Jоanne Berrouet RIVERS et al., Appellants-Respondents, v. Eliot L. BIRNBAUM et al., Defendants, Robin BLISS et al., Respondents, and Kim Rosary DECASTRO, Appellant.
Supreme Court, Appellate Division, Second Department, New York
October 17, 2012
953 N.Y.S.2d 232
APPEARANCES OF COUNSEL
Catalano Gallardo & Petropoulos, LLP, Jericho (Wayne E. Spaeth of counsel), for appellant.
Rogak & Gibbons, LLP, Uniondale (Louise H. Feffer and David B. De Siver of counsel), for Robin Bliss, respondent.
Anthony P. Vardaro, P.C., Smithtown (Rosemary Martinson of counsel), for Alan MacDonald, respondent.
Bower Monte & Greene, P.C., New York City (Mitchell A. Greene of counsel), for St. Catherine of Siena Medical Center, respondent.
OPINION OF THE COURT
BELEN, J.
This case presents us with an opportunity to clarify the rule regarding a court‘s consideration of an expert‘s affirmation or affidavit submitted on a timely motion for summary judgment where the offering party did not disclose the expert during
The plaintiffs allege that the defendants committed medical malpractice in failing to properly diagnose and advise the allegedly injured plaintiff, Joanne Berrouet Rivers (hereinafter the injured plaintiff), of conditions that led to the development in her of a gynecological cancer known as choriocarcinoma. On March 1, 2006, the injured plaintiff was seen by the defendant Kim Rosary DeCastro, a nurse practitioner and an employee of the defendant Women‘s Health Care of Suffolk County (hereinafter WHC),1 during a health care visit. DeCastro conducted a pelvic exam, which proved to be within normal limits, and assessed that the injured plaintiff was 5 1/2 weeks pregnant. The injured plaintiff was next seen by DeCastro on March 15, 2006. At this visit, the injured plaintiff complained of pain radiating to her back and shortness of breath, and was prescribed amoxicillin to treat chlamydia.
On March 22, 2006, after the injured plaintiff complained of cramping and a “pink, yogurty discharge,” she underwent a sonogram, which showed that there were very faint fetal heart tones and that the fetus was at seven weeks’ gestation. A sonogram from March 29, 2006, showed that the fetus had died.
On April 3, 2006, the injured plaintiff went to the defendant St. Catherine of Siena Medical Center (hereinafter the Medical Center) for a dilation and curettage, which was performed by the defendant Eliot L. Birnbaum. The tissue that was recovered during the procedure was examined by the defendant Alan MacDonald, a pathologist.
According to a surgical pathology report written by MacDonald dated April 5, 2006, the tissue contained no fetal parts. MacDonald made the following diagnosis:
“Uterus, Uterine Contents:
“* Immature chorionic villi, with focal zones of surface trophoblast hyperplasia noted.
“* Necrotic decidual tissue. “* Probable portions of placental implantation site.”
MacDonald indicated in his report that he spoke with Birnbaum on April 4, 2006, about his findings.
At her deposition, DeCastro testified that the recognition and diagnosis of trophoblasic disease is outside her training, knowledge, and experience as a nurse practitioner. She further testified that she generally does not review pathology reports, as such a task is usually performed by Birnbaum or Bliss, or by whichever surgeon performed the dilation and curettage.
By August 2006, the injured plaintiff had become pregnant again. Sonograms during this pregnancy showed that the fetus was growing and developing normally. In February 2007, the injured plaintiff complained of back pain, and a renal ultrasound was ordered. The injured plaintiff underwent renal ultrasounds on February 2, 2007, and March 21, 2007, which were interpreted by nonparty Moses Williams, a radiologist at the Medical Center who prepared reports pertaining to his findings. Williams described in his reports the presence of an echogenic lesion in the mid-section of the right kidney, which he identified as “hyperechoic” and consistent with an angiomyolipoma, which is a benign tumor. On April 2, 2007, the injured plaintiff gave birth to a healthy baby boy by caesarean section. Soon thereafter, in June 2007, she was diagnosed with metastatic choriocarcinoma.
