SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 25. Defendants.

Transcription

1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 25 Present: HON. WilLIAM R. lamarca Justice MARIA FELDMAN, as Executrix of the Estate FELICE FELDMAN, Plaintiff, Motion Sequence #006, #007, #008 Submitted March 15, against- INDEX NO: 20623/96 SOUTH NASSAU COMMUNITIES HOSPITAL, AHMED H. KHAPRA, M. D., METPATH laboratory, BADER MARIA PEDEMONTE-COIRA, M.D., ARTHUR V. BROWN, M.D., P., CHARLES L. SCHOCKET, M. D., ALVIN J. SlOVIN, M.D., and JOHN DOE, M.D., Defendants. The following papers were read on these motions: Notice of Motion (# 006 SOUTH NASSAU and KHAPRA) and Exhibit Appendix Notice of Motion (# 007 SCHOCKET)... Notice of Cross-Motion (# 008 METPATH and COIRA)... Plaintiff' s Affirmation in Opposition... in Reply... SOUTH NASSAU and KHAPRA Affirmation SCHOCKET Reply Affirmation Plaintiff' s Sur-Reply Reauested Relief The motion (# 006) by Defendants, SOUTH NASSAU COMMUNITIES HOSPITAL (hereinafter referred to as the " HOSPITAL") and AHMED H. KHAPRA, M. D., (hereinafter referred to as "Dr. KHAPRA"), for an order of this Court, pursuant to CPLR , granting

2 summary judgment in favor of Defendants, HOSPITAL and Dr. KHAPRA, and dismissing the Plaintiffs complaint in its entirety is DENIED. The motion (# 007) by Defendant, CHARLES L. SCHOCKET, M. D. (hereinafter referred to as "Dr. SCHOCKET"), for an order of this Court, pursuant to CPLR granting summary judgment dismissing Plaintiffs claims as against Defendant, Dr. SCHOCKET, is likewise DENIED. The motion (# 008) by Defendants, METPATH LABORATORY (hereinafter referred to as " METPATH") and BADER MARIA PEDEMONTE-COIRA, M. D., (hereinafter referred to as " Dr. COIRA"), for an order of this Court, pursuant to CPLR 93212, granting summary judgment dismissing Plaintiff' s complaint against the Defendants, METPATH and Dr. COIRA, along with the cross-claims of the defendants herein, on the basis that there is no causal relationship between the alleged acts and/or omissions of the moving defendants, is also and the damages alleged by the Plaintiff DENIED. Background On or about December 6, 1993, until on or about May 25, 1995, the now deceased FELICE FELDMAN (hereinafter referred to as " Ms. FELDMAN"), was seen by Defendant, ARTHUR BROWN, M. D. (hereinafter referred to as " Dr. BROWN" ) for a variety of complaints, including various skin complaints. On Saturday, January 7, 1995, Ms. FELDMAN woke up and noticed that the front portion of her neck was swollen. As a result on Monday, January 9, 1995, Ms. FELDMAN presented to Dr. BROWN' office. Thereafter, on or about January 17, 1995, at the recommendation of Dr. BROWN, Ms. FELDMAN presented to Horizon Medical Imaging, P.C., for a thyroid scan. Also at the

3 request of Dr. BROWN, on January 27, 1995, Ms. FELDMAN presented to Dr. Alan I. Blum, a pulmonary specialist, for an evaluation of the swellng on the inferior aspect of the neck and the superior aspect of the chest in the pretracheal space. On the same day, Ms. FELDMAN was subsequently referred to and seen by defendant, ALVIN J. SLOVIN, M. (hereinafter referred to as " Dr. SLOVIN" ), a thoracic surgeon. Dr. SLOVIN recommended that the patient, Ms. FELDMAN, undergo a biopsy of a mediastinal mass that was discovered as a result of the examinations and imaging conducted by the various physicians and medical providers. Thereafter, on January 30, 1995, Ms. FELDMAN was admitted to the HOSPITAL where she underwent a mediastinoscopy and biopsy. The surgery was performed by Dr. SLOVIN. The same day, January 30, 1995, Dr. SLOVIN sent the patient's, Ms. FELDMAN' s, tissue specimen consisting of mediastinal mass tissue for an intraoperative consultation to Dr. KHAPRA, a board certified anatomic pathologist and Director of the HOSPITAL' s Department of Pathology. Dr. KHAPRA examined the slides of the frozen specimen under a microscope, observed a tumor in the specimen and noted the existence of abnormal tissue. Dr. KHAPRA thereafter advised Dr. SLOVIN, the operating surgeon, of the presence of a tumor and the need for further specialized pathological analysis. As a result, he arranged for the specimens to be forwarded to an outside facilty, namely METPA TH. METPA TH' s employee, Dr. COIRA, a hematopathologist, received and of METPA TH. reviewed Ms. FELDMAN' s pathological studies on behalf In the mean time, Ms. FELDMAN, was discharged from the HOSPITAL on January 31, 1995 and was instructed, at that time, to follow up with her private physicians.

