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NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022
EXHIBIT L
FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018
NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022
FILED: APPELLATE DIVISION - 1ST DEPT 08/05/2022 02:27 PM 2022-02069
NYSCEF DOC. NO. 22 To Be Argued By: RECEIVED NYSCEF: 08/05/2022
CHRISTOPHER J. DELLICARPINI
Time Requested: 15 Minutes
New York County Clerk’s Index No. 805098/2018
New York Supreme Court
APPELLATE DIVISION — FIRST DEPARTMENT
>>>> Case No.
WILFREDO PADILLA, 2022-02069
Plaintiff-Appellant-Respondent,
against
DANIEL LABOW, M.D., MOUNT SINAI HOSPITAL
and MOUNT SINAI HEALTH SYSTEM, INC.,
Defendants,
ARZU BUYUK, M.D., GEORGE LEE, CT,
Defendants-Respondents,
and
MOUNT SINAI WEST,
Defendant-Respondent-Appellant.
BRIEF FOR PLAINTIFF-
APPELLANT-RESPONDENT
WILFREDO PADILLA
SULLIVAN PAPAIN BLOCK MCGRATH
COFFINAS & CANNAVO P.C.
Attorneys for Plaintiff-
Of Counsel: Appellant-Respondent
Wilfredo Padilla
STEPHEN C. GLASSER
120 Broadway, 27th Floor
CHRISTOPHER J. DELLICARPINI
New York, New York 10271
212-732-9000
Dated: August 4, 2022 cdellicarpini@triallaw1.com
Printed on Recycled Paper
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Table of Contents
Table of Cases and Authorities .................................................................................. ii
Preliminary Statement ................................................................................................ 1
Statement of Questions Presented............................................................................ 5
1. Proximate cause ............................................................................................... 5
Statement of Facts ...................................................................................................... 6
Mr. Padilla sued after sustaining life-threatening injuries during
surgery to remove pancreatic cancer that he actually never had ............... 6
Discovery showed that Dr. Labow’s initial plan was to merely
observe Mr. Padilla, believing that it was not likely that he had
cancer ................................................................................................................ 8
Discovery also showed that upon reviewing Dr. Buyuk’s
pathology report, Dr. Labow decided to operate on Mr. Padilla—
with disastrous results ................................................................................... 12
Justice Kelly granted summary judgment, finding that Dr. Buyuk’s
report did not contribute to Dr. Labow’s decision to operate ................ 18
Argument ................................................................................................................... 21
I. Justice Kelly erred in finding no issue of fact on whether Dr.
Buyuk’s negligence proximately caused Mr. Padilla’s injuries .................. 22
Conclusion ................................................................................................................. 28
Printing Specifications .............................................................................................. 29
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Table of Cases and Authorities
Cases
Attia v. Klebanov
192 A.D.3d 650 (2d Dep’t 2021)............................................................................. 24
Bill Birds, Inc. v. Stein Law Firm, P.C.
35 N.Y.3d 173 (2020) ............................................................................................... 22
Burgos v. Rateb
64 A.D.3d 530 (2d Dep’t 2009)............................................................................... 24
Callistro v. Bebbington
94 A.D.3d 408 (1st Dep’t 2012) .............................................................................. 24
Catanese v. Furman
27 A.D.3d 1050 (4th Dep’t 2006) ........................................................................... 24
Davidson v. Conole
79 A.D.2d 43 (3d Dep’t 1981) ................................................................................. 23
John v. New York City Health & Hospitals Corp.
191 A.D.3d 559 (1st Dep’t 2021) ............................................................................ 26
Joynes v. Donatelli
190 A.D.3d 845, 140 N.Y.S.3d 241 (2d Dep’t 2021) ............................................ 26
Mazella v. Beals
27 N.Y.3d 694 (2016) ......................................................................................... 22–23
Megally v. LaPorta
253 A.D.2d 35 (2d Dep’t 1998)............................................................................... 23
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Neyman v. Doshi Diagnostics Imaging Services, Inc.
153 A.D.3d 538 (2d Dep’t 2017)............................................................................. 21
Rivers v. Birnbaum
102 A.D.3d 26 (2d Dep’t 2012)............................................................................... 24
Roca v. Perel
51 A.D.3d 757 (2d Dep’t 2008)............................................................................... 24
Santullo v. Chen
195 A.D.3d 453 (1st Dep’t 2021) ...................................................................... 26–27
Sukhraj v. New York City Health & Hospitals Corp.
106 A.D.3d 809 (2d Dep’t 2013)............................................................................. 24
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Preliminary Statement
In this case of misdiagnosis and unnecessary surgery, Plaintiff-Appellant-
Respondent Wilfredo Padilla appeals from a decision and order of Supreme
Court, New York County (Hon. John Kelley) entered May 6, 2022, partially
granting the motion for summary judgment by Defendants-Respondents Arzu
Buyuk, MD and George Lee, CT and Defendant-Respondent-Appellant Mount
Sinai West (“MSW”).1 As shown below, contrary to Justice Kelley’s findings,
the record shows issues of fact on the role that Dr. Buyuk’s misdiagnosis of
Mr. Padilla’s pathology slides may have played in the decision to operate on
him.