The injured plaintiff and her husband commenced this action in June 2008, asserting, on behalf of the injured plaintiff, causes of action to recover damages for medicаl malpractice, negligent hiring and supervision, and lack of informed consent, and a derivative cause of action on behalf of the injured plaintiff‘s husband. By demand dated August 26, 2008, the plaintiffs requested, pursuant to
Thereafter, the defendants Bliss, MacDonald, the Medical Center, and DeCastro3 (hereinafter collectively the moving defendants) separately moved for summary judgment dismissing the сomplaint and all
The plaintiffs opposed the motions and cross-moved for summary judgment on the issue of liability against MacDonald. In opposing the motions of MacDonald, the Medical Center, and DeCastro, the plaintiffs argued, in pertinent part, that the expert affirmations submitted by those defendants should be precluded because they failed to respond to their request, made during discovery, for expert disclosure pursuant to
In rejecting the plaintiffs’ argument, the Supreme Court held that the failure of MacDonald, the Medical Center, and DeCastro to respond to the plaintiffs’
Turning to the merits of the moving defendants’ motions, the Supreme Court determined that MacDonald, the Medical Center, and DeCastro each established their prima facie entitlement to judgment as a matter of law through the affirmations of their respective experts. The Supreme Court further determined that the affirmations5 of the plaintiffs’ experts submitted in opposition to the motions of MacDonald and the Medical Center were technically defective because the experts were not licensed to practice medicine in New York. However, the Supreme Court determined that the affirmation of the plaintiffs’ expert submitted in opposition to DeCastro‘s motion raised a triable issue of fact as to whether DeCastro departed from accepted standards of medical care. Accordingly, the Supreme Court granted the motions of MacDonald and the Medical Center for summary judgment, and denied DeCastro‘s motion for summary judgment. The Supreme Court granted Bliss‘s motion for summary judgment, concluding that the plaintiffs did not raise a triable issue of fact in opposition to Bliss‘s prima facie case, since they submitted only the affirmation of their attorney (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
With respect to the plaintiffs’ cross motion, in effect, for summary judgment on the issue of liability against MacDonald, the Supreme Court determined that the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law because their out-of-state expert‘s affirmation was technically defective.
The plaintiffs appeal from so much of the Supreme Court‘s order as granted those branches of the separate motions of MacDonald, the Medical Center, and Bliss which were for summary judgment dismissing the complaint insоfar as asserted against each of them, and denied their cross motion, in effect, for summary judgment on the issue of liability against MacDonald. Among other things, the plaintiffs argue that the Supreme Court should not have considered the affirmations submitted by these defendants, since they failed to disclose their experts pursuant to
“Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert‘s opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert‘s testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph” (emphasis added).
