Buch v. Tenner

204 A.D.3d 635

166 N.Y.S.3d 243

Irene BUCH, etc., respondent,

v.Scott TENNER, etc., appellant, et al., defendants.

2019–13374

Index No. 14636/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 21, 2022

April 6, 2022

Garbarini & Scher, P.C., New York, NY (William D. Buckley and Thomas M. Cooper of counsel), for appellant.

Mark M. Basichas & Associates, P.C., New York, NY (Aleksey Feygin of counsel), for respondent.

ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the defendant Scott Tenner appeals from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated August 21, 2019. The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In February 2011, the plaintiff's decedent met with the defendant physician Scott Tenner after a CAT scan revealed a 10–centimeter mass in the decedent's abdomen. Based on this finding, Tenner performed an endoscopy of the decedent's stomach, and observed "a submucosal mass ill defined, with scattered ulceration" in the body and cardia of the stomach. During the endoscopy, Tenner also took several biopsies, and pathology studies of the biopsied specimens established the presence of "infiltrating poorly differentiated adenocarcinoma, signet ring cell type, in gastric mucosa and granulation tissue." Following this diagnosis, the decedent underwent a chemotherapy regimen as well as surgery to remove the mass. In June 2011, the mass that was removed from the decedent's stomach was sent for a pathology study, and in July 2011 it was determined that the mass was a gastrointestinal stromal tumor (hereinafter GIST), and not adenocarcinoma as was originally expected. This finding was significant because a GIST is another distinct form of gastric cancer which requires a specific treatment plan that is different from the treatment plan for adenocarcinoma.

The pathology results from the decedent's June 2011 surgery led to some confusion over the decedent's true condition. At that point in time, it was believed that Tenner and his staff had inadvertently switched the decedent's February 2011 biopsy samples with those of another patient, which resulted in the decedent's misdiagnosis for adenocarcinoma, rather than a GIST. Thus, in August 2011, Tenner collected a DNA sample from the decedent. This was the last contact that Tenner had with the decedent. A comparison of the decedent's DNA to DNA from the February 2011 biopsy showed that the two samples were a match, and effectively confirmed that Tenner's February 2011 adenocarcinoma diagnosis was correct. Significantly, however, during the decedent's subsequent treatment with other physicians, he received treatment for a GIST only. In March 2012, a repeat endoscopy revealed that the decedent had adenocarcinoma, the same type of cancer which was originally diagnosed by Tenner in February 2011. While the decedent agreed to an additional chemotherapy regimen and a second surgical procedure, his condition did not improve, and the decedent ultimately died in November 2012.

In August 2013, the plaintiff, as administrator of the decedent's estate, commenced this action against, among others, Tenner, to recover damages for, among other things, medical malpractice and wrongful death. Following discovery, Tenner moved for summary judgment dismissing the complaint insofar as asserted against him, arguing that since he correctly performed the endoscopy and biopsies in February 2011, correctly diagnosed the decedent's adenocarcinoma in February 2011, and properly resolved the purported error in the handling of the biopsy samples in August 2011, his conduct neither deviated from the standard of care nor proximately caused the decedent's injuries and death. In opposition, the...