The following papers numbered EF-38 to EF-83 read on this motion by defendants CENTRAL RADIOLOGY, P.C., CENTRAL RADIOLOGY PC FLUSHING IMAGING CENTER and MARY HU, M.D. for summary judgment and dismissal of plaintiff’s Complaint pursuant to CPLR §3212. Papers Numbered Notice of Motion, Affirmation, Exhibits EF38-EF62 Affirmation in Opposition, Exhibits EF64-EF75 Response to Statement of Material Facts EF76-EF77 Reply Affirmation EF83 Upon the foregoing papers, it is ordered that this motion is determined as follows: Defendants Central Radiology, P.C., Central Radiology PC Flushing Imaging Center, and Mary Hu, M.D.’s (hereinafter collectively referred to as “defendants”) motion for summary judgment and dismissal of plaintiff’s Complaint pursuant to CPLR §3212 is granted, as defendants demonstrated they did not depart from good and accepted standards of care and did not proximately cause plaintiff’s injuries. (See generally DiLorenzo v. Zaso, 148 A.D.3d 1111 [2d Dept. 2017].) Plaintiff commenced this action for medical malpractice arising out of defendants’ interpretation of a mammogram and bilateral breast ultrasound plaintiff underwent on August 27, 2018. Plaintiff filed the Summons and Complaint on February 3, 2022 and issue was joined by defendant Central Radiology via the filing of its Verified Answer on March 21, 2022, followed by the filing of defendant Dr. Hu’s Verified Answer on March 25, 2024. Defendants argue that they are entitled to summary judgment and present plaintiff’s Bill of Particulars and medical records, the deposition testimony, and affirmations from Michelle Klein, M.D. and Ronald Blum, M.D. in support of their motion. Defendants argue that they did not depart from accepted standards of care and did not proximately cause plaintiff’s injuries. Specifically, defendants argue that defendant Dr. Hu’s role in plaintiff’s treatment was limited to interpreting and reporting the radiological studies, and she did not provide any medical care or treatment to plaintiff. They further argue that Dr. Hu did not depart from accepted standards of care in the manner in which she interpreted plaintiff’s diagnostic imaging. They further argue that defendant Central Radiology did not depart from accepted standards of care in hiring Dr. Hu or any other personnel, and argue that all employees were experienced and qualified in their relevant fields. Defendants present the affirmation of Dr. Michelle Klein in support of their motion. Dr. Klein affirmed that she is a radiologist licensed in New York and board certified in radiology. Dr. Klein further affirmed that she reviewed plaintiff’s medical records in rendering her opinions. Dr. Klein opined within a reasonable degree of medical certainty that defendants did not depart from accepted standards of care and defendant Dr. Hu’s interpretation of plaintiff’s August 27, 2018 breast imaging conformed with accepted radiological practice. Dr. Klein reviewed plaintiff’s pertinent medical history in rendering her opinions and affirmed that on August 27, 2018, plaintiff presented to her OB/GYN, co-defendant Dr. Ing-Yann Jeng. Co-defendant Dr. Jeng performed a breast evaluation with normal results, assessed plaintiff as having excessive and frequent menstruation and cervical high-risk HPV, and sent plaintiff for a mammogram to defendant Central Radiology’s facility. Defendant Dr. Hu interpreted plaintiff’s mammogram that same day and found there was no evidence of malignancy, but recommended a bilateral breast ultrasound which was also done the same day with unremarkable findings. On June 20, 2019, plaintiff presented to co-defendant Dr. Jeng again, complaining of breast pain. Co-defendant Dr. Jeng conducted a breast examination with negative results. Dr. Jeng saw plaintiff again on August 30, 2019 for plaintiff’s annual checkup during which she detected a tender lump in plaintiff’s left breast and performed a pap smear that came back with abnormal results. Co-defendant Dr. Jeng referred plaintiff for another mammogram that plaintiff underwent on September 4, 2019. Defendant Dr. Hu at Central Radiology interpreted the mammogram and noted a low suspicion for malignancy. Plaintiff also underwent a bilateral breast ultrasound the same day, which Dr. Hu interpreted to suggest an ultrasound-guided biopsy. On September 10, 2019, plaintiff underwent a left breast biopsy at NYP Queens, which confirmed the diagnosis of invasive ductal carcinoma, moderately differentiated, and the presence of calcifications in benign breast tissue. Plaintiff underwent chemotherapy and radiation therapy, as well as a left breast lumpectomy and further excision surgeries. A PET scan on November 26, 2019 revealed no evidence of metastatic disease and plaintiff’s