Bablu v. Kvetny

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2024 NY Slip Op 31007(U)

MOHAMMED BABLU and PARVEEN SULTANA, Plaintiffs, v. GENNADIY KVETNY, M.D.. SUNIL MEHRA, M.D., FAMILY HEALTH CENTER OF MIDDLE VILLAGE, WYCHOFF HEIGHTS MEDICAL CENTER, and MOUNT SINAI HOSPITAL, Defendants.

Index No. 507896/2020

Supreme Court, Kings County

March 21, 2024

Unpublished Opinion

PRESENT: Hon. Genine D. Edwards, Justice.

DECISION & ORDER

GENINE D. EDWARDS, JUDGE.

The following e-filed paper(s) read herein: NYSCEF Doc. No.

Notice of Motion, Memorandum of Law Affidavits, Affirmations and Exhibits......................................74-101

Affirmation in Opposition, Affidavit, and Exhibits...................................................................106-119

Reply Affirmation............................................................121

In an action to recover damages for medical practice, negligence loss of earnings, and lack of informed consent, Sunil Mehra M.D. ("Dr. Mehra" or "defendant") moved for an order (1) dismissing plaintiffs' claims pursuant to CPLR § 3211(a)(5). granting dismissal of all of plaintiffs' claims against defendant, pertaining to his May 21, 2015 office visit on the grounds that the statute of limitations expired as to all such claims; (2) pursuant to CPLR § 3212, granting summary judgment in favor of defendant, thereby dismissing plaintiffs' complaint with respect to defendant in its entirety, on the grounds that no triable issue of fact exists; and (3) amending the caption, removing Sunil Mehra, M.D., as a defendant, along with such other and further relief that this Court deems just, proper and equitable. Plaintiffs opposed the motion.

Facts

On May 21, 2015, Mohammed Bablu ("Mr. Bablu" or "plaintiff') visited Wyckoff Heights Medical Center and was seen by pulmonary' attending. Dr. Mehra. At the visit. Dr. Mehra performed a pulmonary' breathing (function) test ("PFT"). The PFT report interpreted a normal spirometry. Dr. Mehra noted, "54 year old Bangladesh male complains of blood in urine (painful) 6 months ago - saw Dr. Hakimian (GU) - CT chest and abdomen - mass lung + renal stone. No cough, fever, chills and anorexia or weight loss." Defendant testified he also reviewed Mr. Bablu's March 10, 2015 CT urogram results, which co-defendant, Gennadiy Kvetny, M.D. ("Dr. Kvetny") faxed over that afternoon.

Mr. Bablu and his wife, co-plaintiff Parveen Sultana ("Ms. Sultana"), testified that they brought a CD to the May 21, 2015 visit. The CD contained a CT scan of Mr. Bablu's right chest that was performed at Richmond Hill Radiology. Mr. Bablu contended that Dr. Mehra reviewed the CT scan during the visit. Mr. Bablu said he also informed Dr. Mehra of his childhood tree fall incident when defendant inquired about the old scar on his lung.

In contradiction, Dr. Mehra testified that the plaintiffs did not present a CT scan or CD for his review. He further indicated that if plaintiffs brought the CD for his review, he would have written "CT reviewed by me" in his notes. Dr. Mehra contended that plaintiff reported having a lung mass. He also denied that plaintiff told him about a childhood incident, since again it was not in his notes. Notwithstanding, Dr. Mehra argued that the information would be irrelevant, as Mr. Bablu's test findings were inconsistent with a person who had a history of a fall.

Dr. Mehra's plan was to "repeat CT chest/PET scan in six months. Do PPD with 5 TU. Discuss with patient and wife." Defendant told Mr. Bablu to follow-up in six months, with his medical reports. Mr. Bablu did not appear for the follow-up appointment. Dr. Mehra's staff called Mr. Bablu and reminded him to complete the CT and PET scans.

More than two years later, on December 21, 2017, Mr. Bablu presented to Dr. Mehra's office and another PFT was performed, which Dr. Mehra noted to be within normal limits. Dr. Mehra insisted that December 21, 2017 was the first time he saw' a mass or nodule in Mr. Bablu's right upper lung. He learned of the lung mass because Richmond Hill Radiology faxed two CAT scan reports of Mr. Bablu's chest; one from May 11, 2015 and the other from December 5, 2017. The CAT scans showed that the lung mass shrunk from 2.7 centimeters in May 2015 to 2.3 centimeters in December 2017. Dr. Mehra testified that the right upper nodule was not calcified, which was concerning for him "because [tuberculosis] is most common in the right upper lobe." Dr. Mehra instructed Mr. Bablu to get a CT chest and PET scan and advised Mr. Bablu to be compliant.

