### England v Capello 2024 NY Slip Op 32193(U) July 1, 2024 Supreme Court, Saratoga County Docket Number: Index No. EF20213420 Judge: Richard A. Kupferman Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001 (U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

### SUPREME COURT OF THE STATE OF NEW YORK C OUNTY OF SARATOGA LESLEY E GLAND, AS E XEC UTRIX OF THE ESTA TE OF LUKE G. EN G LAND , Plaintiff,

- again s t
SETH A. 

### CA PELLO, M.D
. ; SA ORAM. H ERMA S , .P. ; JOS E IA N. TA , M.D.; THE SARA TOGA HOS PIT AL ; SARATOGA HOSP IT AL MEDICAL GROUP: SARATOGA REGIO AL UROLOGY ASSOCIATES,

App earanc es: Jesse A. Drumm , Esq. Brown Chiari LLP Defendants.

2470 Walden Avenue. Buffalo , NY 14225 A ttorn eys/o r Plainlijf 

### Karen A. Butler, Esq. Ma y nard , O ' Connor, Sm ith & 

### Catalinotto, LLP 6 Tower Place , Albany , NY 12203 A tt orney s/or Defendant , Se th 

### A. Capello , MD
. 

### Kathleen A. Barcla y, Esq. O"Connor, O'Connor, Bresee & First, PC 20 Co rp orate Wood s Boulev ard. Albany , Y 12 2 1 1 A ttorneys fo r th e D efendants , Sandra M. 

### Hermans , N P. , The Saratoga Ho sp ital , Sar atoga Ho spi tal Medical Group, and Sara toga Regional U rology Associates 

### Ke vin P
. Burke, Esq. Monique B. McBri de, Es q. Burke , Scolamiero & 

### Hurd , LLP 7 Wa s hingto n Square. A lbany. Y 1 22 12 Attorneys/or Defendant , Josenia ~ - Tan
. M
.D
. D EC IS IO N & ORD E R Index N o . : E F20213420



### [* 1]KUPFERMAN , J.: This is a medical malpractice action seeking to recover monetary damages based on the defendant s' alleged failure to timel y diag no se the deced ent 's bladder cancer. The crux of the claim against the defendant pathologist is that s he deviated from the standard of care when she evaluated two specimen s pro v ided to her by clinician s at a urology group who were treatin g the decede nt for urinary problem s. A fter di sc overy , the defendant patho logist filed thi s pending motion seeking
s ummary judgment dismissing the complaint a s against her. The parties have pro v id ed competing expert proof o n the motion. Both ex perts ( boardcerti fied pathologists) a ssert that they have re v iewe d the s ame specimens which were evaluated by the defendant pathol og i s t. U nsurpri s ing ly, the pathologi s t 's expert opines that the pathologist
accuratel y interprete d the s pecimen s and did not deviate from the s tandard of care , whereas the plaintiffs exp ert opines that the pathol og i st in acc uratel y interprete d the specimen s and deviated from the standard of care. 1 A phys ician see kin g s ummary judgment in a me di cal malpractice action b ea rs ··the initial burden of presenting factual proo f, generally consisting of affida vits , deposition testimony and medical records , to rebut the claim o f malpractice by establishing that [he o r s he] complied w ith the accepted standard of care or did not cause any injury to the pati e nt" (Schwenzfeier v St. Peter's Health Partners, 21 3 AD3d 1077 , 1078 [3d Dept 2023] [internal quotation marks, brack e ts, and citation s omitted]). If the physician s ati s fi es thi s standard, the burde n then s hift s to the plaintiff to

1 The pathol ogis t" s expert does not address causation. In c o ntra s t , the plaintiff s expert opines that these deviation s were a s i g nificant contributing factor in the s preading of the decedent's bladder cancer. Specificall y . he opine s that if the decedent ' s c ancer "was diagnosed when it s hould hav e been , in 2015 , there were treatment s av a ilable that very likely would have cured [the decedent ' s] c ancer.·· H e further opine s that at that time the ··cancer was in its early s tages , confined to the bladder and po ss ibl y the prostatic urethra , and could have be e n tre ated with B C G intrave s ical immuno thera p y" and that , if un s ucces s ful , the treatment could hav e included s urgery. 

