State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 520235 

_________________________________

FRANK H. FULLER JR., Individually

and as Administrator of the 

Estate of JOYCE L. FULLER, 

Deceased,

RespondentAppellant,

v MEMORANDUM AND ORDER

DEBRA M. ABERDALE et al.,

AppellantsRespondents,

et al.,

Defendants.

_________________________________

Calendar Date: June 5, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

__________

Carter, Conboy, Case, Blackmore, Maloney & Laird, PC,

Albany (William D. Yoquinto of counsel), for Debra M. Aberdale

and others, appellants-respondents.

Thorn Gershon Tymann & Bonanni, LLP, Albany (Erin Mead of

counsel), for Richard MacDowell, appellant-respondent.

Mills Law Firm, LLP, Clifton Park (Christopher K. Mills of

counsel), for Frank H. Fuller Jr., respondent-appellant.

Maguire Cardona, PC, Albany (Alicia M. Dodge of counsel),

for Richard Clift and another, appellants-respondents.

__________
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Lynch, J.

Cross appeals (1) from an order of the Supreme Court

(Connolly, J.), entered March 11, 2014 in Albany County, which,

among other things, granted plaintiff's application to file

revised expert affidavits, and (2) from an order of said court,

entered August 6, 2014 in Albany County, which, among other

things, partially denied certain defendants' motions for summary

judgment dismissing the amended complaint against them.

This medical malpractice action arises out of the medical

care provided to Joyce L. Fuller (hereinafter decedent), who was

diagnosed with stage IV rectal cancer in September 2008 and

passed away in April 2010 at the age of 47. Plaintiff,

decedent's spouse, commenced this action in November 2010,

raising the core claim that certain medical professionals who

treated her from 2006 through 2008 failed to timely diagnose

decedent's cancer, depriving her of an opportunity for survival

(see Schaub v Cooper, 34 AD3d 268, 270 [2006]; Provost v Hassam,

256 AD2d 875, 878-879 [1998]). Following the completion of

discovery, several defendants moved for summary judgment

dismissing the complaint. Initially, by order entered in March

2014, Supreme Court determined to accept untimely expert

opposition affidavits submitted by plaintiff. By order entered

in August 2014, the court granted the motions of defendant

Richard Clift, an internist and gastroenterologist, and his

employer, defendant Albany Gastroenterology Consultants, P.C.

(hereinafter AGC), and dismissed the complaint against them as

untimely in part and for lack of causation. The court also

granted the motion of defendant Roy Fruiterman, who was employed

by defendant Community Care Physicians, P.C. (hereinafter CCP),

dismissing the complaint against him for lack of causation. With

respect to defendants Debra M. Aberdale, Jeffrey Henderson and

Richard MacDowell, who also were employed by CCP during the

relevant time period, the court granted their motions only to the

extent of treatment provided during 2008, but left intact the

claim pertaining to treatment provided in 2007. Aberdale,

Henderson, Fruiterman, CCP, MacDowell, Clift and AGC appeal from

the March 2014 order, and plaintiff cross-appeals from that

order. Aberdale, Henderson, CCP and MacDowell also appeal from

the August 2014 order, and plaintiff cross-appeals therefrom.
-3- 520235 

Initially, we find that Supreme Court did not abuse its

discretion in considering plaintiff's untimely expert affidavits. 

Supreme Court, at plaintiff's request, extended the return date

of moving defendants' motions to December 6, 2013, with

plaintiff's responding papers due November 27, 2013. Plaintiff

submitted unsigned copies of three expert affidavits on November

27, 2013. By letter dated December 4, 2013, plaintiff requested

permission to substitute the executed affidavit of his general

surgery expert for the previous unsigned affidavit. Several of

the moving defendants objected, pointing out that the affidavit

had been modified. By letter dated December 6, 2013, plaintiff's

counsel explained that there was a delay in receiving the signed

affidavits from his experts and that the changes made by the

expert were unanticipated. In addition, plaintiff further

submitted a signed version of his gastroenterology expert's

affidavit, noting that it too had been unexpectedly modified. On

December 9, 2013, plaintiff submitted a signed copy of his

hematology expert's affidavit. Original affidavits from all

three experts were submitted on December 17, 2013. Following a

conference on February 7, 2014, Supreme Court determined to

accept the affidavits on condition that plaintiff's counsel pay

$1,000 to each defense firm. 