Although the statute mandates that, “[u]pon request,” a party “shall” identify the experts it “expects to call as an expert witness at trial” (
ance
When interpreting a law, a court must always look to legislative intent, which “is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction” (
Of note, the next subdivision of the statute,
We recognize that
Turning to the legislative history, as originally enacted in 1962,
Thereafter, the provision was “plucked from” its place in the original medical malpractice litigation reform bill and made applicable to all forms of litigation (see David D. Siegel, 1985 Supp Practice Commentaries, McKinney‘s Cons Laws of NY, Book 7B, CPLR C3101:29, 1990 Supp Pamphlet at 13; Rep No. 95 of NY County Lawyers’ Assn. Comm on State Legislation, Bill Jacket, L 1985, ch 294 at 16). Modeled on rule 26 of the Federal Rules of Civil Procedure, the proposed amendment marked a departure from the prohibition on expert disclosure in civil litigation by generally allowing parties “to conduct basic disclosure regarding experts without court order” (1985 Rep of
Moreover, although the legislature recognized that “the testimony of expert witnesses is often the single most important element of proof in malpractice and other personal injury actions” (Governor‘s Program Bill Mem, Bill Jacket, L 1985, ch 294 at 9), the legislature limited disclosure inasmuch as it did not provide for examinations before trial of expert witnesses (see Rep No. 95 of NY County Lawyers’ Assn. Comm on State Legislation, Bill Jacket, L 1985, ch 294 at 16; compare id., with
In its current form,
Based on the plain language and intent of the statute, which do not automatically preclude experts disclosed near the commencement of trial from testifying at trial, there is no basis for concluding that a court must reject a party‘s submission of an expert‘s affidavit or affirmatiоn in support of, or in opposition to, a timely motion for summary judgment solely because the expert was not disclosed pursuant to
We recognize that certain decisions of this Court may have been interpreted as standing for the proposition that a party‘s failure to disclose its experts pursuаnt to
After the completion of discovery, J.C. moved for summary judgment dismissing, inter alia, the aforementioned cross claims. In opposition, Lowe submitted, among other things, affidavits from purported experts in the flooring and air conditiоning industries, opining that the flooring and insulation systems in the home were faulty, and estimating the costs to repair each system. A majority of the panel of Justices affirmed the determination of the Supreme Court to grant J.C.‘s motion for summary judgment, concluding that J.C. established its prima facie entitlement to judgment as a matter of law, and that Lowe failed to raise a triable issue of fact in opposition. As to Lowe‘s opposition, the majority stated that
“[t]he Supreme Court did not improvidently exercise its discretion in declining to consider the affidavits of the purported experts proffered by Lowe, since Lowe failed to identify the experts in pretrial disclosure and served the affidavits after the note of issue and certificate of readiness attesting to the completion of discovery were filed in this matter” (id. at 863 [emphasis added]).
The majority further explained:
“As it is undisputed that Lowe failed to identify any experts in pretrial disclosure whom he intended to call to testify at trial concerning whether the work was faulty or the extent of his alleged compensatory damages arising from that breach of warranty, and did not proffer any explanation for such failure, it was not an improvident exerсise of discretion for the Supreme Court to have determined that the specific expert opinions set forth in the affidavits submitted in opposition to the motion for summary judgment could not be considered at trial” (id.).
Additionally, in addressing the dissent by Justice Carni, which concluded that
We now clarify that the fact that the disclosure of an expert pursuant to
We further reiterate that a trial court, under its general authority to supervise disclosure deadlines, and consistent with
As clarified, this rule is consistent both with the statute and with the general purpose of summary judgment itself. Summary judgment is the procedural equivalent of a trial and “must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable” (Dykeman v Heht, 52 AD3d 767, 769 [2008]). In considering a motion for summary judgment, the function of the court is not to determine issues of fact or credibility, but merely to determine whether such issues exist (see Gitlin v Chirinkin, 98 AD3d 561 [2012]; Dykeman v Heht, 52 AD3d at 769; Tunison v D.J. Stapleton, Inc., 43 AD3d 910 [2007]).
The preclusion of an expert‘s affirmation or affidavit submitted in the context of a motion for summary judgment based solely on a party‘s failure to disclose the expert pursuant to
In the matter at bar, the Supreme Court providently exercised its discretion in considering the experts’ affirmations submitted by the moving defendants, and the additional affidavits submit-
ted
Turning to the merits of the moving defendants’ respective motions, in a medical malpractice action, the requisite elements of proof are a deviation or departure from accepted community standards of medical care and evidence that such departure was a proximate cause of injury or damage (see Orsi v Haralabatos, 89 AD3d 997, 998 [2011], lv granted 18 NY3d 809 [2012]; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842 [2008]; Elliot v Long Is. Home, Ltd., 12 AD3d 481, 482 [2004]). A defendant seeking summary judgment in a medical malpractice action bears the burden of establishing, prima facie, either that there was no deviation or departure from the applicable standard of care or that any alleged departure did not proximately cause the plaintiff‘s injuries (see Swanson v Raju, 95 AD3d 1105, 1106 [2012]). In opposition, thе plaintiff must demonstrate the existence of a triable issue of fact only as to the elements on which the defendant has met his or her initial burden (see Stukas v Streiter, 83 AD3d 18, 23-24 [2011]).