4 After reviewing Ms. FELDMAN' s biopsy slides, Dr. COIRA observed a cellular proliferation with large cells which indicated a differential diagnosis of Hodgkins Disease. Dr. COIRA thereafter indicated in her immunocytochemistry consultation report, that her interpretation of the excised tissue sample " indicate(d) the presence of Reed- Sternberg cell associated antigens, in these cells, and together with the morphologic findings are consistent with Hodgkin s disease. prepared by Dr. Coira. See Immunocytochemistry Consultation Report As testified to at her examination before trial, Dr. COIRA also took steps to rule out that the Plaintiff was suffering from non-hodgkins lymphoma. At her EST, Dr. COIRA testified as follows: Doctor, did you take any steps to rule out that the patient was suffering from non-hodgkins lymphoma? Yes. What steps did you take? I did, I stained the cells with the stains to Band T associated antigens. What was your finding? That there were small cells in the biopsy that were positive, some of them for B and some of them for T. And in order for you to have a non-hodgkins lymphoma the cells have to be positive for either B or T cell antigens. Either B or T? Either or, not both, like here. So that' s excluding a non- Hodgkins lymphoma. See, Dr. Coira EBT, pages 87- On February 13, 1995, Dr. KHAPRA received the results of the specialized immunocytochemistry studies specifically undertaken at METPATH to provide a definitive diagnosis as to the specific type of lymphoma Ms. FELDMAN suffered from. Dr. COIRA' report noted, among other things, that these results indicated the presence of Reed- Sternberg cells associated with antigens which togetherwith the morphologic findings were

5 consistent with Hodgkin s disease. After receiving the report and findings from METPATH on or about February 13, 1995, Dr. KHAPRA prepared a pathology report. Dr. KHAPRA's report indicated that the Plaintiff had malignant lymphoma Hodgkin s disease and that the immunocytochemistries which were performed by METPA TH suggested that tumor cells contained Reed-Sternberg cells. Also referred by Dr. Blum, on or about February 2, 1995, Ms. FELDMAN presented to Dr. SCHOCKET, an oncologist, for evaluation and treatment. Upon the completion of a physical examination, Dr. SCHOCKET's impression was that Ms. FELDMAN had Hodgkin s disease, nodular sclerosis, superior vena cava syndrome and a probable pleural effusion. Dr. SCHOCKET noted that the staging of this tumor was probably a IV B and that the prognosis was poor. Dr. SCHOCKET recommended chemotherapy for this condition. On February 8, 1995, Ms. Feldman was again seen by Dr. SCHOCKET and was given chemotherapy. Dr. SCHOCKET saw Ms. FELDMAN from February 3, 1995 until June 17, 1995 and administered chemotherapy on multiple occasions. After the chemotherapy was administered, Dr. SCHOCKET was of the opinion that the patient, Ms. FELDMAN, was improving and noted that her itching had subsided and had disappeared somewhere after the first or second course of chemotherapy. In June 1995, Ms. FELDMAN was again seen by Dr. SCHOCKET who noted that her complaints of itching had come back and, on June 17, 1995, the patient was referred to Memorial Sioan- Kettering Cancer Center for evaluation and treatment. Ms. FELDMAN was never seen again by Dr. SCHOCKET.

