Dr. Robert Dutton, and possibly a referral to an oral surgeon if symptoms persisted. Trusso then saw Dr. Dutton, who advised him to finish his antibiotics and follow up if his symptoms persisted. On January 15, 2018, he followed up with Dr. Dutton, reporting muscle spasms, pain in his right ear, neck and jaw, and restricted jaw movement. Dr. Dutton concluded he was experiencing temporomandibular joint (“TMJ”) symptoms and recommended various treatments. Trusso returned to PA Dougherty on February 28, 2018, but made no mouth-related complaints. On March 9, 2018, Trusso again saw Dr. Dutton, who noted restricted range of motion of his TMJ and recommended that he try to open his mouth wider a little bit each day. Trusso saw Dougherty again on April 11, 2018, and October 10, 2018, where his mouth pain was not discussed. On December 6, 2018, Trusso returned to Dr. Dutton complaining of recurring jaw pain upon opening, pain of the right internal pterygoid muscle and right ear pain, whereupon Dr. Dutton referred him to Dr. Barry Mark, a TMJ specialist. On January 15, 2019, Trusso was seen by Dr Mark. Dr. Mark’s examination produced findings of moderate tenderness to palpation of the right lateral and posterior wall, right temporalis and masseter muscle, right medial pterygoid, posterior digastric area, and sub-occipital area, slight tenderness to palpation of the sternocleidomastoid, trapezius and posterior cervical, and deviation on opening. His impression was degenerative joint disease of the TMJ, multiple myofascial trigger points in the upper quarter, otalgia of the right side, and masticary and cervical myalgia. He recommended an MRI without contrast. The next day, Trusso returned to Dougherty reporting worsening pain, decreased range of motion of his right TMJ, pain radiating to his right ear and inability to open his mouth more than 2 inches with rare locking of his jaw. He advised Dougherty he had just seen Dr. Mark, who recommended an MRI for further evaluation of his TMJ disorder. Dougherty concluded severe restriction of range of motion of the TMJ, requiring further evaluation with an MRI. Dougherty ordered the MRI that Dr. Mark recommended and advised Trusso to follow up with Dr. Mark. On January 24, 2019, Trusso had the MRI at River Radiology, which was interpreted by Dr. Jaime Parent, a radiologist. She read the MRI as showing degenerative changes of the anterior discs and condyles, no anterior translation of the left articular disc with open mouth views, little anterior translation of the left condyle, right disc and condyle, with no edema or effusion. Dr. Parent did not observe any mass, thickening of the tonsillar bed, or any other signs indicative of cancer. River Radiology provided a copy of the MRI report to Dougherty. Dougherty is not trained to read MRI films. Relying on Dr. Parent’s report, he advised Trusso to follow up with Dr. Mark. One week later, Trusso saw Dr. Mark, who reviewed the MRI and continued to opine that Trusso was experiencing the effects of degenerative joint disease and possibly a fibrous ankylosis. Dr. Mark conceded that he hadn’t considered the possibility of cancer and therefore did not refer Trusso to an oncologist. Rather, he provided Trusso with eleven photopuncture treatments from February 14, 2019, through December 6, 2019. Trusso continued to treat with Dougherty and Dr. Mark. Then, on July 27, 2020, he consulted with oral surgeon, Dr. Lawrence Busino, who referred him for a CT Scan with contrast. The CT Scan with contrast was performed at River Radiology and was interpreted by radiologist, Dr. James Conroy, as revealing a 4.4 cm x 3.5 cm mass in the right infratemporal fossa involving the right pterygoid musculature and extending to the oropharynx. The mass was biopsied and determined to be squamous cell carcinoma. Trusso began cancer treatment and brought this action alleging that Defendants, Dougherty, Dr. Parent, and Dr. Mark, departed from the standard of care in failing to earlier diagnose his cancer. Plaintiffs’ claims against Nuvance and River Radiology are derivative. DISCUSSION/SUMMARY JUDGMENT STANDARD The proponent of a summary judgment motion must make a prima facie showing of entitlement of judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). Failure of the moving party to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposition papers. Id., Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id.; Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury. Holland v. Cayuga Med. Ctr. At Ithaca, 195 AD3d 1292, 1294 (App. Div. 3 Dept., 2021); Howard v. Stanger, 122 AD3d 1121, 1123 (App. Div. 3 Dept., 2014). On a motion for summary judgment, defendants bear the initial burden of establishing that there was no deviation or departure from the applicable standard of care or that any alleged departure did not proximately cause the patient’s injuries. Holland v. Cayuga Med. Ctr. At Ithaca, 195 AD3d at 1294; Pullman v. Silverman, 28 NY3d 1060, 1062 (2016); Furman v. Desimone, 180 AD3d 1310, 1311 (App. Div. 3 Dept., 2020). To meet this burden, defendants must submit a physician’s affidavit opining that the care provided did not depart from the applicable standard of care or that such departure was not the proximate cause of plaintiff’s injury. Holland v. Cayuga Med. Ctr. At Ithaca, 195 AD3d at 1294; see also, D’Orta v. Margaretville Mem. Hosp., 154 