The defendants motion for summary judgment under New York Civil Practice Laws and Rules (CPLR) § 3212 is denied.

The plaintiff, Fern B. Mikus is the administrator of the estate of her husband Paul F. Mikus (Mr. Mikus). Mr. Mikus sought medical attention for heart disease from his internist, Mark Bogin, M.D. (Dr. Bogin) in December, 2002. Dr. Bogin referred Mr. Mikus to Soad Bekheit-Saad, MD (Dr. Bekheit-Saad), a cardiologist, on January 6, 2003 for electro-physiological evaluation. Dr. Bekheit-Saad recommended that an implantable cardiac defibrillator be placed in Mr. Mikus' chest. Mr. Mikus entered the hospital on January 14, 2003 and Frank Rosell, MD (Dr. Rosell), a thoracic surgeon, implanted the defibrillator on January 15, 2003. Dr. Rosell ordered a chest x-ray immediately following the implantation of the defibrillator to confirm the correct placement of the defibrillator. Dr. Rosell reviewed the chest x-ray and confirmed that the placement of the defibrillator was satisfactory, but the radiologist's interpretation was not then available for review. Mr. Mikus was discharged from the hospital on January 16, 2003, by a hospital resident at the direction of Dr. Bekheit-Saad who was Mr. Mikus' [*2]attending physician for the hospitalization.

The chest x-ray ordered by Dr. Rosell was interpreted by a radiologist, George Ciporkin, M.D. (Dr. Ciporkin), on the day of discharge. The pertinent part of the radiologist's interpretation stated:

Impression: Presence of a 1.9 cm density projecting at the level of the right first anterior rib, which may represent the presence of costochondral calcification associated with the right first anterior rib. However, the acquisition of a follow-up frontal radiograph of the chest is suggested within three months for assessment of stability and exclusion of the presence of a potential focal pulmonary nodule, if clinically indicated.

Dr. Rosell, as the primary surgeon, Dr. Bekheit-Saad, as the attending cardiologist, and the resident who had discharged Mr. Mikus, never document having seen the radiologist's report. Dr. Bekheit-Saad saw Mr. Mikus as an outpatient on several occasions for heart disease. No follow-up chest x-ray was requested by Dr. Bekheit-Saad or Dr. Rosell.

On July 6, 2004, a chest x-ray was obtained by Dr. Bogin because Mr. Mikus was complaining of coughing. This x-ray aroused Dr. Bogin's suspicion and he ordered a computerized tomography (CT) scan of the lungs which was done on July 13, 2004. Because of the CT findings, a lung biopsy was performed on July 22, 2004. The biopsy identified a non-small cell carcinoma of the lung. Chemotherapy was begun in August of 2004. However, on October 21, 2004, Mr. Mikus' deteriorating condition caused him to seek admission to the hospital. On October 30, 2004 Paul F. Mikus died. The death certificate states the cause of death was "Lung Cancer."

Procedural History

The plaintiff commenced a medical malpractice and wrongful death action on October 25, 2006, the defendants. Dr. Rosell, Dr. Bekheit-Saad, and Dr. Ciporkin, and Staten Island University Hospital (SIUH) were named in the original action. The plaintiff discontinued the actions against Dr. Ciporkin and SIUH. The defendants, Dr. Rosell and Dr. Bekheit-Saad, moved for dismissal of the action on the grounds of New York Civil Practice Law and Rules (CPLR) § 3211 (a) (5), stating the claims were time-barred. An order dated January 16, 2008, denied the motion to dismiss Dr. Bekheit-Saad from the action and dismissed Dr. Rosell from the action. On May 5, 2009, the Appellate Division, Second Department, reinstated Dr. Rosell on the wrongful death action, but not the medical malpractice cause of action. On March 17, 2010, the plaintiff voluntarily discontinued the medical malpractice action against Dr. Bekheit-Saad. The wrongful death action continues against Dr. Rosell and Dr. Bekheit-Saad who now move, after discovery has been completed, for summary judgment pursuant to CPLR § 3212.

Dr. Grossbard, a medical oncologist, only addressed the issue of proximate cause in his opinion.^[FN1] Dr. Grossbard states that the findings on the chest x-ray of January 15, 2003 were not the cancerous lesions found in July 2004. Dr. Grossbard therefore concludes that the failure to perform a repeat chest x-ray was not the proximate cause of Mr. Mikus' injury or death.^[FN2]

Dr. Grossi, a thoracic surgeon, provides an affidavit stating that Dr. Rosell and Dr. Bekheit-Saad did not depart from good and accepted standard of care in the treatment of Mr. Mikus^[FN3]. Dr. Grossi states that it was Dr. Rosell's expectation that a report would be placed in Mr. Mikus' chart and that Dr. Rosell would have been personally and individually contacted by a radiologist had there been an abnormal finding. Dr. Grossi finally concludes that Dr. Rosell did not depart from good and accepted medical practice.^[FN4]