6 Ms. FELDMAN was seen and treated at Memorial Hospital for Cancer and Alled Disease and was treated with different types of chemotherapy as well as a blood stem cell transplant. Notably, she was admitted to that facilty on July 17, 1996 with a diagnosis of relapsed diffuse large cell lymphoma, status post autologous peripheral blood stem cell transplantation. She was subsequently discharged and underwent various treatment modaliies, including whole body radiation. Ms. FELDMAN passed away on May 24, The Plaintiff, MARLA FELDMAN, as Executrix of the Estate of FELICE FELDMAN the timely commenced the within medical malpractice action against Defendants, inter alia HOSPITAL, Dr. KHAPRA, Dr. SCHOCKET, METPATH and Dr. COIRA, on July 23, Issue was joined as to the HOSPITAL and Dr. KHAPRA on August 23, 1996 and SCHOCKET on September 13, 1996, respectively. Issue was joined on behalf of Dr. August 22, It is unclear as to when Defendants, METPATH and Dr. COIRAjoined issue in the instant medical malpractice action. The Law must prove that the To establish liabilty in a medical malpractice action, a plaintiff defendant deviated from good and accepted standards of departure was the proximate cause of the injury. medical practice, and that the See, Hanley v Sf. Charles Hosp. and Rehabiltation Center 307 AD2d 274, 763 NYS2d 322 (2 Dept. 2003); see also, Prestia v Mathur, 293 AD2d 729, 742 NYS2d 80 (2 Dept. 2002); Prete v Rafla-Demetrious, 224 AD2d 674, 638 NYS2d 701 (2 Dept. 1996). A party moving for summary judgment must law, offering suffcient make a prima facie showing of entilement to judgment as a matter of evidence to eliminate any material issues of fact. See, Winegrad v New York Univ. Med. Center, 64 NY2d 851, 487 NYS2d 316, 476 NE2d 642 (C. A. 1985) ; Zuckerman v City

7 New York 49 NY2d 557, 427 NYS2d 595, 404 NE2d 718 (C.A. 1980). When the Defendant moves for summary judgment, the supporting papers must set forth everything that the Defendant did during the treatment of the patient and indicate that the treatment of the patient was not the proximate cause of the patient' s complaints or injuries. See, Kleinert v Begum, 144 AD2d 645, 535 NYS2d 43 (2 Dept. 1988). Thus, in a medical malpractice action, a Defendant's motion for summary judgment dismissing the complaint as against the Defendant is properly granted where there is testimony by the physician or other supporting expert evidence that the physician did not deviate from good and accepted medical practices. See, Wind v Cacho, 111 AD2d 808, 490 NYS2d 345 (2 Dept. 1985). Bare conclusory allegations by the Defendants, that they did not deviate from good and accepted medical practices, with no factual relationship to the alleged injury however, will not establish that the cause of action has no merit so as to entitle the Defendants to summary judgment. See, Winegrad v New York Univ. Medical Ctr., supra. In this case, the Plaintiff has alleged that the HOSPITAL, despite pathologic evidence to the contrary, failed to diagnose Ms. FELDMAN' s condition as non-hodgkin s lymphoma and failed to provide Ms. FELDMAN with skiled and experienced pathological analysis during her two day admission from January 30, 1995 to January 31, As against Dr. KHAPRA, Plaintiff alleges that Dr. KHAPRA, despite pathologic evidence that the Plaintiff suffered from non-hodgkin s lymphoma, misdiagnosed Plaintiffs condition as Hodgkin lymphoma, failed to properly and completely review pathology materials under a microscope in the face of questionable findings and failed to appreciate the pathological significance of large mononuclear and binuclear cells positive of Reed-Sternberg associated antigens.

8 In support of their motion for summary judgment (# 006), Defendants, HOSPITAL and Dr. KHAPRA, submit the pleadings, the depositions of all parties, Dr. KHAPRA' s own sworn affidavit, as well as the affidavit of expert James A. Strauchen, M., a board certified pathologist who specializes in the differentiation of lymphoma and who is an attending pathologist at Mt. Sinai Medical Center. In his affidavit, Dr. KHAPRA unequivocally states, ".I respectfully submit that my analysis of tissue samples excised from Felice Feldman were undertaken in accord with good and accepted standards of medical and pathological practice and that there is no causal connection between my analysis of said tissue samples and any injuries alleged to have been sustained by Felice Feldman. See, Defendants ' Notice of Motion, Exhibit Paragraph 6. In addition, Dr. Strauchen, in his expert affidavit, states, in pertinent part, as follows: Based on my review of the medical records and deposition testimony, it is my opinion, with a reasonable degree of medical certainty, that the care and treatment rendered to the Plaintiff by (the Hospital), its agents and employees, namely (Dr. Khapra), in diagnosing Felice Feldman condition, was within the realm of good and accepted medical and pathological practice. (Dr. Khapra)'s diagnosis of Hodgkin s Disease was reasonable and within good and accepted standards of medical and pathological practice. (Dr. Khapra)'s reading of the frozen sections, as indicated in the hospital chart, was correct, acceptable and reasonable. The tissue was correctly identified as a neoplasm (tumor) with findings consistent with lymphoid lesions. The standard of pathological care, under the circumstances, is not to make a definitive diagnosis at the time of surgery but to preserve the tissue for appropriate studies. It is my opinion with a reasonable degree of medical certainty that neither (the Hospital) nor (Dr. Khapra) deviated or departed from good and accepted medical and pathological practice. The pathological specimens had many features of Hodgkin s Disease. There were, additionally, Reed-Sternberg-like cells. Some of those