Mr. Bablu did not appear for the scheduled follow-up at Dr. Mehra's office, on February 6, 2018. Dr. Mehra tried to call Mr. Bablu without success. Dr. Mehra's staff did not contact Ms. Sultana because she was not a listed contact person. Mr. Bablu was later diagnosed with Stage IV lung cancer in May 2019.

Analysis

Statute of Limitations

Medical malpractice actions must be commenced within two years and six months of the act, omission, or failure complained of. or the last treatment where same is continuous treatment for the same illness, injury or condition that gave rise to the said act, omission, or failure. Hall v. Bolognese, 210 A.D.3d 958. 178 N.Y.S.3d 564 (2d Dept. 2022). "A defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired." Osborn v DeChiara, 165 A.D.3d 1270, 1270, 87 N.Y.S.3d 97 (2d Dept. 2018). "The burden then shifts to the plaintiff to present evidence raising a question of fact as to whether the action falls within an exception to the statute of limitations or whether the continuous treatment doctrine applies to toll the statute of limitations." Id.

An exception to the statute of limitations is Lavem's Law codified as CPLR § 214-a. Pursuant to Lavem's Law, where the action is based upon the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within two years and six months of the later of either (i) when the person knows or reasonably should have known of such alleged negligent act or omission and know s or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than seven years from such alleged negligent act or omission, or (ii) the date of the last treatment w here there is continuous treatment for such injury, illness, or condition. (Emphasis added). Moreover, Lavem's Law, which took effect on January 31, 2018, applies the 2.5-year tolling period retroactively to causes of action accruing on or after July 31, 2015. Ford v. Lee, 203 A.D.3d 456, 164 N.Y.S.3d 592 (1^stDept. 2022).

"The continuous treatment doctrine tolls the statute of limitations 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." Cohen v. Gold. 165 A.D.3d 879, 86 N.Y.S.3d 538 (2d Dept 2018). Under this doctrine, three conditions must be met: "(1) the patient continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period; (2) the course of treatment was for the same conditions or complaints underlying the plaintiffs medical malpractice claim; and (3) the treatment [was] continuous." Proano v. Gutman, 211 A.D.3d 978, 180 N.Y.S.3d 279 (2d Dept. 2022). Continuity of treatment may be exhibited by "further treatment... explicitly established by both the physician and the patient, as demonstrated by a regularly scheduled appointment for the near future." Hillary v. Gerstein, 178 A.D.3d 674 114 N.Y.S.3d 440 (2d Dept. 2019). "Essential to the application of the doctrine is that there has been a course of treatment established with respect to the relevant condition, so [] a mere continuing relation between physician and patient or the continuing nature of a diagnosis is insufficient to invoke the doctrine" Cohen v. Gold, 165 A.D.3d 879. 86 N.Y.S.3d 538 (2d Dept. 2018). "Treatment does not necessarily terminate upon the last visit, if further care or monitoring of the condition is explicitly anticipated by both physician and patient, as manifested by a regularly scheduled appointment for the near future" Id. Furthermore, continuous treatment tolling of the statute of limitations will not include the lack of an actual course of treatment for the condition or complaint, or for symptoms related to same. Weinstein v. Gerwirtz, 208 A.D.3d 717, 173 N.Y.S.3d 316 (2d Dept. 2022).

Here, Dr. Mehra established his prima facie entitlement to judgment as a matter of law dismissing, as time barred, plaintiffs' claims concerning Mr. Bablu's May 21, 2015 treatment. Defendant demonstrated that more than two years and six months has elapsed since the proffered treatment date and May 26, 2020; the commencement date of this action. Defendant postulated that Mr. Bablu did not seek continuous treatment between May 2015 and December 2017; as there were no affirmative and ongoing conduct such as therapy, surgery, or medications prescribed to Mr. Bablu during that time period. Dr. Mehra further argued that even if plaintiffs are able to establish a continuous treatment of care from May 21, 2015 and November 22, 2015, Mr. Bablu's missed follow-up appointment, plaintiffs' action would still be untimely because it would only extend the statute of limitations to May 15, 2018. Dr. Mehra also argued that since the May 2015 office visit predates the earliest date to which the retroactive discovery toll applies, plaintiffs are not entitled to the tolling exception of Lavem's Law.

In opposition, plaintiffs raised a triable issue of fact as to whether the...