In an instance, as here, where a party submits unsworn

affidavits in opposition to a motion, and offers the late

substitute of signed affidavits, the decision whether to accept

the late submission falls within the trial court's discretion

(see Fleck v Calabro, 268 AD2d 738, 738 [2000]). In our view,

plaintiff's counsel's excuse in failing to timely obtain and

submit signed affidavits from his three experts essentially

amounted to law office failure (see Associates First Capital v

Crabill, 51 AD3d 1186, 1187-1188 [2008], lv denied 11 NY3d 702

[2008]). Moreover, counsel's failure to inform defendants up

front that the redacted copies served on November 27, 2013 were

not actually signed was misleading. Nonetheless, plaintiff's

counsel readily acknowledged that he was unaware that two of the

experts altered the language in their signed affidavits, the

delay here was minimal and defendants were all given an

opportunity to further respond to the revised expert affidavits. 

Given our preference for resolving cases on the merits, we find

that Supreme Court reasonably fashioned a remedy to accept the
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unorthodox filing, while at the same time imposing a monetary

sanction commensurate with the disruption caused by plaintiff's

counsel (see Rosenblatt v New York City Tr. Auth., 122 AD3d 410,

410-411 [2014]; Wilcox v Newark Val. Cent. Sch. Dist., 107 AD3d

1127, 1130-1131 [2013]; Associates First Capital v Crabill, 51

AD3d at 1188; Gokey v DeCicco, 24 AD3d 860, 862 [2005]; Indrunas

v Escher Constr. Corp., 277 AD2d 28, 28-29 [2000]).

Turning to plaintiff's medical malpractice claims, the

burden in a medical malpractice action is to establish both a

deviation from accepted practice and that the deviation was a

proximate cause of the injury (see Suib v Keller, 6 AD3d 805, 806

[2004]). On a summary judgment motion, a defendant is required

to establish through competent evidence "either that there was no

departure from accepted standards of practice in [the]

plaintiff's treatment or that any such deviation did not injure

[the] plaintiff" (Rivera v Albany Med. Ctr. Hosp., 119 AD3d 1135,

1137 [2014]). This burden may be satisfied through a

"physician's affidavit or affirmation describing the facts in

specific detail and opining that the care provided did not

deviate from the applicable standard of care" (Cole v Champlain

Val. Physicians' Hosp. Med. Ctr., 116 AD3d 1283, 1285 [2014]. 

Here, the record shows that decedent first sought treatment

from AGC and Clift in January 2006 for symptoms of dyspepsia and

upper abdominal discomfort. In view of decedent's long history

of symptoms, including abdominal pain and heartburn, Clift

recommended an endoscopy. The endoscopy was performed in

February 2006 and decedent was diagnosed with having non-erosive

reflux disease. Decedent was advised to schedule a follow-up

appointment in six months. While the record indicates that

Clift's office sent a reminder notice in August 2006, decedent

did not treat with Clift again until July 2008. 

As relevant to this action, decedent's course of treatment

with Aberdale, Henderson, MacDowell and CCP (hereinafter

collectively referred to as the CCP defendants), began on October

12, 2007 when decedent, who went to her primary care provider

complaining of upper abdominal and stomach pain, constipation and

hemorrhoids, was examined by Aberdale, a nurse practitioner. 

Aberdale performed an abdominal and external rectal examination
-5- 520235 

of decedent, ordered blood work and an ultrasound to assess the

gallbladder, the results of which were described as normal or

unremarkable, and instructed decedent to go to the emergency room

if her pain continued or worsened. Later that evening, decedent

did go to the emergency room with complaints of abdominal pain. 

On October 24, 2007, decedent was examined by Henderson, an

internist, for complaints of epigastric pain. Henderson, in

turn, referred decedent to MacDowell, a surgeon. When decedent

saw MacDowell on October 29, 2007, she complained of abdominal

pain, nausea and bloating. MacDowell ordered a gallbladder test

that produced normal, albeit not ideal, results. Nonetheless, in

view of decedent's symptoms and a family history showing that

both her mother and sister had their gallbladders removed,

MacDowell surgically removed decedent's gallbladder on November

6, 2007. Decedent followed up with MacDowell on November 21,

2007, and reported that her pain had subsided, but that she was

experiencing pain and "early satiety." On November 27, 2007,

decedent again sought treatment from Henderson, who performed an

external rectal examination to confirm the presence of a

hemorrhoid. At her final visit with MacDowell on January 9,

2008, decedent was still reporting "digestive problems" and pain. 

According to MacDowell, these were normal postoperative symptoms. 

In July 2008, after she returned to Clift upon a referral

by Fruiterman, Clift diagnosed decedent with diverticulitis,

prescribed a course of antibiotics and recommended that she

undergo a colonoscopy once she finished the medication. When

decedent saw Clift again on August 15, 2008 with symptoms of

rectal bleeding, he scheduled the colonoscopy, which was

performed on September 16, 2008. The procedure revealed a rectal

mass subsequently determined to be malignant, and later testing

revealed that the cancer had metastasized to decedent's liver and

a lymph node. Radiation and chemotherapy treatment were pursued

with limited success. 