9 cells had the appearance of lacuna cells, which are found in nodular sclerosing Hodgkin s Disease. The specimens also demonstrated features of non- Hodgkin s lymphoma with sheets of Reed-Sternberglike cells, which are seen in non-hodgkin s lymphoma but can also be seen in the syncytial variant of nodular sclerosing Hodgkin s Disease Under the circumstances, it is my opinion within a reasonable degree of medical certainty that (Dr. Khapra) correctly and in accord with good and accepted practice referred Felice Feldman s pathological studies to Metpath Laboratory, given the complexity of the pathological results and the immunocytochemistry studies required, that were not available in the community hospital setting. Additionally, it was acceptable and reasonable to incorporate (Dr. Coira)'s findings, after the specialized immunocytochemistry studies were undertaken at (Metpath) into the pathology report of February 13, It is my opinion, within a reasonable degree of medical certainty, that there were no deviations or departures from good and accepted standards of medical practice and pathological by the hospital or (Dr. Khapra). Finally, it is my opinion, with a reasonable degree of medical certainty, that the treatment and care rendered by (the Hospital) and (Dr. Khapra) did not proximately cause the injury to Ms. Feldman. (Dr. Khapra)'s diagnosis was reasonable and acceptable. There is no correlation between (Dr. Khapra)'s pathology analysis and Felice Feldman alleged injuries. Similarly, Defendant, Dr. SCHOCKET, in support of his motion for summary judgment (# 007), submits the pleadings, depositions of all parties, and the affirmation of Dr. Ivan Rothman, a physician with board certification in internal medicine and hematology and oncology. As against Dr. SCHOCKET, Plaintiff alleges medical malpractice and lack of informed consent; specifically that Dr. SCHOCKET was negligent in diagnosing the Ms. FELDMAN' condition as Hodgkin s lymphoma, Stage II- B, and then treating herforthis condition despite pathologic evidence that she had non- Hodgkin s lymphoma, failing to personally review the pathology materials under a microscope, failng to diagnose Ms. FELDMAN' s condition as

10 non-hodgkin s lymphoma and failng to consult with and refer Ms. FELDMAN to other physicians for evaluations and failing to provide informed consent. Dr. Rothman, in his affirmation states, in pertinent part, as follows: Based upon my review of the materials related to this file, as well as my own training, knowledge and experience in the field of hematology and oncology, it is my opinion within a reasonable degree of medical certainty that any alleged delay by Dr. Schocket in the diagnosis and treatment of non-hodgkins lymphoma in this patient did not adversely affect the patient, Felice Feldman, and did not constitute the proximate cause of her claimed injuries. 10. It is my opinion, within a reasonable degree of medical certainty, that it was appropriate for Dr. Schocket to rely on the pathology continuing chemotherapy and as an interpretation of the slides in oncologist rather than a pathologist, had no obligation to independently review the slides. From my review of the records, as well as the deposition testimony of all parties and non-parties it is my opinion within a reasonable degree of medical certainty that Felice Feldman was not curable no matter what type of lymphoma she had when she was first seen by Dr. opinion regarding the patient's lack of Schocket. The basis of my curability is the large size of the patient's mass as evidenced by the CAT scan performed in January of 1995, the fact that she had pruritus for at least 18 to 24 months prior to being seen by Dr. Schocket, which manifestation of the lymphoma, in retrospect was in all probabilty a and the fact that the patient's lymphoma was non responsive to all treatment for both Hodgkin s and non- Hodgkin s lymphoma, which included chemotherapy, radiation and stem cell transplantation. 11. It was also appropriate for Dr. Schocket to administer the kind of chemotherapy he did, especially in view of the fact that the pathology report and patient's clinical picture were consistent with a diagnosis of Hodgkin s lymphoma. 12. In conclusion, it is my opinion, within a reasonable degree of medical certainty, that no act or omission by Dr. Schocket proximately caused any injury to this patient and any alleged delay in diagnosis and treatment as to Dr. Schocket did not proximately cause any injury to this patient.