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### [* 2]· ' present expert medical opinion evidence that there was a deviation from the accepted standard of
care and that this departure was a proximat e cause of [the] injury " (id. at 1080 [internal quotation marks and citations omitted]). " [E]xpert opinions that are conclusory, speculative, or unsupported by the r ec ord are insufficient to rai se triabl e issues of fact " (Lo nghi v Lewit , 187 ADJd 873, 878 [2d Dept 2020] [internal quotation marks and citation omitted]; see Schwenzfeier, 213 AD3d at I 080-1083). · ' In order not to be considered s peculati ve or conclusory, expert opinions in
o ppo sitio n to a physician's moti o n for summary judgment sh o uld address specific assertions made by the phy s ician 's experts, setting forth an explanation of the rea so ning and relying on s pecifically cited evidence in the record " ( Schwenzfeier , 2 13 A D 3d at 1080 [internal quotation marks , brackets , and citation om itted]). The defendant pathologi s t's finding s/diagnosi s are set forth in two reports. Regarding the first report (a cyto lo gy report from March 2015) , the di s pute essentiall y concern s the lan guage used b y the d efendant pathologist in her report, which sta te s that the decedent ' s urine sp ecimen contained "Highly at ypical urothelial cell s, sus piciou s for mali g nancy." A s expla ined above , the pathol ogi st's expe rt opines that s uch language was appropriate. She o pines that the standard of
care " require s a pathologist to report that a cytology sp ec imen fall s into one of four categorie s - benign , atypical , s uspicious for malignanc y, and malign anc y" and that the defendant pathologi s t complied with th e standard of care in reporting the cells as · ' highl y atypical urothelial cells , su s piciou s for malignancy. " She further opine s that the standard of care "does not require that the pathol ogi st sp ecify in what ways the cell s are hi gh ly atypical and s uspicious for mali g nanc y, ju s t that the y are highl y aty pical and suspicious fo r malignancy .'· T hi s expert opinion, together with the deposition te s timo ny and medical record s, sati sfies the defendant pathologist 's initial burden (see id
. at 1078-1079 ; Humphrey v Riley , 1 63 AD3d 1313 , 1314 [3d Dept 2018] ; De Je s us v


### 3 

### [* 3]Mishra , 93 A D 3d 135 , 138 [1st Dept2012] ; Douglass v Gibson , 218 AD2d 856 , 856-857 [3d D ep t 1995]). In opposition , the plaintiffs expert opines that the languag e used by the defendant pathologi st " did not prop erl y con vey the appropriate level of suspic ion to the clinician , and thus fell below the standard of care. " He further opines that the defendant pathologist should have reported the findings as " suspicious for high grade urothelial carcinoma" rather than s impl y '·suspicious for malignanc y." The Court finds that thi s opinion is too conclusory and therefore does not c reate an i ssue of fact (s ee Schwe n z feier , 213 AD3d at l 080- I 08 3; Long hi v Lewit , 187 AD3d 873 , 878-880 [2d Dept 2020] ; Humphrey. 163 AD3d at 1314-1 3 15 ; Rivers v Birnbaum , I 02 AD3d 26, 43-48 [2d Dept 2012] ; De J esus, 93 AD3d at 138-140 )
. A mong other thing s , the plaintiff s e x pert has failed to addre ss the opinion o f th e patholo g ist' s ex pert that the s tandard o f ca re for c y tolog y in vol ves only four categorie s of reporting, and that a pathologi s t i s no t required to specify further about the ways the cells are highl y atypical or suspicio u s for malignancy. The plaintiffs ex pe rt has also failed to articulate the appropriate standard of care . In s tead, he s imply quibble s with the terminolog y u se d by the defendant pathologi st and opines in a conclusory fashio n that the language in the cy tolog y report did not adequatel y convey the appropriat e le ve l o f suspicion. Specifically , the plaintiff's expert has failed to articulate the significance of the difference between the language in the rep ort and the language that he opines shou ld have be e n used in the report (
.. sus pi c ious for malignanc y' · vs . "s uspici o u s for hi g h grade urothelial carc inoma "), thereb y rendering hi s opinion as conclusory
. This op inio n ( as expre ssed in such a conclu sory manner) is al so contrary to the record evidence (see Humphrey , 1 63 AD3d at 1313 ; Rivers , I 0 2 AD3d at 43-48; De J es u s, 9 3 AD3d at 138-140 ; Myers v Ferrara, 56 AD3d 78, 83-86 [2 d Dept 2008 ] ; Douglas s, 2 18 AD2d at 857-858).



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### [* 4]In particular, the lang uage u s ed by the defendant pathologi st (" highl y at y pical urothelial cell s" and