Here, in support of their separate motions for summary judgment, MacDonald and the Medical Center demonstrated their prima facie entitlement to judgment as a matter of law by submitting, inter alia, affirmations from experts that established that these defendants did not depart from good and accepted standards of medical care and that, in any event, any departures were not a proximate cause of the injured plaintiff‘s injuries. MacDonald‘s expert, Leonard B. Kahn, a board-certified pathologist, opined that the pathology slides from the injured plaintiff‘s dilation and curettage confirm that the tissue specimen is a missed abortion with no evidence of a hydatidiform mole. Kahn observed that the slides showed the presence of immature chorionic villi, the majority of which were “well vascularized and normal in caliber,” while other villi “showed hydropic changes without trophoblastic overgrowth,” and that “[f]ocally, there is hyperplasia or overgrowth of syntrophoblаstic and cy-
totrophoblastic
In opposition to MacDonald‘s motion, the plaintiffs submitted, inter alia, an affidavit from pathologist Theonia Boyd, a board-certified pathologist licensed to practice in Massachusetts, which was notarized in Massachusetts but not accompanied by a certification in accordance with
As to the substance of Boyd‘s affidavit, she opined that MacDonald departed from good and accepted medical practice by misinterpreting the injured plaintiff‘s pathology slides in light of the “unequivocal features of a hydatidiform molar pregnancy” allegedly revealed therein. Notably, however, Boyd failed to describe or quantify in any way the “unequivocal features of a hydatidiform molar pregnancy” that she alleged MacDonald failed to observe. Boyd‘s opinion is, therefore, conclusory and fails to raise a triable issue of fact as to whether MacDonald departed from good and accepted medical practice (see Ahmed v New York City Health & Hosps. Corp., 84 AD3d 709, 711 [2011]; Dunn v Khan, 62 AD3d 828, 829 [2009]). In any event, Boyd‘s assertion that the correct diagnosis would have led to an appropriate follow-up plan is conclusory and speculative, and thus, fails to raise a triable issue of fact as to causation (see Forrest v Tierney, 91 AD3d 707, 709 [2012]; Graziano v Cooling, 79 AD3d 803, 805 [2010]). Accordingly, the Supreme Court properly granted that branch of MacDonald‘s motion which was for summary judgment dismissing the complaint insofar as asserted against him.
In support of its motion for summary judgment, the Medical Center demonstrated its prima facie entitlement to judgment as a matter of law by submitting, inter alia, an аffirmation from David A. Fisher, a board-certified diagnostic
The record reflects that, in opposition to the Medical Center‘s motion, the plaintiffs submitted a redacted affirmation from an unnamеd board-certified radiologist who is licensed to practice in Connecticut. Like Boyd‘s affirmation, this redacted affirmation, which indicates that it was drafted in Connecticut, was not accompanied by a certification in accordance with
In any event, the affirmation is speculative and conclusory, as it opines that the Medical Center, through its radiologist, incorrectly interpreted the ultrasound studies as indicative of angiomyolipoma, rather than choriocarcinoma, without setting forth any basis for this opinion (see Ahmed v New York City Health & Hosps. Corp., 84 AD3d at 711; Dunn v Khan, 62 AD3d at 829). Further, the vague assertion that the Medical Center had a “duty to recommend an additional work-up, specifying studies that would more likely than not have resulted in the correct diagnosis,” was speculative and failed to raise a triable issue of fact, as this opinion failed to set forth the rationale for such additional studies or the specific additional studies the Medical Center should have recommended (see Ahmed v New York City Health & Hosps. Corp., 84 AD3d at 711; Dunn v Khan, 62 AD3d at 829). Similarly, the affirmation‘s conclusion that, to the extent the Medical Center‘s expert radiologist “avers otherwise,
In support of her motion for summary judgment, DeCastro demonstrated her prima facie entitlement to judgment as a matter of law by submitting, inter alia, an affirmation from John L. Lovecchio, who is board certified in obstetrics and gynecology, and the sub-specialty of gynecological oncology. Lovecchio‘s affirmation established that DeCastro did not depart from good and accepted standards of medical care. Specifically, Lovecchio averred that DeCastro provided the injured plaintiff with appropriate care and treatment during her visits on March 1, 2006, and March 15, 2006, “insofar as she obtained a proper medical history; conducted appropriate physical examinations; and arranged for appropriate follow up diagnоstic test studies.” Moreover, since MacDonald‘s pathology report, which was based on the dilation and curettage procedure performed at the Medical Center on April 3, 2006, indicated “essentially a normal finding” that did not indicate that the injured plaintiff “was in a potentially precancerous state for development of choriocarcinoma,” Lovecchio opined, with a reasonable degree of medical certainty, that DeCastro‘s failure to undertake any follow-up plan based on the pathology report was not a departure from good and accepted medical practice.