11 See, Defendant's Notice of Motion, Exhibit The affidavits submitted by the Defendants, HOSPITAL, Dr. KHAPRA and Dr. SCHOCKET, in support of their motions for summary judgment establish a prima facie case that the treatment of the patient, FELICE FELDMAN, was not negligent and that they are entitled to judgment as a matter of law. It is well settled on a motion for summary judgment that, after movant has made a prima facie showing that they are entitled to judgment as a matter of law, the other party must establish the existence of material facts of sufficient import to create a triable issue of fact. See, Hellnger v Law Capital, Inc. 124 AD2d NYS2d 50 (2 Dept. 1986); Shaw v. Time-Life Records, 38 NY2d 201, 379 NYS2d 390, 341 NE2d 817 (C. A. 1975). In opposition to the motions for summary judgment by the HOSPITAL, Dr. KHAPRA and Dr. SCHOCKET, Plaintiff submits the affirmation of a physician, Board Certified in Internal Medicine, Medical Oncology and Hematology. Plaintiffs expert states, in pertinent part: The slides prepared from the biopsy taken from Ms. Feldman s tumor at (the Hospital) clearly indicated the presence of non- Hodgkin lymphoma. In particular, Ms. Feldman was suffering from Primary mediastinal large B cell lymphoma (PMLBL), which is a form of non-hodgkin lymphoma. PMLBL is a distinct subtype of diffuse large B cell lymphoma (DLBCL) that accounts for 6% of all non-hodgkin lymphoma cases. The pathological and clinical characteristics of PMLBL have been very well documented. PLLBL is characterized by a morphologic and immunophenotypic picture comprise of a diffuse proliferation of medium to large cells with clear cytoplasm and the presence of sclerosis that causes a compartmentalization pattern. All of the foregoing characteristics are revealed in the slides prepared from the frozen section taken from Felice Feldman s tumor.

12 Based upon Ms. Feldman s medical history, symptoms at presentation and analysis of the slides, it is my opinion with a reasonable degree of medical certainty, that Ms. Feldman should have been diagnosed by Drs. Khapra, Coira and Schocket as suffering from PMLBL. It is also my opinion, with a reasonable degree of medical certainty, that had Ms. Feldman been correctly diagnosed and treated for PMLBL, there would have been a greater than 50% chance of her achieving a clinical remission. See, Plaintiff's Affirmation in Opposition to Summary Judgment, Exhibit In a medical malpractice action, a Defendant' s motion for summary judgment dismissing the Complaint as against the Defendant is properly granted where the Plaintiffs affidavit of merit by a medical expert fails to state that the Defendant's deviation or departure form accepted practice was the proximate cause of Plaintiffs injuries. See, Amsler v Verrili 119 AD2d 786; 501 NYS2d 411 (2 Dept. 1986). In this case, however, it is readily apparent that th affidavit of the Plaintiff's medical expert sufficiently and competently establishes the existence of issues of fact, inter alia as to whether the Defendants were negligent in failing to diagnose the Plaintiff with non-hodgkin s lymphoma. Summary judgment may not be awarded in a medical malpractice action where the parties adduce conflicting opinions of medical experts. See Barbuto v Winthrop Univ. Hosp. 305 AD2d 623, 760 NYS2d 199 (2 Dept. 2003); Fotinas v Westchester County Med. Ctr. 300 AD2d 437, 752 NYS2d 90 (2 Dept. 2002). When experts offer conflicting opinions, a credibilty question is presented requiring a jury s resolution. supra; Halkias v Otolaryngology-Facial Plastic Surgery Assoc., See Barbuto v Winthrop Univ. Hosp. 282 AD2d 650, 724 NYS2d 432 (2 Dept. 2001). It is well setted that in support of a motion for summary judgment, the movant must establish an entitlement to judgment as a matter of law by producing evidence

