Elkin v. Goodman

24 A.D.3d 717, 808 N.Y.S.2d 405
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 27, 2005
StatusPublished
Cited by11 cases

This text of 24 A.D.3d 717 (Elkin v. Goodman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elkin v. Goodman, 24 A.D.3d 717, 808 N.Y.S.2d 405 (N.Y. Ct. App. 2005).

Opinion

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Dutchess County (Fagones, J.) dated July 16, 2004, which, upon the granting of the defendants’ motions to dismiss the complaint, made at the close of the plaintiffs’ case, dismissed the complaint.

Ordered that the judgment is modified, on the law, by deleting the provision thereof dismissing the plaintiffs medical malpractice claims against Jack Goodman and Jack Goodman, M.D., EC., for (1) allegedly misreading magnetic resonance imagings of the plaintiffs brain tumor between 1992 and 1995 and (2) failing to remove the tumor between 1994 and 1995; as so modified, the judgment is affirmed, with costs to the defendants Russell Karp and Dutchess Radiology Associates, EC., payable by the plaintiffs, and costs to the plaintiffs payable by the defendants Jack Goodman and Jack Goodman, M.D., EC., those claims are reinstated insofar as asserted against the defendants Jack Goodman and Jack Goodman, M.D., EC., and the action against the remaining defendants is severed.

[718]*718The salient facts concerning the medical malpractice claims of the plaintiff Jerome Elkin (hereinafter the plaintiff) are set forth in a prior appeal (see Elkin v Goodman, 285 AD2d 484 [2001]). In the prior appeal, we determined that summary judgment was improper where a question of fact existed as to whether the plaintiffs’s medical malpractice claims against the defendants Russell Karp and Dutchess Radiology Associates, EC. (collectively hereinafter DRA), were tolled by the continuous treatment doctrine. Following determination of that appeal, the parties proceeded to trial. The issue on this appeal is whether the trial court properly granted the defendants’ motions to dismiss the complaint, made at the close of the plaintiffs proof.

A medical malpractice action must be commenced within two years and six months of the act, omission, or failure complained of (see CFLR 214-a), but may be tolled until the end of treatment if the plaintiff establishes that the defendant provided continuous treatment, which is defined as “when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint” (Borgia v City of New York, 12 NY2d 151, 155 [1962]; see also Cooper v Kaplan, 78 NY2d 1103 [1991]). Here, the plaintiff was diagnosed with an acoustic neuroma in May 1992, and his internist referred him to the defendant Dr. Jack Goodman, a neurosurgeon, who in turn referred the plaintiff for periodic magnetic resonance imaging (hereinafter MRI) scans. DRA performed MRI scans on the plaintiff in May 1992, December 1992, July 1993, June 1994, and August 1995, and the plaintiff commenced this action on January 8, 1998. In general, where a diagnostician, such as a radiologist, performs a “discrete and complete” service, this will not be considered continuous treatment (see McDermott v Torre, 56 NY2d 399, 411 [1982]; Davis v City of New York, 38 NY2d 257 [1975]), unless the diagnostician “has a continuing or other relevant relationship with the patient,” or “act[s] as an agent for the doctor or otherwise act[s] in relevant association with the physician” (McDermott v Torre, supra at 408).

The plaintiffs’ evidence at trial did not establish a need to depart from the general rule. The evidence demonstrates that Dr. Goodman, the plaintiffs neurosurgeon, made the referrals for the plaintiffs MRI scans at DRA, which demonstrated that neither the plaintiff nor DRA anticipated that DRA would provide the plaintiff with ongoing treatment (cf. Young v New York City Health & Hosps. Corp., 91 NY2d 291 [1998]; Richardson v Orentreich, 64 NY2d 896 [1985]). In other words, the [719]*719plaintiff did not have an appointment with DRA unless and until Dr. Goodman scheduled that appointment on his behalf (cf Garcia-Alano v Guttman Breast Diagnostic Inst., 188 AD2d 262 [1992]). Moreover, the plaintiffs’ proof at trial indicated that although DRA sent Dr. Goodman a copy of each MRI scan and the accompanying radiologist report, Dr. Goodman reviewed the DRA reports for each MRI scan, but made his own independent analysis as to the growth, if any, of the plaintiffs tumor. Further, based on his analysis, Dr. Goodman decided the appropriate course of treatment, such as to continue monitoring the tumor through further MRIs, perform surgery, or proceed with other alternatives. Moreover, DRA made no decisions as to the plaintiff’s treatment (cf. Pace v Caron, 232 AD2d 617 [1996]). Under the circumstances, Dr. Goodman made his treatment assessments based on his own review of the MRIs and DRA reports, not in reliance on DRA’s reports, and thus Dr. Goodman’s treatment of the plaintiff cannot be imputed to DRA.

Further, although at least one radiologist at DRA reviewed prior MRIs when generating his MRI report, such conduct, standing alone, does not alter the fact that each MRI scan and DRA report was a complete and discrete service (see Davis v City of New York, supra at 260; Solomonik v Elahi, 282 AD2d 734 [2001]; Noack v Symenow, 132 AD2d 965 [1987]). Accordingly, we find that the Supreme Court properly dismissed the plaintiffs medical malpractice claims against DRA arising out of the May 1992 to July 1994 MRI scans as time-barred.

The Supreme Court properly dismissed the plaintiffs medical malpractice claim against DRA arising out of the alleged misreading of the August 1995 MRI for failure to establish that any alleged negligence was a substantial cause of the plaintiffs injuries. Although one of the plaintiffs experts, Dr. Sondra Pfeffer, a radiologist, testified that DRA negligently misread the August 1995 MRI by failing to accurately measure the tumor and reporting that the tumor showed no significant change compared to prior MRIs, the expert’s testimony also set forth that DRA misread the previous MRIs from May 1992, December 1992, July 1993, and June 1994 by inaccurately measuring the tumor, providing no measurements in some of those reports, and reporting “no significant change” in the tumor’s size, shape, and appearance in each of those reports, all of which she testified separately and collectively were substantial causes of the plaintiffs injuries. More specifically, that same expert testified that the June 1994 MRI showed that the tumor was compressing on the brain stem, a fact which one of the plaintiffs treating physicians, Dr. Alain de Lotbiniere, testified should have prompted the tumor’s removal at that time.

[720]*720Another of the plaintiff’s experts, Dr. Joseph Waltz, a neurosurgeon, opined that the substantial causes of the plaintiffs injuries were Dr. Goodman’s (1) decision to observe the tumor in 1992, rather than remove it, (2) failure to subsequently remove the tumor after later MRIs showed the tumor’s growth, and (3) failure to remove the tumor in November 1995 when the plaintiffs facial symptoms worsened. Moreover, the plaintiff testified that he experienced worsening facial symptoms in late 1993 or early 1994, and told Dr. Goodman of that fact between December 1993 and February 1994, but that Dr. Goodman replied that the tumor showed “[n]o change.” As such, the plaintiff’s own testimony corroborates the testimony of his experts that substantial causes of his injuries were present prior to August 1995. Under the circumstances, the trial court properly dismissed the medical malpractice claims against DRA arising out of DRA’s alleged misreading of the August 1995 MRI.

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Cite This Page — Counsel Stack

Bluebook (online)
24 A.D.3d 717, 808 N.Y.S.2d 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elkin-v-goodman-nyappdiv-2005.