Plaintiff maintains that AGC, Clift and the CCP defendants

deviated from the standard of care by failing to take prompt

steps to identify the tumor, either through a digital rectal

examination or a colonoscopy, throughout the course of treatment

beginning in January 2006 through September 2008. 

Correspondingly, plaintiff asserts early detection would have
-6- 520235 

allowed for viable treatment before the cancer metastasized to

decedent's liver and lymph node. Since the statute of

limitations governing a medical malpractice claim is 21⁄2 years,

the services provided in 2006 fall beyond the limitations period

unless, as plaintiff contends, there was a continuous course of

treatment provided by Clift (see CPLR 214-a; Nykorchuck v

Henriques, 78 NY2d 255, 258 [1991]). Under the continuous course

of treatment doctrine, the 21⁄2-year period does not begin to run

until the course of the treatment ends, provided "the course of

treatment which includes the wrongful acts or omissions has run

continuously and is related to the same original condition or

complaint" (Nykorchuck v Henriques, 78 NY2d at 258 [internal

quotation marks and citations omitted]). 

Given the treatment sequence outlined above, we find that

Supreme Court properly determined that the continuous treatment

doctrine did not apply to toll the statute of limitations for

treatment that Clift provided in 2006. At that time, decedent

was treated for upper abdominal pain and, while a colonoscopy and

follow-up appointment were recommended, no such appointment was

made for over 21⁄2 years. By comparison, in July 2008, decedent

was referred to Clift for complaints of lower abdominal pain and

rectal bleeding. We conclude that the record does not support

either a finding that treatment was rendered for the same illness

or that there was a mutual anticipation of future treatment (see

Casale v Hena, 270 AD2d 680, 682 [2000]; compare Aulita v Chang,

44 AD3d 1206, 1208-1209 [2007]). It follows that any claim for

services rendered by Clift in 2006 is barred by the statute of

limitations. 

In response to plaintiff's timely claims with regard to the

treatment he provided in 2008, Clift submitted an affidavit

wherein he set forth the treatment he provided in July 2008, when

decedent had a CT scan that revealed diverticulitis but no mass,

and August 2008, when he scheduled a colonoscopy based on

decedent's complaints of rectal bleeding. He opined that it was

within the standard of care to treat the diverticulitis before

performing a colonoscopy. Further, although Clift also conceded

that he did not perform a digital rectal examination in July or

August 2008, he explained that, since the September 2008

colonoscopy revealed that the tumor was located 10 centimeters
-7- 520235 

from the anal verge, it would not have been discovered upon such

an examination.1 Moreover, Clift opined that, since the

colonoscopy revealed that decedent had stage IV adenocarcinoma,

the earlier detection of this condition on July 22, 2008 "would

not have affected her care, treatment or likelihood of a cure." 

In our view, Clift's submissions satisfied his burden of proof as

to both the care provided and as to proximate cause, and Supreme

Court properly shifted the burden to plaintiff to provide

competent expert medical opinion evidence raising genuine issues

of material fact as to deviation and causation (see Friedland v

Vassar Bros. Med. Ctr., 119 AD3d 1183, 1187 [2014]). Because

plaintiff offered no expert proof that Clift's treatment in 2008

adversely affected decedent's prognosis, Supreme Court properly

dismissed plaintiff's claims against Clift and AGC (see Caulkins

v Vicinanzo, 71 AD3d 1224, 1227 [2010]; Giambona v Stein, 265

AD2d 775, 776 [1999]).2 

We turn next to the CCP defendants. With specific

reference to the course of treatment provided, Aberdale,

Henderson and MacDowell each submitted an affidavit opining that

the care provided was appropriate and that the symptoms

encountered, which did not include lower abdominal pain, did not

1 Plaintiff's expert gastroenterologist opined that Clift

was required to perform a digital rectal exam on July 22, 2008,

and that, had he done so, he would have detected the tumor

located only five centimeters from the anal verge. The flaw in

this assessment, as recognized by Supreme Court, is that the

medical records actually place the tumor 10 centimeters from the

anal verge. In his colonoscopy procedure report, Clift described

the location of the tumor as "10 cm from the entry site, and

extending proximally for 5 cm." In a corresponding letter

referral that same day, Clift elaborated that the tumor was found

"beginning 10 cm from the anal verge and extending another 5 cm

proximally to 15 cm from the anal verge." The location assumed

by plaintiff's expert finds no support in the medical records.

2 As discussed in greater detail below, plaintiff’s

hematologist does not address causation with regard to treatment

provided by Clift, AGC or the CCP defendants in 2008.
-8- 520235 

warrant either a digital rectal examination, a pelvic examination

or the scheduling of a colonoscopy. In addition, MacDowell

submitted an expert affidavit from Jay Dewell Jr., a surgeon, who

reaffirmed MacDowell's diagnosis of gallbladder disease, that

surgery was warranted and that decedent's symptoms did not raise

a concern of colorectal cancer. 

