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Clermont-Lundy v. Zimbalist10/5/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Upon the foregoing papers, defendant Eliot Howard Zimbalist, M.D. moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's complaint as against him on the grounds that there was no physician-patient relationship between himself and the plaintiff's decedent, Morris T. Lundy and, even if such relationship existed, that Dr. Zimbalist did not deviate from accepted medical practice in his treatment of Mr. Lundy. Plaintiff Yamilee Clermont Lunch, as administratrix of the goods, chattels and credits of Morris T Lundy, deceased, and Yamilee Clermont-Lundy, individually (collectively "plaintiff"), opposes the instant motion on the ground that triable issues of fact exist which preclude the grant of summary judgment to Dr. Zimbalist. Defendant Maimonides Medical Center (Maimonides) moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's complaint as against it on the grounds that neither the employees of Maimonides nor Maimonides itself can be held liable for the treatment rendered by Dr. Zimbalist as plaintiff's private attending physician and that, in any event, the care and treatment provided by Maimonides or its employees during Mr. Lundy's admission to the hospital were within accepted standards of hospital practice. Plaintiff opposes the motion by Maimonides on the ground that said motion is untimely and Maimonides has failed to demonstrate good cause for its delay in filing same.
This medical malpractice action stems from the alleged failure of Dr. Zimbalist and Maimonides to diagnose Mr. Lundy with colon cancer which eventually metastasized to his liver. In 1995, Mr. Lundy sought treatment for various gastrointestinal complaints with Dr. Gary Gettenberg, a gastroenterologist. Dr. Gettenberg diagnosed Mr. Lundy with Crohn's disease, an illness which causes chronic gastrointestinal inflammation and treated him for that aliment. Dr. Gettenberg performed a colonoscopy on Mr. Lundy in 1995 and placed him on a low fiber diet. Mr. Lundy had an umbilical hernia repair performed on him in 1998 and was hospitalized with gastrointestinal complaints in 1999. During that hospitalization, another colonoscopy was performed on Mr. Lundy but was not completed due to an intestinal blockage.
In 2000, Dr. Gettenberg ordered a CT scan of Mr. Lundy's abdomen. The results of the CT scan were as follows:
1. The patient is status post ventral abdominal hernia repair. There is a roughly 3 cm. In maximum width with ill defined region of minimally enhancing soft tissue density at the site of the prior surgery, which likely represents post operative keloid or desmoid/fibromatosis.
2. There is a thickening of the terminal ileum and cecum with infiltration of the adjacent mesenteric fat, consistent with the small bowel findings suggestive of Crohn's disease.
With regard to Mr. Lundy's liver, the CT scan revealed "a roughly 1 cm homogenously hypoattenuating lesion noted in the anterior segment of the right lobe of the liver . . . most consistent with an incidental hepatic cyst."
In 2000, Mr. Lundy was referred by Dr. Gettenberg to Dr. Zimbalist, and he first visited Dr. Zimbalist on August 8, 2000. Dr. Zimbalist testified at his deposition that Dr. Gettenberg referred Mr. Lundy to him so that he could evaluate Mr. Lundy for participation in the clinical trial of Interleukin 11, a drug being tested as a treatment for Crohn's disease. Dr. Zimbalist examined Mr. Lundy and made findings consistent with Mr. Lund
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