Lovecchio further averred that DeCastro‘s act of ordering a follow-up human chorionic gonadotropin (hereinafter HCG) test for the injured plaintiff during the injured plaintiff‘s May 17, 2006, visit was within good and accepted standards of medical care. HCG testing on July 26, 2006, revealed that the injured plaintiff had an HCG level of 5, which both showed that she was not pregnant and “definitely ruled out the possible existence of a molar pregnancy and/or a choriocarcinoma up to this point.” Moreover, HCG testing between May and August 2006 followed a normal trajectory, inasmuch as the HCG levels decreased following the first pregnancy, which ended in a miscarriage, and increased at the beginning of the second pregnancy. Taken together, MacDonald‘s pathology report and the HCG testing between May 2006 and August 2006 “consistently demonstrated that the [injured] [p]laintiff did not have a
In opposition to DeCastro‘s motion, the plaintiffs submitted an affirmation from Lawrence Ross, who did not specify his qualifications, except to describe himself as a “physician licensed to practiсe in NY . . . with more than 50 years’ experience,” who was “familiar with the standards of care for nurse practitioners.” Even assuming that Ross was a qualified expert on the practice of nurse practitioners, his affirmation was conclusory and speculative and, thus, failed to raise a triable issue of fact as to whether DeCastro departed from good and accepted medical practice. For example, although Ross opined that the statement in MacDonald‘s pathology report—“[r]esults of histologic findings are discussed with Dr. Birnbaum on April 4, 2006. A differential diagnosis is renewed to interpret the histologic findings. Options for the followup care of the patient are discussed[ ]“—which he asserts DeCastro admits to having read,9 was a “‘red flag’ that should alert the reader that something very unusual was going on,” he failed to explain why the statement was a red flag or specify the accepted standard of care. Instead, he merely concluded that DeCastro‘s failure to follow up with a physician in light of the alleged red flag was an “obvious departure from the standard of care.” Accordingly, Ross‘s opinion that DeCastro deрarted from good and accepted medical practice by not following up on the alleged red flag in the pathology report was speculative and conclusory, and, thus, did not raise a triable issue of fact (see Ahmed v New York City Health & Hosps. Corp., 84 AD3d at 711; Dunn v Khan, 62 AD3d at 829). Consequently, the Supreme Court should have granted that branch of DeCastro‘s motion which was for summary judgment dismissing the complaint insofar as asserted against her.
Finally, we turn to Bliss‘s motion for summary judgment. Bliss established, prima facie, through her affidavits and the affirmation of her expert, that she was not involved with
The plaintiffs’ remaining contentions are without merit.
Accordingly, the order is affirmed insofar as appealed from by the plaintiffs. In addition, the order is reversed insofar as appealed from by DeCastro, on the law, and that branch of DeCastro‘s motion which was for summary judgment dismissing the complaint insofar as asserted against her is granted.