breast cancer has not returned to date. However, due to the type of cancer and its high recurrence rate, plaintiff is still receiving hormone therapy. Dr. Klein opined that as a radiologist, defendant Dr. Hu did not have a general duty of care towards plaintiff or a duty to diagnose her with breast cancer or recommend further testing. Dr. Klein reasoned that Dr. Hu’s role is solely limited to interpreting the study as ordered by the referring physician and correctly documenting the findings. Dr. Klein affirmed that she reviewed plaintiff’s August 27, 2018 mammogram and ultrasound and opined that Dr. Hu’s findings, interpretations and reporting were appropriate and conformed with the standard of care. Dr. Klein agreed that based upon the imaging, plaintiff’s breasts were heterogeneously dense with no mammographic evidence of malignancy. Dr. Klein also agreed with defendant Dr. Hu’s imaging classification as Benign-Dense (BI-RADS 2D) and with Dr. Hu’s interpretation of the ultrasound. Dr. Klein reviewed plaintiff’s September 4, 2019 imaging and opined that the images greatly differ from the 2018 images. She opined within a reasonable degree of medical certainty that plaintiff’s August 27, 2018 mammogram and breast ultrasound did not depict any evidence of abnormalities that warranted further investigation, nor were they any delays in reporting the results that caused plaintiff’s injuries. Dr. Klein opined that defendants did not contribute to any alleged delay in diagnosis, as the August 2018 imaging did not indicate any malignancies or calcifications indicative of cancer. Dr. Klein further opined that plaintiff received radiological services at Central Radiology at all times from experienced, qualified, skilled, and competent staff. Based upon the foregoing, Dr. Klein opined within a reasonable degree of medical certainty that defendants did not depart from accepted standards of care or proximately cause plaintiff’s injuries. Defendants also presented the affirmation of Dr. Ronald Blum in support of their motion. Dr. Blum affirmed that he is a medical oncologist licensed in New York and board certified in internal medicine with a subspeciality in medical oncology. Dr. Blum further affirmed to reviewing plaintiff’s medical records in rendering his opinions and outlined plaintiff’s pertinent medical history. Dr. Blum opined within a reasonable degree of medical certainty that there was no delay in diagnosis. He further opined that even if a diagnosis could have occurred one year earlier, any alleged delay did not allow the cancer to grow nor did it severely impact or limit plaintiff’s treatment options. He further opined that any alleged delay did not force plaintiff to undergo grossly invasive procedures, increase the risk of death, cause extensive pain and suffering, or severely increase the chance of recurrence. Dr. Blum reasoned that plaintiff had an aggressive form of cancer known as invasive lobular carcinoma. He opined within a reasonable degree of medical certainty that interval breast cancer was a higher risk type of cancer common amongst women with dense breasts and more aggressive by nature, with poorer outcomes when compared to incident breast cancer. Dr. Blum reasoned that interval breast cancer is usually detected about one year after a normal mammogram and develops in the time period between the last normal mammogram and the latter one where the cancer is detectable. He further noted that on September 4, 2019, plaintiff reported a lump in her left breast existing for six months, and opined this was a sign of an interval breast cancer that developed after plaintiff’s August 2018 mammogram and ultrasound. Dr. Blum also opined that an earlier diagnosis would not have altered the aggressive nature of plaintiff’s cancer or the medical intervention required following diagnosis. He opined that plaintiff would have still required the same medical interventions listed in plaintiff’s Bill of Particulars in order to prevent a recurrence, and the alleged side effects of the interventions were unavoidable. Based upon the foregoing, defendants argue that they did not depart from accepted standards of care or proximately cause plaintiff’s injuries, and are therefore entitled to summary judgment. Plaintiff opposes the motion and argues that defendants failed to establish a prima facie entitlement to summary judgment. She also argues that defendants failed to eliminate all triable issues of fact with respect to whether they departed from accepted standards of care or proximately caused plaintiff’s injuries. Plaintiff presents the pleadings, defendant Dr. Hu’s deposition testimony, and affirmations from Brian Englander, M.D. and Steven Papish, M.D. in support of her opposition. She