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Korcz v. Merritt11/30/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Defendant Andrew J. Merritt, M.D. brings this motion for summary judgment pursuant to CPLR § 3212 seeking an order dismissing this action for medical malpractice upon the grounds that defendant Merritt's care and treatment of plaintiff Carol Korcz was in keeping with generally accepted standards of care as a matter of law.
Defendant Merritt also moves pursuant to CPLR § 3212 and CPLR § 214-a for an order dismissing plaintiffs' complaint upon the grounds that plaintiffs' complaint is barred by the statute of limitations. Defendant Merritt has raised the statute of limitations as an affirmative defense to plaintiffs' action. The parties have stipulated to the discontinuance of the action against defendant Eva F. Briggs, M.D.
Defendant Andrew J. Merritt, M.D. is a board certified family medicine physician licensed to practice medicine in the State of New York. On June 25, 1990, plaintiff Carol Korcz came under defendant Merritt's care as a patient in defendant's family practice. Between June 25, 1990 and March 30, 2000, plaintiff was seen by defendant Merritt or members of his staff that he supervised for a variety of health care issues. On March 30, 2000, during a medical consultation, defendant's physician assistant, Mark Novak, palpated and identified a mass in plaintiff's neck. On April 4, 2000, plaintiff was referred for a CT scan of the head and cervical spine. The CT scan was performed and a report issued on April 13, 2000 which recommended further study by MRI. On April 18, 2000, an MRI study was performed. A benign slow-growing tumor was revealed in the MRI report and on April 20, 2000, plaintiff was referred by defendant's family practice for a neurosurgical consult.
Plaintiffs' complaint alleges, in summary, that defendant Merritt failed to assess, evaluate, diagnose and treat plaintiff's neck tumor in a timely fashion and failed to recognize and heed plaintiff's subjective complaints, indicative of the tumor's presence and advancement, made over a long period of time. Plaintiffs' complaint also alleges a derivative loss of consortium cause of action on behalf of John P. Korcz as spouse of plaintiff Carol Korcz. The merits of this cause of action are not directly in issue in these motions but this claim, derivative in nature, does stand or fall with plaintiff Carol Korcz's medical malpractice cause of action.
There is no dispute that during 1998 and 1999 plaintiff received treatment from defendant Merritt's family practice on a number of occasions for clinical presentations which defendant diagnosed as sinusitis, arthritis or allergies. Plaintiff has submitted an affirmation from a physician, discussed further infra, who opines that the symptoms complained of and treated by defendant on four (4) specific visits in 1998 and 1999 were indicative of the presence and advancement of the mass which was ultimately palpated and identified in March of 2000.
Legal Analysis
A. Defendant Merritt's Summary Judgment Motion on the Issue of Malpractice
Defendant Merritt moves for summary judgment pursuant to CPLR § 3212 on the ground that:
".... it was not a departure from the standard of care to not order a CT scan of the neck prior to April 2000, and that the mass on plaintiff's neck was not diagnosable until that time." (Cirincione Affidavit dated June 2nd, 2005 at 19).
In a medical malpractice action, the physician's burden on a motion for summary judgment can be met by the submission of affidavits or
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