13 demonstrating the absence of any genuine issues of fact. See Alvarez v Prospect Hosp. 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 (C. A. 1986); Shay v Polambaro, 229 AD2d NYS2d 888 (3rd Dept. 1996); Douglass v Gibson 218 AD2d 856, 630 NYS2d 401 Dept. 1995). The evidence produced by the movant must be viewed in the light most favorable to the non-movant, affording the non-movant every favorable inference. Horth v Masur, 243 AD2d 1041, 663 NYS2d 703 (3 Dept. 1997). To the extent that the parties' and their experts have reached opposing conclusions with respect to, among other things, proximate causality, the overall propriety of Defendants treatment, and the conflicting claims as to what was said and done during the Plaintiffs contact with the Defendants, those disputed contentions "present() a credibilty battle between the parties' experts, " raising "issues *** properly left to a jury for *** resolution. See, Barbuto v Winthrop University Hosp., supra; see also, Halkias v Otolaryngoloy-Facial Plastic Surgery Assocs., supra; cf., Weissman v Wider 235 AD2d 474, 652 NYS2d 1006 See Dept. 1997). With these guidelines in mind, and giving the non-movant, Plaintiff, the benefi of every favorable inference (See, Robinson v Strong Memorial Hosp. 98 AD2d 976, 470 NYS2d 239 (4 Dept. 1983); see also, Blake- Veeder Realty, Inc. v Crayford, 11 a AD2d 1007, 488 NYS2d 295 (3 rd Dept. 1985)), it is this Court' s conclusion that there remain material issues of fact, as to whether the Defendants were negligent in failng to diagnose the Plaintiff with non- Hodgkin s lymphoma, thus precluding a grant of summary judgment in Defendants', HOSPITAL, Dr. KHAPRA and Dr. SCHOCKET's favor. As to Motion #008, Defendants, METPA TH and Dr. COIRA, relying exclusively on the pleadings, proceedings and the affirmation of Dr. Rothman, Dr. SCHOCKET's expert, also

14 move for summary judgment seeking dismissal of the Plaintiffs complaint along with the cross-claims of the Defendants' on the basis that there is no causal relationship between the alleged acts and/or omissions of the moving Defendants and the damages alleged by the Plaintiff. It should be noted at the outset that CPLR 3212(b) states as follows (b) Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. See, McKinneys CPLR 3212(b). Similarly, CPLR 2214 states in pertinent part: (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based the relief demanded and the grounds therefor. (c) Furnishing papers to the court. Each party shall furnish to the court all papers served by him. The moving party shall furnish at the hearing all other papers not already in the possession of the court necessary to the consideration of the questions involved. Where such papers are in the possession of an adverse party, they shall be produced by him at the hearing on notice served with the motion papers. Only papers served in accordance with the provisions of this rule shall be read in support of, or in oppositon to, the motion unless the court for good cause shall otherwise direct. See, McKinneys CPLR 2214(a), eg. Defendants, METPA TH and Dr. COIRA's, motion for summary judgment cannot be considered at this juncture because the moving papers fail to annex, most notably, Defendants' Verified Answerto the Plaintiffs Complaint in which the Defendants presumably

15 ,, asserted cross-claims for which the Defendants now seek summary judgment. See, Darcy v Olympic York Rank Co., 2002 WL (N.Y. Sup. ), 2002, NY Slip Op (U); McMahon v Wolverine Worldwide, Inc., 649 NYS2d 110, 233 NYS2d 587 (3 Dept. 1996); Lawlor v County of Nassau, 166 AD2d 692, 561 NYS2d 644 (2 nd Dept. 1990). As such, Defendants' motion for summary judgment is DENIED. All further requested relief not specifically granted is denied. This constitutes the decision and order of the court. Dated: June 3, 2005 WIL I M R. LaMARCA, J. ENTERED JUN 0 9 Z005 SlU COUNTY 88 Clil' OfF

16 " '" TO: Bruce D. Katz, Esq. Attorney for Plaintiff 225 Broadway, 37 Floor New York, NY Bartlett, McDonough, Bastone & Monaghan, LLP Attorneys for Defendants South Nassau Communities Hospital and Ahmed H. Khapra, MD 300 Old Country Road Mineola, NY Hiscock & Barclay, Esqs. Attorneys for Defendants Metpath Laboratory, Bader Maria Pedemonte-Coira, MD 110 M&T Center Three Fountain Plaza Buffalo, NY Lewis, Johs, Avallone & Kaufman, Esqs. Attorneys for Defendant Charles L. Schocket, MD 425 Broad Hollow Road Melvile, NY Poisson & Hackett, Esqs. Attorneys for Defendant Arthur Brown, MD 1225 Franklin Avenue Garden City, NY feldman-southnassaucommunltieshosp, etal,#06,#07,#08/sumjudg