argues that defendant Dr. Hu owed a duty of care as a radiologist, and departed from the standard of care in the manner in which she interpreted the 2018 imaging. Plaintiff further argues that defendants proximately caused her injuries by delaying the breast cancer diagnosis for approximately one year, causing her to undergo intensive treatment with long term damages. As the experts present conflicting opinions, plaintiff argues summary judgment is not warranted. However, plaintiff voluntarily withdrew the allegations regarding negligent hiring or training personnel. Plaintiff presents the affirmation of Dr. Brian Englander in opposition to defendants’ motion. Dr. Englander attested that he is a physician licensed in Pennsylvania and New Jersey and board certified in radiology. Dr. Englander further attested that he reviewed plaintiff’s medical records, the deposition testimony, and defendants’ expert disclosures in rendering his opinions. Dr. Englander opined within a reasonable degree of medical certainty that defendant Dr. Hu deviated from the standard of care in her interpretation of plaintiff’s 2018 imaging. Dr. Englander reasoned that the 2018 imaging should have been performed with spot magnifications that would have identified a new grouping of coarse, heterogenous and amorphous calcifications within the upper outer quadrant leading to a biopsy that would have identified cancer. Dr. Englander also disagreed with Dr. Klein’s findings and opined that as a radiologist. Dr. Hu was responsible for the general duty of care and had a duty to diagnose and recommend further testing. Dr. Englander disagreed with Dr. Klein’s opinion that Dr. Hu properly interpreted the 2018 imaging. Dr. Englander reasoned that based upon his review of the 2018 imaging, calcifications were evident within the upper outer quadrant of the left breast that were neither identified nor described by Dr. Hu. Dr. Englander further opined that the static images from the bilateral breast ultrasound did not identify a mass, but reasoned that the performing technologist was not specifically directed to look within the upper outer quadrant of the left breast. Dr. Englander further reasoned that even if no ultrasound finding was detected at that time, based upon the morphology of the calcifications. a biopsy should have been performed. Dr. Englander also disagreed with the Benign-Dense classification and opined that the study should have been classified as incomplete with the need for additional imaging. Based upon the foregoing, Dr. Englander opined within a reasonable degree of medical certainty that defendant Dr. Hu deviated from the standard of care in her interpretation of the 2018 imaging by not identifying the calcifications within the left breast and not recommending additional imaging and a biopsy. Plaintiff also presents the affirmation of Steven Papish, M.D. in opposition to defendants’ motion. Dr. Papish attested that he is a physician licensed in New Jersey and board certified in internal medicine, hematology, and medical oncology. Dr. Papish further attested that he reviewed plaintiff’s medical records, the parties’ deposition testimony, and expert disclosures in rendering his opinions. Dr. Papish reviewed plaintiff’s pertinent medical history in rendering his opinions, including plaintiff’s first visit with co-defendant Dr. Jeng in 2007. Dr. Papish opined to a reasonable degree of medical certainty that plaintiff’s breast cancer, specifically invasive lobular cancer, was present in plaintiff’s left breast as early as 2016. He further opined that due to defendants’ departures from accepted standards of care, the delay in diagnosing plaintiff’s cancer led to an increase in the tumor size, decreased survival rate, and unnecessary and invasive treatment, including the most aggressive third-generation chemotherapy. Dr. Papish reasoned that had plaintiff been diagnosed earlier, she would have had a better survival rate and she would have been treated with a Taxotere and Cytoxan chemotherapy regimen which is a much less aggressive type of chemotherapy. Dr. Papish further reasoned that the unnecessary and aggressive chemotherapy plaintiff underwent because of the delay in diagnosis caused significant side effects and long-term damage that would not have occurred if she had undergone the less aggressive chemotherapy at an earlier stage. Dr. Papish further reasoned that the most notable side effect of this aggressive chemotherapy is the peripheral neuropathy which significantly limits plaintiff’s mobility, manual dexterity, and can ultimately impair her ability to have meaningful employment or quality of life. Dr. Papish further reasoned that had plaintiff received the less aggressive chemotherapy, the