The CCP defendants also submitted an affidavit by Sheila

Lemke, a physician board certified in hematology and oncology. 

For her part, Lemke opined that, as of October 2007, decedent's

cancer had reached stage IV and had already metastasized to the

liver. According to Lemke, when decedent had surgery in December

2008, the surgeon noted that "she presented with synchronous

rectal and liver metastasis – meaning that the rectal mass and

metatastic disease to the liver developed concurrently." As

such, Lemke concluded that decedent's treatment options and

prognosis would not have changed even if the tumor was detected

in October 2007. In our view, Supreme Court properly determined

that the CCP defendants met their initial burden of establishing

that the treatment provided was within the standard of care. 

Further, based on Lemke’s affidavit, we agree with Supreme Court

that, even if their treatment did fall below the standard of

care, the CCP defendants demonstrated that they did not affect

decedent's prognosis in any way. 

In response to the CCP defendants' prima facie showing as

to the standard of care and causation, plaintiff's

gastroenterology expert opined that, in view of decedent's

symptoms and the reported family history of colon polyps,

Aberdale and Henderson deviated from the standard of care by

failing to have decedent undergo a colonoscopy.3 Similarly,

plaintiff's general surgery expert opined that MacDowell deviated

from the standard of care by failing to refer decedent for a

colonoscopy. The record establishes that when decedent first saw

Clift on January 17, 2006, she indicated on her patient

3 Given the location of the tumor described above, we agree

with Supreme Court that there is no factual support for

plaintiff's malpractice claim based on the CCP defendants'

failure to perform a digital rectal examination. 
-9- 520235 

information sheet that there was a family medical history of

colon polyps. The same day, Clift wrote his letter report to

Michael Greenblatt, decedent's referring physician at CCP,

advising that decedent's family history was "notable for a father

who is alive at 76 with . . . a history of colon polyps." 

Further, Clift's observation was coupled with a recommendation to

consider having a colonoscopy in the near future. 

Plaintiff's gastroenterology expert opined that the CCP

defendants were required, under the standard of care, to review

the medical history in decedent's chart. This expert further

opined that, in view of decedent's history, her persistent

symptoms and the fact that she had yet to have a colonoscopy, an

immediate referral for a colonoscopy was required. Plaintiff's

general surgeon expert echoed the same opinion concerning

MacDowell. Although Clift further explained that decedent

informed him that she was uncertain whether her father had

polyps, neither decedent's patient information sheet nor Clift's

letter report to Greenblatt indicates any such uncertainty. Nor

do we agree with the CCP defendants' contention that the asserted

failure to review decedent's chart constitutes a novel theory. 

Such a review certainly falls within plaintiff's particularized

claims that the CCP defendants failed to properly evaluate

decedent's complaints and diagnose decedent's cancer. 

In response to Lemke's opinion as to causation, plaintiff

submitted an affidavit by a hematologist who expressly refuted

Lemke's claim that the cancer had metastasized to decedent's

liver by October 2007, and opined that a timely diagnosis "would

have given the decedent a better likelihood of surviving this

type of cancer." In rendering this opinion, the expert pointed

to a CT scan performed on October 13, 2007, an abdominal sonogram

and the gallbladder surgery MacDowell performed in November 2007,

none of which indicated any liver metastasis. "Where oncological

experts present competing opinions as to causation, particularly

about the progression of the disease, there is an issue of fact

for the jury to decide" (Polanco v Reed, 105 AD3d 438, 441

[2013]; see Provost v Hassam, 256 AD2d at 878-879). Here, we

agree with Supreme Court's finding that plaintiff's experts

raised genuine issues of fact as to whether the CCP defendants

deviated from the standard of care and proximate cause with
-10- 520235 

respect to services provided during 2007. 

Finally, we recognize that plaintiff's gastroenterologist

expert opined that, as Aberdale's supervising physician,

Fruiterman breached his duty to intercede and recommend an

appropriate referral for a colonoscopy (see Kavanaugh v Nussbaum,

71 NY2d 535, 546 [1988]; Ruggiero v Miles, 125 AD3d 1216, 1216-

1217 [2015]). That theory of vicarious liability, however, was

not set forth in plaintiff's bill of particulars and, thus,

Fruiterman's motion for summary judgment was properly granted

(see Price-Linden v State of New York, 119 AD3d 1192, 1192-1193

[2014]; Suits v Wyckoff Hgts. Med. Ctr., 84 AD3d 487, 489

[2011]).

McCarthy, J.P., Egan Jr. and Clark, JJ., concur.

ORDERED that the orders are affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court