AD3d 1229, 1231 (App. Div. 3 Dept., 2017). Only if the defendant meets this initial burden of establishing its entitlement to judgment as a matter of law does the burden shift to plaintiff to raise a triable issue of fact. Id., Randall v. Kingston Hosp., 135 AD3d 1100, 1101(App. Div. 3 Dept., 2016). MOTION BY DOUGHERTY AND NUVANCE Dougherty submits the expert testimony of Brian Feingold, M.D., who finds that Dougherty did not deviate from the standard of care in his treatment of Trusso. Dogherty was entitled to rely on the recommendations of dentists, TMJ specialists and oral surgeons in evaluating a condition which was outside of the PA’s medical specialty. Dr. Feingold contends that TMJ disorder is not typically treated by a primary care provider or internist such as Dougherty. Dougherty complied with the relevant standard of care in relying upon the specialist opinions of Dr. Dutton and Dr. Mark to evaluate and treat Trusso’s restricted range of motion of his TMJ and right jaw pain. Dougherty relied appropriately upon Dr. Mark’s recommendation to order an MRI without contrast. Additionally, Dougherty appropriately relied upon the reading of the MRI by Dr. Parent, who did not perceive a mass on her review of the images. Accordingly, Dougherty was not required by the standard of care to perform buccal examinations or additional diagnostic testing, nor recommend further specialist consultations. As there was no departure from the standard of care by Dougherty, there is no vicarious liability attributable to Nuvance. Dougherty’s submission is sufficient to meet his, and Nuvance’s, initial burden of demonstrating entitlement to judgment as a matter of law, shifting the burden to Trusso to demonstrate the existence of an issue of fact. Trusso submits the affidavit of Paul Ciucci, MD, DDS, FACS, a medical doctor and dentist familiar with the treatment of TMJ disorders and mouth and neck cancers. Dr. Ciucci opined that Dougherty departed from the standard of care by relying on the inconclusive finding of the radiologist, Dr. Parent, and the opinions of the dentist, Dr. Dutton, without further work up. The diagnosis of TMJ disorder by Dr. Mark was questionable at best because he attributed progressive trismus to the minimal degenerative conditions reported by Dr. Parent. Because the diagnosis was inconclusive, the standard of care for PAs required Dougherty to consider the possibility of a cancerous lesion from the outset and the possibility of cancer should have been worked up until it could be ruled out. Dr. Ciucci avers that medical standards of care do not permit Dougherty to rely upon a dentist to rule out a potentially life-threatening medical condition such as cancer. Nothing in Dr. Parent’s reading of the MRI ruled out cancer. Trusso’s failure to respond positively to Mark’s TMJ disorder treatment should have signaled to Dougherty that further work up was urgently necessary. He opines that Dougherty’s departure from the standard of care was responsible for the delay in diagnosing and treating Trusso’s cancer. Additionally, Trusso submits the affidavit of Angela Albero, PA, who opines that Dougherty deviated from the standard of care for PAs in relying upon the diagnosis of TMJ disorder by Dr. Mark and failing to consider the possibility of other causes for Trusso’s condition. Albero opines that Dougherty deviated from the standard of care by not ordering further diagnostic testing, including contrast CT or MRI. She also asserts that Dougherty failed to conform to the standard of care by not consulting his supervising physician. Trusso’s submission is sufficient to create an issue of fact to be decided at trial. MOTION BY DR. MARK Dr. Mark submits the expert affirmation of Douglas B. Smail, DDS, who opines that Dr. Mark acted within the standard of care in his treatment of Trusso. Dr. Smail asserts that, as a general dentist, it is not within the scope of Dr. Mark’s expertise to interpret MRI imaging. An MRI is an appropriate test for diagnosing TMJ issues. Dr. Smail asserts that the MRI report stated, “no definitive or observable cancer or tumor”. It was reasonable and within the standard of care for Dr. Mark to rely upon the reading of the MRI by the radiologist, Dr. Parent. Dr. Smail asserts that throughout the 2019 treatments, Trusso never exhibited signs specifically suggestive of cancer. Dr. Mark’s decision to treat Trusso with non-surgical conservative methods during 2019 is within the standard of care. During the December 6, 2019 visit, Dr. Mark referred Trusso to oral surgeon, Dr. Lawrence Busino. Trusso did not see Dr. Bussino for more than 7 months, until July 27, 2020. He notes that Trusso declined to accept the recommendation of Dr. Hoffman who had suggested exploratory surgery under anaesthesia, which Dr. Smail asserts would almost certainly have identified the mass. He also blames Trusso for waiting over 7 months to see Dr. Busino, attributing negligence to the Plaintiff. Dr. Smail concludes that Dr. Mark did not depart from the standard of care to cause or contribute to a delay in diagnosing Trusso’s cancer. Dr. Mark also submits the expert opinion of Sheila Lemke, MD, who opines that, in her opinion as an oncologist, Dr. Mark’s treatment of Trusso is in accordance with standards of good and accepted care, and nothing Dr. Mark did, or failed to do, proximately caused Trusso’s alleged