peripheral neuropathy and long-term side effects would have been avoided. Dr. Papish disagreed with Dr. Blum’s opinion that plaintiff had interval cancer. He reasoned that based upon Dr. Englander’s opinions, the cancer was identifiable in the 2018 imaging thereby making it a “missed” cancer rather than interval cancer. Dr. Papish also disagreed with Dr. Blum’s opinion that there would be no difference in stage or prognosis of plaintiff’s cancer with an earlier diagnosis. He opined that plaintiff’s cancer grew from 2018 to 2019 which is significant in terms of the calculations for a ten-year survival rate. While Dr. Papish agreed with Dr. Blum that plaintiff had an aggressive tumor that would have required adjuvant chemotherapy even if diagnosed in August 2018, he opined that a smaller lymph node negative tumor could have been treated with a two-drug regimen that would have reduced the risk of peripheral neuropathy and not compromise survival rates. Based upon the foregoing, plaintiff argues that defendants failed to eliminate all triable issues of fact with respect to whether they departed from accepted standards of care and proximately caused plaintiff’s injuries, and therefore the motion should be denied. Pursuant to CPLR §3212, a motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” (Smith v. City of New York, 210 A.D.3d 53, 68 [2d Dept. 2022].) The proponent of a summary judgment motion 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. (Morejon v. New York City Tr. Auth., 216 A.D.3d 134, 136 [2d Dept. 2023].) If there is any doubt as to the existence of a triable issue of fact, the motion must be denied. (Id.) The failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposition papers. (Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; see also Antonyuk v. Brightwater Towers Condo Homeowners’ Assn., Inc., 147 A.D.3d 711, 712 [2d Dept. 2017].) In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party. (Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 25 [2019].) Additionally, the court’s function in determining a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. (Reyes v. S. Nicolia & Sons Realty Corp., 212 A.D.3d 851, 852-853 [2d Dept. 2023].) Once the moving party has demonstrated a prima facie entitlement to summary judgment, the burden then shifts to the non-moving party to demonstrate the existence of material issues of fact. (See generally Coscia v. Mosca, 203 A.D.3d 695 [2d Dept. 2022].) In moving for summary judgment in a medical malpractice action, the defendant must establish a prima facie case that there was no departure from good and accepted medical practice or that the plaintiff was not injured thereby, and the plaintiff in opposition must submit evidentiary facts or materials to demonstrate the existence of a triable issue of fact. (Stukas v. Streiter, 83 A.D.3d 18, 24 [2d Dept. 2011].) In presenting opposition to raise a triable issue of fact, the plaintiff is required to provide an affirmation or affidavit of merit by a medical expert, and the failure to submit an affirmation or affidavit by a medical expert competent to attest to the meritorious nature of the plaintiff’s claims requires dismissal of the Complaint. (Id. at 28.) Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. (Buch v. Tenner, 204 A.D.3d 635, 638 [2d Dept. 2022].) In general, a hospital or facility may be vicariously liable for the negligence or malpractice of its employees acting within the scope of employment under the doctrine of respondeat superior. (See generally Valerio v. Liberty Behavioral Mgt. Corp., 188 A.D.3d 948 [2d Dept. 2020].) Defendants Central Radiology, P.C., Central Radiology PC Flushing Imaging Center, and Mary Hu, M.D. established a prima facie entitlement to summary judgment. Defendants demonstrated through their production of the documentary evidence and affirmations of Dr. Klein and Dr. Blum that they did not depart from accepted standards of care and did not proximately cause or contribute to plaintiff’s injuries. Defendants demonstrated through the expert affirmations that defendant Dr. Hu properly interpreted plaintiff’s August 27, 2018 imaging including the mammogram and bilateral breast ultrasound that did not reveal cancerous findings. Defendants further demonstrated that defendant Dr. Hu’s role as a radiologist was not to recommend or order further testing, diagnosis, and treatment, but rather her role was merely limited to interpreting the imaging. Defendants further demonstrated through the expert affirmation of Dr. Blum that even had the cancer been diagnosed in 2018, based upon its size and stage, the treatment and prognosis would not have been any different. Finally, defendants demonstrated that they did not negligently