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 ST A TE OF NEW YORK 

COUNTY OF SARATOGA 

LESLEY E GLAND, AS EXECUTRIX OF THE 

ESTA TE OF LUKE G. ENGLAND, 

Plaintiff, 

-againstSETH A. CAPELLO, M.D.; 

SA ORAM. HERMA S, .P.; 

JOSE IA N. TA , M.D.; 

THE SARA TOGA HOS PIT AL; 

SARA TOGA HOSP IT AL MEDICAL GROUP: 

SARA TOGA REGIO AL UROLOGY ASSOCIATES, 

Appearances: 

Jesse A. Drumm, Esq. 

Brown Chiari LLP 

Defendants. 

2470 Walden Avenue. Buffalo, NY 14225 

Attorneys/or Plainlijf 

Karen A. Butler, Esq. 

Maynard, O'Connor, Smith & Catalinotto, LLP 

6 Tower Place, Albany, NY 12203 

Attorneys/or Defendant, 

Seth A. Capello, MD. 

Kathleen A. Barclay, Esq. 

O"Connor, O'Connor, Bresee & First, PC 

20 Corporate Woods Boulevard. Albany, Y 12211 

Attorneys for the Defendants, 

Sandra M. Hermans, N P. , The Saratoga Hospital, 

Saratoga Hospital Medical Group, and 

Saratoga Regional Urology Associates 

Kevin P. Burke, Esq. 

Monique B. McBride, Esq. 

Burke, Scolamiero & Hurd, LLP 

7 Washington Square. Albany. Y 122 12 

Attorneys/or Defendant, 

Josenia ~- Tan. M. D. 

DECISION & ORDER 

Index No.: EF20213420 

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KUPFERMAN, J.: 

This is a medical malpractice action seeking to recover monetary damages based on the 

defendants' alleged failure to timely diagnose the decedent's bladder cancer. The crux of the claim 

against the defendant pathologist is that she deviated from the standard of care when she evaluated 

two specimens provided to her by clinicians at a urology group who were treating the decedent for 

urinary problems. After discovery, the defendant pathologist filed this pending motion seeking 

summary judgment dismissing the complaint as against her. 

The parties have provided competing expert proof on the motion. Both experts (boardcerti fied pathologists) assert that they have reviewed the same specimens which were evaluated 

by the defendant pathologist. Unsurprisingly, the pathologist's expert opines that the pathologist 

accurately interpreted the specimens and did not deviate from the standard of care, whereas the 

plaintiffs expert opines that the pathologist inaccurately interpreted the specimens and deviated 

from the standard of care. 1 

A physician seeking summary judgment in a medical malpractice action bears ··the initial 

burden of presenting factual proof, generally consisting of affidavits, deposition testimony and 

medical records, to rebut the claim of malpractice by establishing that [he or she] complied with 

the accepted standard of care or did not cause any injury to the patient" (Schwenzfeier v St. Peter's 

Health Partners, 21 3 AD3d 1077, 1078 [3d Dept 2023] [internal quotation marks, brackets, and 

citations omitted]). If the physician satisfies this standard, the burden then shifts to the plaintiff to 

1 The pathologist" s expert does not address causation. In contrast, the plaintiffs expert opines that 

these deviations were a significant contributing factor in the spreading of the decedent's bladder 

cancer. Specifically. he opines that if the decedent's cancer "was diagnosed when it should have 

been, in 2015, there were treatments available that very likely would have cured [the decedent's] 

cancer.·· He further opines that at that time the ··cancer was in its early stages, confined to the 

bladder and possibly the prostatic urethra, and could have been treated with BCG intravesical 

immunotherapy" and that, if unsuccessful, the treatment could have included surgery. 

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·'present expert medical opinion evidence that there was a deviation from the accepted standard of 

care and that this departure was a proximate cause of [the] injury" (id. at 1080 [internal quotation 

marks and citations omitted]). "[E]xpert opinions that are conclusory, speculative, or unsupported 

by the record are insufficient to raise triable issues of fact" (Longhi 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 speculative or conclusory, expert opinions in 

opposition to a physician's motion for summary judgment should address specific assertions made 

by the physician's experts, setting forth an explanation of the reasoning and relying on specifically 

cited evidence in the record" (Schwenzfeier, 2 13 AD3d at 1080 [internal quotation marks, 

brackets, and citation omitted]). 