injuries. She asserts that, had Trusso’s cancer been detected in January 2019, his course of treatment would have been the same as it was when the cancer was eventually detected in July 2020. Dr. Lemke notes that Trusso’s cancer required chemotherapy and radiation treatment, He received that type of treatment with good results. She attributes fault to Trusso for waiting nearly 8 months before seeing Dr. Busino, who discovered the cancer. Dr. Mark’s submission is sufficient to demonstrate his entitlement to judgment as a matter of law, shifting the burden to Trusso to demonstrate an issue of fact. In opposition, Trusso again relies upon Dr. Ciucci, who notes that Dr. Parent’s MRI report does not state that there is “no definitive or observable cancer or tumor”. He states that Dr. Parent’s report makes no reference whatsoever to cancer or a tumor and thus finds Dr. Smail’s misstatement to be material. Dr. Ciucci opines that the MRI was actually negative for TMJ disorder2, finding only mild degenerative changes. He states that the objective findings on the MRI were inconsistent with the severity of Trusso’s symptoms and did not support the diagnosis of TMJ disorder or the treatment plan that Dr. Mark implemented. Accordingly, if Dr. Mark was, in fact, relying on Dr. Parent’s reading of the MRI, he would have found the MRI to be inconsistent with his diagnosis of TMJ disorder. Dr. Ciucci opines that Dr. Mark departed from accept standards of dentistry in the first instance by misdiagnosing Trusso’s condition and, thereafter, by failing to refer him for further diagnostic work up. Trusso responds to Dr. Lemke’s opinion with the expert opinion of Dr. John Mclntyre, a radiologist, who opines that the mass as it appears on the January 2019 MRI measured 3 cm x 2 cm. On the CT Scan of July 2020, shows the mass had increased to 4.4 cm x 3.5 cm. As a result, Trusso was required to undergo multiple rounds of aggressive chemotherapy before the chemoradiation treatment regimen could begin. It was necessary to shrink the tumor with multiple rounds of highly aggressive chemotherapy before Memorial Sloan Kettering would even consider treatment with radiation, instead of surgery. Dr. Ciucci opines that, had the cancer been detected in January 2019, Trusso’s treatment would have been routine, avoiding the multiple rounds of aggressive chemotherapy and attendant effects. According to Trusso’s oncological expert, Aymen Elfiky, MD, the aggressive chemotherapy utilized to shrink the size of the tumor resulted in his toxic encephalopathy and other complications. The Court finds that Trusso has demonstrated issues of fact which require a trial. MOTION BY DR. PARENT AND RIVER RADIOLOGY Dr. Parent submits the expert opinion of Robert Berkenblit, MD, a radiologist, who finds that Dr. Parent properly made findings for TMJ disorder and properly noted mild irregularities of the right articular disc and condyle consistent with degenerative changes. He claims that Dr. Parent properly and appropriately found no evidence of masses. Dr. Parent appropriately proceeded with an MRI without contrast of the TM Joint to rule out TMJ disorder, as requested by the ordering physician. A TMJ MRI study is limited to images of the jaw, does not include axial cuts and does not evaluate the soft tissue of the head or neck. Dr. Birkenblit asserts that a radiologist reviewing a TMJ MRI is required by the standard of care to evaluate only the cartilage and bone. Where there is no evidence of a mass or other suspicious findings, the standard of care does not require a radiologist to order follow up studies. Thus, Dr. Parent conformed to the standard of care by limiting her evaluation to Trusso’s bone and cartilage. Dr. Parent conformed to the standard of care when she did not find evidence of masses. Dr. Birkenblit asserts that no mass can be visualized in any of the January 2019 films. This testimony establishes Dr. Parent’s, and River Radiology’s, entitlement to judgment as a matter of law, shifting the burden to Trusso to demonstrate an issue of fact. Dr. John Mclntyre, Trusso’s radiological expert, directly contradicts Dr. Birkenblit’s opinion by averring that the mass is clearly visible in the specific films he identifies. Also, Trusso’s treating radiation oncologist from Memorial Sloan Kettering, Dr. Daphna Gelblum, testified that she observed suspicious findings requiring further study when she reviewed the January 2019 MRI films. Dr. Mclntyre opined that accepted medical standards required Dr. Parent to observe, report and follow up on the MRI findings. Consequently, Trusso has demonstrated a triable issue of fact as to Dr. Parent and River Radiology. Any other contentions of the parties have been considered and are found to be without merit or are rendered academic. Accordingly, it is hereby ORDERED, that the motions for summary judgment made by Defendants, Dougherty, Nuvance, Dr. Mark, Dr. Parent and River Radiology are denied. This matter remains scheduled for trial commencing with jury selection on August 12, 2024. This shall constitute the Decision/Order of the Court. The Court is e-filing the original of this Decision/Order, relieving the parties of their obligations, pursuant to CPLR §2220, regarding filing and entry of same, but this does not relieve the parties of their obligations regarding service with notice of entry. Dated: April 18, 2024