The plaintiff's expert, Dr. Levine, a medical oncologist states, that both Dr. Rosell and Dr. Bekheit-Saad departed from good and accepted standards in the care rendered to Mr. Mikus.^[FN5] Dr. Levine specifies that both Dr. Rosell and Dr. Bekheit-Saad deviated from the standard of care by not reviewing the radiologist's interpretation of the January 15, 2003 x-ray. More specifically, Dr. Rosell failed to seek out the results of the radiologist' interpretation or the chest x-ray he had ordered.^[FN6] When Dr. Bekheit-Saad completed Mr. Mikus' discharge summary, she failed to confirm the official results of the chest x-ray and failed either to follow the recommendations in the radiologist' report, or to refer Mr. Mikus to an appropriate specialist. Dr. Levine states that SIUH had a policy and procedure originating from the Department of Radiology that required notifying the ordering physician only for acute trauma and emergency department cases. Dr. Levine concludes that Dr. Rosell was responsible for reviewing the radiologist's interpretation of the x-ray he ordered, and that Dr. Bekheit-Saad was responsible for comprehensively completing the dictated chart by finding the radiologist's interpretation.^[FN7] Dr. Levine's stated opinion is that a timely chest x-ray or computerized tomography (CT) scan would have disclosed Mr. Mikus' lung [*4]cancer.^[FN8] Dr. Levine concludes that deviations from good and accepted practices were the proximate cause of Mr. Mikus' death.^[FN9]

A motion for summary judgment "permits a party to show, by affidavit or other evidence, that there is no material issue of fact to be tried and that judgment may be directed as a matter of law."^[FN10] Under CPLR § 3212, a motion for summary judgment requires that "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."^[FN11] Notwithstanding facts presented by any party, "the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."^[FN12] All evidence must be examined in the light most favorable to the non-moving party;^[FN13] and the non-movant must be given the benefit of every favorable inference.^[FN14]

Here, the defendant's expert, Dr. Grossbard states that the density seen on the chest x-ray of January 15, 2003 was not the proximate cause of Mr. Mikus' death. Dr. Levine explicitly disputes that opinion. Dr. Grossi implies that there was no accepted standard that required Dr. Bekheit-Saad and Dr. Rosell, to obtain the radiologist's definitive evaluation of the January 15, 2003 chest x-ray and that Dr. Rosell expected that he would be called by a radiologist if there was an abnormality seen by the radiologist. Dr. Levine disputes each of these points.

The defendant's reply states that the plaintiff's opposition fails because it was not based on facts or medical science, and that Dr. Levine is not an oncologist or radiologist.^[FN15] Dr. Levine describes himself as a specialist in medical oncology without stating whether he is board certified in oncology.

However, it is the jury that assigns a weight to expert testimony when it makes its decision.^[FN16] [*5]Plaintiff implies that Dr. Levine should have reviewed Mr. Mikus' actual chest x-rays and chest CT scans himself, and did not do so.^[FN17] Dr. Levine evidently relied upon written reports. If the acceptance of radiologists' transcribed reports is standard practice of experts in the field, then the written reports may form the basis of an expert opinion.^[FN18] To further counter Dr. Levine, the defendants assert that the policies and procedures originating from the Department of Radiology do not apply to the entire SIUH staff.^[FN19] The defendant also takes issue with Dr. Levine's suggestion that further x-rays should have been immediately ordered to follow-up the chest x-ray of January 15, 2003. This issue is not dispositive, but even if the court were to concede this last point, and were to eliminate this opinion from consideration, there remain issues of fact that need to be determined.

The plaintiff states that "On October 21, 2004, decedent was admitted to Memorial Sloan-Kettering Cancer Center with sudden onset swelling in his left lower extremity and increased shortness of breath. On October 24, 2004, a CT of decedent's head confirmed the new diagnosis of a stroke. On October 30, 2004, decedent died."^[FN20] This is an incomplete view of Mr. Mikus' final hospitalization. Review of records do show that a hemorrhagic stroke was identified. A complete dictated evaluation also documented, "worsening of bilateral patchy infiltrates. 2. Enlarging liver metasteses. [and] 3. New extensive areas of splenic infarction ..."^[FN21] The single cause of death noted on Mr. Mikus' death certificate is "Lung Cancer".^[FN22] It is disingenuous to imply that Mr. Mikus died of a stroke and was not dying of lung cancer.

This court finds material issues of disputed facts, to include: whether Dr. Rosell and Dr. Bekheit-Saad were required to make themselves aware of the radiologist's interpretation of Mr. Mikus' chest x-ray of January 15-16, 2003; whether Dr. Rosell and Dr. Bekheit-Saad should have ordered the suggested repeat chest x-rays, or should have referred Mr. Mikus to another physician to evaluate the radiological findings; and whether the failure to repeat the chest x-rays suggested was the proximate cause of Mr. Mikus' death. Since there are disputed issues of fact, the motions of Dr. Bekheit-Saad and Dr. Rosell for summary judgment cannot be granted.

Accordingly it is hereby: [*6]

ORDERED, that the motion of the defendants Frank Rosell, M.D. and Soad Bekheit-Saad, M.D. for summary judgment is denied in the entirety; and it is further

ORDERED, that the caption be amended to read:

SUPREME COURT OF THE STATE OF NEW YORK Index No.: 103258/06

COUNTY OF RICHMONDDCM PART 3

FERN B. MIKUS,

Administrator of the Estate of Paul F. Mikus, Decedent

and FERN B. MIKUS, Individually,

Plaintiffs

against

DR. FRANK ROSELL, and

DR. SOAD BEKHEIT-SAAD,

Defendants

and it is further

ORDERED, that the parties shall return to DCM part 3 for a pre-trial conference on Monday, October 18, 2010 at 9:30 AM.

ENTER,

DATED: August 24, 2010

Joseph J. Maltese

Justice of the Supreme Court