The defendant pathologist's findings/diagnosis are set forth in two reports. Regarding the 

first report ( a cytology report from March 2015), the dispute essentially concerns the language 

used by the defendant pathologist in her report, which states that the decedent's urine specimen 

contained "Highly atypical urothelial cells, suspicious for malignancy." As explained above, the 

pathologist's expert opines that such language was appropriate. She opines that the standard of 

care "requires a pathologist to report that a cytology specimen falls into one of four categories -

benign, atypical, suspicious for malignancy, and malignancy" and that the defendant pathologist 

complied with the standard of care in reporting the cells as ·'highly atypical urothelial cells, 

suspicious for malignancy." She further opines that the standard of care "does not require that the 

pathologist specify in what ways the cells are highly atypical and suspicious for malignancy, just 

that they are highly atypical and suspicious for malignancy.'· This expert opinion, together with 

the deposition testimony and medical records, satisfies the defendant pathologist's initial burden 

(see id. at 1078-1079; Humphrey v Riley, 163 AD3d 1313, 1314 [3d Dept 2018]; De Jesus v 

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Mishra, 93 AD3d 135, 138 [1st Dept2012]; Douglass v Gibson, 218 AD2d 856, 856-857 [3d Dept 

1995]). 

In opposition, the plaintiffs expert opines that the language used by the defendant 

pathologist "did not properly convey the appropriate level of suspicion 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 simply 

'·suspicious for malignancy." The Court finds that this opinion is too conclusory and therefore 

does not create an issue of fact (see Schwenzfeier, 213 AD3d at l 080- I 083; Longhi v Lewit, 187 

AD3d 873, 878-880 [2d Dept 2020]; Humphrey. 163 AD3d at 1314-1 315; Rivers v Birnbaum, I 02 

AD3d 26, 43-48 [2d Dept 2012]; De Jesus, 93 AD3d at 138-140). 

Among other things, the plaintiffs expert has failed to address the opinion of the 

pathologist's expert that the standard of care for cytology involves only four categories of 

reporting, and that a pathologist is not required to specify further about the ways the cells are 

highly atypical or suspicious for malignancy. The plaintiffs expert has also failed to articulate the 

appropriate standard of care. Instead, he simply quibbles with the terminology used by the 

defendant pathologist and opines in a conclusory fashion that the language in the cytology report 

did not adequately convey the appropriate level of suspicion. Specifically, the plaintiff's expert 

has failed to articulate the significance of the difference between the language in the report and the 

language that he opines should have been used in the report ( .. suspicious for malignancy'· vs. 

"suspicious for high grade urothelial carcinoma"), thereby rendering his opinion as conclusory. 

This opinion (as expressed in such a conclusory manner) is also contrary to the record 

evidence (see Humphrey, 163 AD3d at 1313; Rivers, I 02 AD3d at 43-48; De Jesus, 93 AD3d at 

138-140; Myers v Ferrara, 56 AD3d 78, 83-86 [2d Dept 2008]; Douglass, 2 18 AD2d at 857-858). 

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In particular, the language used by the defendant pathologist ("highly atypical urothelial cells" and 

'·suspicious for malignancy") clearly communicated that the cells were suspicious for cancer. In 

addition to providing her report, the defendant pathologist further conveyed her suspicion to the 

treating nurse by calling her to ensure that she had the results (a fact that the plaintiff's expert 

ignores). The record further indicates that the clinicians understood that the sample did not rule 

out the possibility of cancer. In fact, they employed further testing and procedures (including a 

bladder biopsy, cystoscopy, and additional pathology) based in part on the first report. For all 

these reasons, the plaintiffs proof is insufficient to create a triable issue of fact on the first report. 

