Summary Judgment Obtained in Radiology Case

Summary Judgment Obtained in Radiology Case

Senior Trial Partners Daniel L. Freidlin and Aryeh S. Klonsky, and Associate Gabriella M. Levine, successfully moved for summary judgment in a case involving an alleged failure to diagnose lung cancer in a then 63-year-old married man.  We represented two radiologists and their practice. In late 2012, the decedent presented for two separate chest x-rays to evaluate his complaint of cough. One year prior, the decedent presented to the same radiology facility to undergo a PET CT to evaluate the status of his preexisting colon cancer. That PET CT identified the presence of ground glass opacification, for which the nonparty radiologist recommended clinical correlation. The plaintiff's lawyer argued that our client radiologists had a duty to compare the x-rays to the prior PET/CT, recognize the significance of ground glass opacification, and recommend follow-up based upon the prior PET/CT scan.

Nearly five years later, in September 2017, plaintiff under went a non-contrast CT scan that identified a spiculated nodule in the anterior segment of the left upper lobe of the lung. The nodule was in the general vicinity of the previously noted ground glass opacification. Plaintiff contended that the ground glass opacification five years earlier represented the earliest signs of this lung cancer, and that the failure to recommend follow-up in 2012 allowed the cancer to progress in stage and metastasize.

We moved for summary judgment, arguing that the care rendered was appropriate, and that the case was time barred pursuant to the 2 1/2 year statute of limitations applicable to medical malpractice actions.   

The plaintiff submitted an expert radiologist, who opined that the radiologists had a duty to order follow-up and that the failure to do so constituted a departure from the standard of care. The plaintiff also alleged that the action was timely because defendants continuously treated the plaintiff from 2012 onward, and argued that the action was timely pursuant to the amendment to CPLR 214-a, known as "Lavern's Law." Under Lavern's law, the statute of limitations for cases involving an alleged failure to diagnose cancer starts to run from the date of diagnosis, rather than the date of alleged malpractice.   

We argued that that the defendant was not continuously treating the plaintiff, and that Lavern's Law does not apply. On January 5, 2024, the Court granted defendants' motion on statute of limitations, holding that defendants were not continuously treating the plaintiff from 2012-2017 and Lavern’s Law did not apply. The Court did not reach the medical merits of the case deeming them moot since the case was time barred. The matter was dismissed in its entirety as against our clients.