' ·su s picious for malignancy " ) clearly communicated that the cells were suspiciou s for cancer. In add iti on to providing h er report, the defendant pathologi s t further conveyed her s u s picion to the treating nurse by calling her to e nsure that she had the results (a fact that the plaintiff's expert ignore s). The record further indicates that the clinicians under s tood that the s ampl e did not rule out the p ossibility of cancer. In fact, they e mplo ye d further te sting and proced ure s (including a bl adder biop sy, cystoscopy, and additi ona l patholog y) b ased in part o n the fir st re port. For all the s e rea so n s , the plaintiff s proof i s in s uffi cient to create a triable issue of fact on the first rep ort. The plaintiffs expert further chall e nge s the languag e u sed in the defendant pathologi s t 's
s ec o nd report (surgical patholog y report from April 20 1 5), w hich contains the fi ndi ngs from the bladder biopsy s pe c imen. Thi s r e port states that the bladde r biop sy s pecimen was: "Extens ively denuded urothelial mucosa wit h mild to moderate chronic inflammation. No evident dys plasia or malignanc y ." ' The patholo g i st's exp ert agreed that there was ·'no evidence o f dysp lasia (a bnormal cell growth) or mali g nanc y (cancerous ce ll s) in the specimen , and that there [ was] mild to m o derate chronic inflammation. " She al so agreed that "the s pecimen was extensive l y denuded as to th e
urothel ial muco s a, meaning that the specime n contained minim al or no ti ss ue of the upper layer of ti ss ue of the bl adder, s uch that her eva luation of thi s specimen wo uld not include eva lu at io n for abnorma l or malignant ce ll s in that area." S he opines th at the s tandard of care " required that [the defendant pathologi s t] analyze the specimen that was pro v ided to h e r and to describe what s he s aw and w hat she did n o t see (i ncluding the extensive l y denud ed ti ss ue) in h e r re port to the o rderin g group."' She opine s that the de fe nd ant pathol ogis t " did the se thing s appropriatel y , allowing th e ordering group to use th e informat i o n s h e provided to gethe r with the ir clinical information and other te s t re s ult s to care for their patient, Mr. E ng land." '


### 5 

### [* 5]In contrast, the plaintit'rs expert disagrees w ith the defendant pathologist's inte rpretation of the specimen as expressed in the report. In his v iew, ··the urothelial mucosa in the specimen
was notjust exten s ively denuded , it was totally denuded

- stripped of its surface layer and therefore of its characteristics" (emphasis in original). He considers thi s to be sign i ficant, · ' because to say that it was extensively denuded implies th at it was not entirely denuded , and that there were cells with visib le characteristics to interpret. " He further o pine s that the reporting of '·no evidence of dysplasia or malignancy " differs from his interpretation that " the cells were totally denuded , and therefore lacked any characteristics from which a pathologist cou ld confirm or rule o ut the presence of dysplasia and /or malignancy. " The plaintiff's expert opines that the defendant pathologist "s hould have reported th a t th ere
was no urothelium prese nt to evaluate for dysplasia or malignanc y :· A c cording to the plaintiffs expert , the standard of care required the defendant pathologi st · ' to report to the clinician if the biopsy specimen was inadequate to allow or confirm the clinical suspicion, if there is one " and that the report sho uld ha ve indicated that ' ·the biopsy specimen was therefore inadequate to rule
out a high-grade mali gnancy , whic h s he s hould have been concerned about based on the prev ious cytology she had interpreted. " The plaintiffs expert al so opines that the defendant pathologist fa iled to explain in the report that "the re was actua ll y no uro thelium present to evaluate, and that this s pecimen wa s essentially useless in ruling out malignanc y." Based on these conflictin g expert opinions, the Court finds that the plaintiff has created a triable i ss ue of fact, rend e ring summary judgment inappropriate (s ee Marsha ll v Ro senberg, 196 AD3d 817 , 819 [3d Dept 202 l]). Unlike w ith the first report , the plaintiff' s expert ha s adequately expla ined the standard of care and articulated a reason w ith s ufficient detail for his o pinion regarding the alleged deviation for the second report . Moreo ver, while the d ef endant pathologist


### 6 

### [* 6]may be correct that any additional language in the second report would have been superfluous (or perhaps insignificant) , the Court cannot reach this conclusion as a matter of law given the competing expert opinions and the limited record on the motion. The defendant pathologist may nonetheless develop the se issue s during the trial and challenge the nece ss ity and s ignificance of the language advocated by the plaintiff s expert for the seco nd report through an appropriate trial motion , if warranted , based on the trial testimony of the clinicians and the plaintiff s expert. The Co urt further disagrees that the rec e nt accusations made again st the plaintiffs expert disqualifies him as an expert in thi s case or otherwise renders his opinion as worthless. Such accusations involve a completely different matter and concern hi s credibility , which is not before the Cou rt on this summary judg ment m otio n (see Dillenbeck v Shovelton , 114 AD3d 11 25 , 1127 [3d Dept 2014]; Dono h oe v Goldner , 168 AD2d 412 , 413-414 [2d Dept 1990]). Accordingly , a triable iss ue of fact exists on the malpractice claim against the defendant patho log ist based on th e competing expert opinions regarding the second report. The motion
s eeking summary jud gment i s therefore 

### DENIED. To the extent not di sc u ssed above, the Court has considered the parties' remainin g contentions and finds them to be either unpersuas ive or lacking in merit. This cons titutes the Deci s ion and Order of the Court. No costs are awarded. The Court i s uploading the o riginal for filing and entry. The Court further directs the parties t o serve notic e of entry in accordance with the Local Protocol s for Electronic Filing for Saratoga County. So-Ordered. Dated: July l , 2024 at Ball ston Spa, New York A. KUPFERMAN Enter. Pap ers Co n s idered: NYSCEF Doc
. Numb ers 59 -95 7 

### [* 7]