hire or retain defendant Dr. Hu or any other personnel. Based upon the foregoing, defendants demonstrated a prima facie entitlement to summary judgment. Plaintiff agreed to withdraw her claims regarding negligent hiring and training, and therefore summary judgment is warranted for these claims. Plaintiff failed to raise triable issues of fact as to whether Dr. Hu departed from the standard of care in interpreting the August 27, 2018 imaging and thereby proximately caused her injuries. (See Paglinawan v. Ing-Yann Jeng, 211 A.D.3d 743 [2d Dept. 2022].) It is first noted that plaintiff’s expert affirmations failed to comply with the requirements of CPLR §2106.1 Plaintiff submitted documents titled “expert affidavit” from Dr. Englander and Dr. Papish, both physicians who were not licensed to practice medicine in New York. While the newly amended statute permits parties to submit affirmations rather than notarized affidavits, plaintiff’s out-of-state experts failed to affirm by the specific language of the statute. Instead, both “affidavits” merely state that the witness hereby affirms under the penalties of perjury, which is not in substantial compliance with CPLR §2106. (See generally Nelson v. Lighter, 179 A.D.3d 933 [2d Dept. 2020].) This Court recognizes that defendants did not oppose plaintiff’s motion on this ground. However, it is incumbent on the Court to uphold the integrity of the laws of New York, and ensure compliance by all parties. Further, the amendment to the statute was not made in an effort to lessen the seriousness of the affirmation and the consequences of making false statements, but instead was meant to reduce the burden of seeking a notary public to obtain a properly sworn affidavit. In reviewing the documents submitted, it is clear that they lack compliance with CPLR §2106 in both form and substance. This error is not harmless or ministerial, as the brief language affirmed to by Dr. Englander and Dr. Papish did not demonstrate their acknowledgement of the import and seriousness of their statements made in the document as required by statute, and therefore cannot be considered by the Court. (CPLR §2106 Advisory Committee Notes ["While attorney always have a professional duty to state the truth in papers, the affirmation under the proposed rule gives attorneys adequate warning of the possibility of prosecution for perjury for a false statement"].) Beyond the procedural defects, plaintiff’s experts also failed to raise triable issues of fact, as their opinions were conclusory and not based upon evidence possessed by defendants at the time the mammogram was reviewed. Contrary to plaintiff’s argument. Dr. Hu, as a radiologist, did not assume a general duty of care to independently diagnose plaintiff’s medical condition. (See Dockery v. Sprecher, 68 A.D.3d 1043, 1046 [2d Dept. 2009] ["Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied upon by the patient"].) Dr. Englander opined that the cancer was detectable and should have been diagnosable based upon the new calcifications in the 2018 imaging that defendant Dr. Hu missed, but failed to explain why these are new calcifications and what prior mammogram imaging he relied upon to render that opinion. As there are no records reflecting prior mammogram imaging and no evidence prior imaging was provided to Dr. Hu when she reviewed and interpreted the films, there are no issues of fact with regard to new calcifications. Dr. Englander’s opinions that these calcifications were clear evidence of cancer is also vague and conclusory, and not supported by the medical records. Dr. Papish also opined that the cancer was present as early as 2016, yet presents no evidence in the medical records to support this argument. He further failed to establish the basis for his opinions, as he acknowledged he did not review the actual mammogram or other breast imaging in rendering his opinions. Dr. Papish’s conclusory opinion that defendants delayed in diagnosing plaintiff’s cancer is without evidentiary support, as it is based upon vague, undefined assertions and failed to specifically refute Dr. Blum’s opinion with regard to the treatment that plaintiff would have undergone depending on diagnosis. As plaintiff failed to raise an issue of fact that her treatment would have been different and result in less injury had she been diagnosed earlier, there are no issues of fact in dispute. (See Bossio v. Fiorillo, 210 A.D.2d 836 [3d Dept. 1994].) Accordingly, defendants Central Radiology, P.C., Central Radiology PC Flushing Imaging Center, and Mary Hu. M.D.’s motion for summary judgment and dismissal of plaintiff’s Complaint pursuant to CPLR §3212 is granted. This constitutes the decision and Order of the Court. Dated: May 22, 2024