The plaintiffs expert further challenges the language used in the defendant pathologist's 

second report (surgical pathology report from April 20 15), which contains the fi ndings from the 

bladder biopsy specimen. This report states that the bladder biopsy specimen was: "Extensively 

denuded urothelial mucosa with mild to moderate chronic inflammation. No evident dysplasia or 

malignancy." ' The pathologist's expert agreed that there was ·'no evidence of dysplasia (abnormal 

cell growth) or malignancy ( cancerous cells) in the specimen, and that there [was] mild to moderate 

chronic inflammation." She also agreed that "the specimen was extensively denuded as to the 

urothelial mucosa, meaning that the specimen contained minimal or no tissue of the upper layer of 

tissue of the bladder, such that her evaluation of this specimen would not include evaluation for 

abnormal or malignant cells in that area." She opines that the standard of care " required that [the 

defendant pathologist] analyze the specimen that was provided to her and to describe what she saw 

and what she did not see (including the extensively denuded tissue) in her report to the ordering 

group."' She opines that the defendant pathologist "did these things appropriately, allowing the 

ordering group to use the information she provided together with their clinical information and 

other test results to care for their patient, Mr. England."' 

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In contrast, the plaintit'rs expert disagrees with the defendant pathologist's interpretation 

of the specimen as expressed in the report. In his view, ··the urothelial mucosa in the specimen 

was not just extensively denuded, it was totally denuded - stripped of its surface layer and therefore 

of its characteristics" (emphasis in original). He considers this to be significant, ·'because to say 

that it was extensively denuded implies that it was not entirely denuded, and that there were cells 

with visible characteristics to interpret." He further opines 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 could confirm or rule out the 

presence of dysplasia and/or malignancy." 

The plaintiff's expert opines that the defendant pathologist "should have reported that there 

was no urothelium present to evaluate for dysplasia or malignancy:· According to the plaintiffs 

expert, the standard of care required the defendant pathologist ·'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 should have indicated that '·the biopsy specimen was therefore inadequate to rule 

out a high-grade malignancy, which she should have been concerned about based on the previous 

cytology she had interpreted." The plaintiffs expert also opines that the defendant pathologist 

failed to explain in the report that "there was actually no urothelium present to evaluate, and that 

this specimen was essentially useless in ruling out malignancy." 

Based on these conflicting expert opinions, the Court finds that the plaintiff has created a 

triable issue of fact, rendering summary judgment inappropriate (see Marshall v Rosenberg, 196 

AD3d 817, 819 [3d Dept 202 l]). Unlike with the first report, the plaintiff's expert has adequately 

explained the standard of care and articulated a reason with sufficient detail for his opinion 

regarding the alleged deviation for the second report. Moreover, while the defendant pathologist 

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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 these issues during the trial and challenge the necessity and significance of 

the language advocated by the plaintiffs expert for the second report through an appropriate trial 

motion, if warranted, based on the trial testimony of the clinicians and the plaintiffs expert. 

The Court further disagrees that the recent accusations made against the plaintiffs expert 

disqualifies him as an expert in this case or otherwise renders his opinion as worthless. Such 

accusations involve a completely different matter and concern his credibility, which is not before 

the Court on this summary judgment motion (see Dillenbeck v Shovelton, 114 AD3d 1125, 1127 

[3d Dept 2014]; Donohoe v Goldner, 168 AD2d 412, 413-414 [2d Dept 1990]). 

Accordingly, a triable issue of fact exists on the malpractice claim against the defendant 

pathologist based on the competing expert opinions regarding the second report. The motion 

seeking summary judgment is therefore DENIED. To the extent not discussed above, the Court 

has considered the parties' remaining contentions and finds them to be either unpersuasive or 

lacking in merit. 

This constitutes the Decision and Order of the Court. No costs are awarded. The Court is 

uploading the original for filing and entry. The Court further directs the parties to serve notice of 

entry in accordance with the Local Protocols for Electronic Filing for Saratoga County. 

So-Ordered. 

Dated: July l , 2024 

at Ballston Spa, New York A. KUPFERMAN 

Enter. 

Papers Considered: 

NYSCEF Doc. Numbers 59-95 

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