DEFENDANT RADIOLOGIST WAS ASKED TO EVALUATE A MAMMOGRAM AS A ROUTINE-SCREENING PROCEDURE AND, ACCORDING TO HIS EXPERT, DID SO IN ACCORDANCE WITH ACCEPTED PRACTICES; PLAINTIFF WAS DIAGNOSED WITH BREAST CANCER A YEAR LATER; THE RADIOLOGIST’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED; EXTENSIVE DISSENT (SECOND DEPT).

The Second Department, over an extensive dissent, determined the radiologist’s motion for summary judgment in this medical malpractice (failure to diagnose) action should have been granted. The radiologist was asked to evaluate a “routine-screening” mammogram and indicated there were no suspicious findings. A year later plaintiff was diagnosed with breast cancer and she died a little more than three years after that. From the radiologist’s perspective, the Second Department concluded, there was nothing to indicate that cancer was suspected and that anything more than a routine-screening was prescribed by plaintiff’s physician:

“Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” … . “The question of whether a physician owes a duty to the plaintiff is a question for the court, and is not an appropriate subject for expert opinion” … .

Here, the radiology defendants established, prima facie, that [defendant] Blumberg discharged his duty to the decedent in accordance with accepted practice for radiologists … . Siegel-Goldman, the radiology defendants’ expert, concluded that Blumberg’s interpretation of the April 21, 2010 mammogram was in conformity with accepted practices. …

… [T}he mere fact that the decedent indicated on the mammography worksheet that she experienced some pain in her left breast did not impose a heightened duty of care on Blumberg, who never saw or treated the decedent, and whose only role was to interpret the mammography images and report his findings to the prescribing physician … . Mann v Okere, 2021 NY Slip Op 04014, Second Dept 6-23-21