Doane v. United States
369 F. Supp. 3d 422
| N.D.N.Y. | 2019Background
- Ronald Doane sued under state law (CRMC, two physicians) and the FTCA (United States/FHN) alleging failure to timely diagnose and obtain informed consent for a right renal mass discovered on imaging beginning March 14, 2006 and documented again in 2009–2011; final diagnosis was a 6.1 cm papillary renal cell carcinoma (T1b) removed by radical nephrectomy in March 2012.
- Multiple CT and ultrasound reports (2006, 2009, 2010, 2011) documented a growing right renal lesion; earlier reports recommended sonography/contrast imaging, but Doane was not told or followed up until December 2011.
- Plaintiff moved to amend to add a 2006-based negligence claim (and to amend his SF-95); defendants moved for summary judgment and to preclude portions of plaintiff’s expert opinion tied to 2006.
- Disputed expert opinions: plaintiff’s experts (Weinberg, Bernie) say delayed diagnosis harmed treatment options and prognosis; defendants’ experts (Poiesz, Kaufman) say tumor stage remained T1b throughout so delay did not change prognosis or available definitive treatment.
- Court concluded amendment to add the 2006 claim (and an amended SF-95) was untimely and futile under state and federal limitations and FTCA exhaustion rules; portions of Dr. Bernie’s opinions addressing pre-6/30/2009 negligence were stricken, but summary judgment was denied because conflicting expert testimony created triable issues on causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Leave to amend to add 2006 negligence claim and amend SF-95 | Amendment is timely by relation-back or equitable tolling; FHN only discovered to have received 2006 report in discovery; no prejudice to defendants | Amendment is untimely, futile, and FTCA administrative exhaustion absent (SF-95 did not include 2006); defendants prejudiced; continuous-treatment doctrine inapplicable | Denied: amendment futile and untimely; FTCA claim for 2006 unexhausted so no jurisdiction; equitable tolling/relation-back rejected |
| Preclusion/striking of expert opinions on 2006 conduct (Dr. Bernie) | Expert may testify on causal effect of the 2006 missed follow-up | Portions tied to dismissed 2006 claim are irrelevant/prejudicial | Granted in part: testimony/opinions about negligence prior to 6/30/2009 precluded; 2006 facts may be used only as background medical history |
| Statute of limitations and accrual for 2006 claim under NY law and FTCA | Accrual tolled until plaintiff learned of cancer (Dec 2011); continuous treatment or discovery rules save claim | Plaintiff knew of 2006 imaging by 2012 and had records; failure to treat is not continuous treatment; equitable tolling not warranted | NY continuous-treatment doctrine does not apply to failure-to-diagnose; 2006 claim barred by NY and FTCA limitations; equitable tolling/relation-back rejected |
| Summary judgment on malpractice/causation for claims from 2009–2011 | Delay from 2009–2011 harmed prognosis and options (e.g., ablative therapy when smaller); conflicting expert causation evidence | Tumor remained stage T1b from 2009–2012; treatment options and survival unchanged; delay did not proximately cause injury | Summary judgment denied: genuine dispute exists because experts offer conflicting causation opinions that must be decided by a jury |
Key Cases Cited
- Foman v. Davis, 371 U.S. 178 (1962) (court should freely give leave to amend absent undue delay, bad faith, or futility)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standards)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (genuine issue for trial standard on summary judgment)
- Massie v. Crawford, 78 N.Y.2d 516 (1991) (continuous-treatment doctrine explained)
- Nykorchuck v. Henriques, 78 N.Y.2d 255 (1991) (failure to treat/diagnose is not a course of continuous treatment)
- Mottahedeh v. United States, 794 F.3d 347 (2d Cir. 2015) (standards for equitable tolling/diligence-discovery rule)
- Wallace v. Kato, 549 U.S. 384 (2007) (equitable tolling is rare; extraordinary circumstances required)
- Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76 (2d Cir. 2005) (FTCA administrative exhaustion is jurisdictional)
- McGowan v. United States, 825 F.3d 118 (2d Cir. 2016) (plaintiff bears burden to prove subject-matter jurisdiction and exhaustion)