Miller, J. (concurring in the result in the following memorandum). I concur in the result reached by my colleagues to affirm the order insofar as appealed from by the plaintiffs and reverse the order insofar as appealed from by the defendant Kim Rosary DeCastro. I write separately to express my views regarding the duty
As enacted in 1962,
In 1985, the legislature enacted legislation, known as the Medical Malpractice Reform Act, which was intended to “expedite the resolution of malpractice claims and thereby reduce the cost of malpractice litigation” (Tewari v Tsoutsouras, 75 NY2d 1, 7 [1989]; see L 1985, ch 294, § 1; see also Governor‘s Program Bill Mem, Bill Jacket, L 1985, ch 294 at 4). As one of the steps intended to expedite litigation and facilitate settlements, section 4 of the legislation “require[d] the disclosure of the qualifications of experts and the substance of their testimony prior to trial in civil actions” (Governor‘s Program Bill Mem, Bill Jacket, L 1985, ch 294 at 4; see Tewari v Tsoutsouras, 75 NY2d at 7; see also 1985 Rep of Advisory Comm on Civ Prac at 43, reprinted in 1985 McKinney‘s Session Laws of NY at 3378).
The rationale for expanding the scope of discovery to include experts was provided in the Governor‘s Program Bill Memorandum:
“Although virtually all other information is now shared by litigants in civil practice, information concerning expert witnesses and their opinions remains shielded from disclosure. Since the testimony of expert witnesses is often the single most important element of proof in malpractice and other personal injury actions, sharing information concerning these opinions encourages prompt settlement by providing both parties an accurate measure
of the strength of their adversaries’ case. In addition, both parties will be discouraged from asserting unsupportable claims or defenses, knowing that they will be required to disclose what, if any expert evidence will support their allegations” (Bill Jacket, L 1985, ch 294 at 9-10).
Though the legislature was specifically motivated to reduce the cost of litigating medical malpractice actions when it amended
“each party shall identify each person whom the party expects to call as an expert witness at triаl and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert‘s opinion” (
CPLR 3101 [d] [1] [i] ).
Although the statute mandates that “[u]pon request” a party “shall” identify the experts it “expects to call as an expert witness at trial” (
The statute provides little guidanсe as to how to determine when a failure to disclose is untimely, as it only makes reference to an “appropriate” amount of time (
It is evident from the plain language of the statute, which contemplates disclosure “before the commencement of trial” (
Indeed, the filing of a note of issue and certificate of readiness for trial requires a party to represent to the court that discovery is complete and that there are no outstanding requests for discovery (see
A court has the discretionary authority to impose a penalty on a party for its failure to comply with discovery deadlines imposed by
However,
However, as it is often stated, ”
Some commentators may have interpreted this Court‘s case law as standing for the proposition that a party‘s failure to disclose its experts pursuant to
In sum, under this Court‘s precedent, the failure of a party to exchange expert information pursuant to
Where, in the provident exercise of its discretion, a court determines that preclusion is an appropriate remedy, such a determination
As set forth in the majority opinion, given the circumstances of this case, the Supreme Court providently exercised its discretion when it declined to preclude the experts’ affirmations submitted by Bliss, MacDonald, the Medical Center, and DeCastro in support of their respective motions for summary judgment. Accordingly, I concur in the result reached by my colleagues to affirm the order insofar as appealed from by the plaintiffs and reverse the order insofar as appealed from by DeCastro.
Balkin, J.P., and Hall, J., concur with Belen, J.; Miller, J., concurs in a separate opinion.
Ordered that the order is affirmed insofar as appealed from by the plaintiffs; and it is further,
Ordered that the order is reversed insofar as appealed from by the defendant Kim Rosary DeCastro, on the law, and that branch of the motion of the defendant Kim Rosary DeCastro which was for summary judgment dismissing the complaint insofar as asserted against her is granted; and it is further,
Ordered that one bill of costs is awarded to the defendants appearing separately and filing separate briefs, payable by the plaintiffs.