Kljyan v. Kaminetsky

*1 In motion sequence no. 004, defendants David T. Liu, M.D., University Nephrology Associates, LLP, University Urology Associations, LLP, NYU Hospitals Center s/h/a “NYU Langone Medical Center,” (“NYU”) and NYU Health System (collectively referred to as “the NYU defendants”), and in motion sequence no. 005, defendant Amr A. Nayel, M.D. (Dr. Nayel) and Amr R. Nayel, M.D., P.C., d/b/a Astoria Health Care Associates, LLP (collectively referred to as “the Nayel defendants”) move for summary judgment dismissing the complaint as to the respective defendants.¹ Plaintiffs oppose both motions, except for that part of the NYU defendants’ motion seeking to dismiss the claims against defendants David T. Liu, M.D., University Nephrology Associates, LLP, and University Urology Associations, LLP, and for lack of informed consent, and these aspects of the NYU defendants’ motion for summary judgment are granted without opposition.*2

BackgroundIn this medical malpractice action, plaintiffs allege that the NYU and the Nayel defendants departed from accepted medical practice in connection with their diagnosis, care and treatment of plaintiff Jakop Kljyan’s colon cancer. As to the NYU defendants, plaintiffs’ claims involve an abnormal pelvic CT scan ordered by defendant Jed C. Kaminetsky, M.D. (Dr. Kaminetsky) in connection with a pre-procedure work up for kidney stones. The CT scan was performed on November 15, 2013, by a board certified radiologist, non-party Dr. Hersh Chandarana, the assigned physician in NYU’s Radiological Department. Impressions in Dr. Chandarana’s two-page report are radiological findings of kidney stones and of “a soft tissue mass suspicious for a colonic neoplasm.²” The report recommended further evaluation with a colonoscopy. Of significance to the issues herein, the finding of the soft tissue mass and the recommendation of a colonoscopy were stated on the second page of the report.³Dr. Chandarana testified at his deposition that he called Dr. Kaminetsky’s office at approximately 7 p.m. on Friday, November 15, 2013, and left a message for Dr. Kaminetsky to call him, and that evening he faxed the report to Dr. Kaminetsky’s office. Dr. Chandarana further testified that because he was unable to contact Dr. Kaminetsky by telephone, he submitted a