Mr. Padilla sued after sustaining life-threatening injuries during surgery
performed by Defendant Daniel Labow, MD. The complaint alleged that Dr.
Buyuk, a cytopathologist, was negligent in her misdiagnosis of Mr. Padilla’s
pathology slides as “ATYPICAL,” and that this led to multiple unnecessary
surgical procedures for Mr. Padilla. Respondents denied all allegations and
raised several affirmative defenses.
Discovery showed that on September 28, 2016, Mr. Padilla first visited
Dr. Labow for suspicion of pancreatic cancer, given his family history and
blood work. Dr. Labow testified that Mr. Padilla’s condition “was a complex
picture,” and that the imaging “concerned me and certainly warranted further
1 Mr. Padilla does not appeal Justice Kelley’s dismissal of claims against Mr. Lee and
against MSW based on vicarious liability for Mr. Lee.
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investigation.” Accordingly, he sent Mr. Padilla for an endoscopic ultrasound
(“EUS”) and biopsy. Mr. Padilla at deposition was clear that Dr. Labow advised
waiting to decide on surgery until after a biopsy. On October 4, 2016, the GI
Oncology (HPB) Tumor Board considered Mr. Padilla’s case and agreed to wait
for the results of Mr. Padilla’s biopsy.
On October 20, 2016, Mr. Padilla—51 years old at the time—went to
Mount Sinai West Endoscopy for his biopsy, and the initial results did not
suggest cancer. On October 27, 2016, Mr. Padilla’s pathology slides were first
evaluated by CT Lee, who concluded that the sample was “suspicious for Low-
grade pancreatic endocrine tumor.” On October 31, 2016, Mr. Padilla had an
abdominal MRI, the report for which concluded: “Malignancy is considered
unlikely.”
On November 2, 2016, Dr. Buyuk prepared her cytology report for Mr.
Padilla, diagnosing his sample with one word: “Atypical.” The Comments
section of her report, however, appeared to contradict her diagnosis: “The cells
… don’t display significant atypia or mitotic figures.” Dr. Buyuk confirmed at
deposition that her report neither mentioned malignancy nor ruled it out.
On November 8, 2016, the Tumor Board again reviewed Mr. Padilla’s
case and, without Dr. Buyuk’s report, resolved to wait to “Review imaging and
discuss plan of care.” That same day, Dr. Buyuk issued her final report on Mr.
Padilla’s biopsy, adding some further testing results but keeping her diagnosis
of “ATYPICAL.”
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The next day—November 9, 2016—Dr. Labow had Dr. Buyuk’s report,
and after reading it resolved that Mr. Padilla needed surgery. “Obviously I read
the whole report,” he testified, adding: “And my integration of this, it was not
100 percent clear yea or nay as far as pancreas cancer … and so I was—
continued to remain concerned that there was pancreas cancer.” As Mr. Padilla
recalled his last visit with Dr. Labow before surgery: “I remember him
stating—told me I had pancreatic cancer and that I had a tumor. He can
remove the tumor. He would do a splenectomy and that I had cancer. That’s
what they told me from when they did the biopsy.”
On December 2, 2016, Mr. Padilla underwent a “Laparoscopic
converted to open distal pancreatectomy, splenectomy with partial gastrectomy,
adrenalectomy, and repair of intraabdominal vessels intraoperatively.” During
the surgery—perhaps three hours in—Mr. Padilla suffered a cardiac arrest,
requiring ACLS and CPR. Another surgeon had to be called in to assist, and
Mr. Padilla lost an estimated ten liters of blood. In the end, he was “intubated,
but stable.” In the ensuing months, Mr. Padilla underwent two further surgeries
to correct the complications from that surgery.
Respondents moved for summary judgment, relying on expert opinion
to deny negligence and causation. Mr. Padilla did not oppose dismissal as to CT
Lee, but offered expert opinion showing Dr. Buyuk’s negligence and its role in
Mr. Padilla’s injuries. In reply, Respondents asserted that Mr. Padilla failed to
raise an issue of fact as to causation because “Dr. Labow, using all of the
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diagnostic tools available to him, could not rule out cancer in this patient
without surgery.”
Justice Kelly granted the motion, dismissing the claims as to Dr. Buyuk
and Cytotechnologist (“CT”) Lee and as to those claims against MSW as
alleged to be vicariously liable for the individual Respondents. The court
acknowledged that Dr. Labow read Dr. Buyuk’s report before recommending
surgery, but then concluded: “[T]he plaintiff cannot show that any allegedly
incorrect diagnoses or findings in Buyuk’s report caused or contributed to
Labow’s decision to recommend and perform surgery.”
As shown below, Justice Kelly erred in finding that, as a matter of law,
there was no issue of fact on whether Dr. Buyuk’s negligence proximately
caused Mr. Padilla’s injuries.
The mere fact that other persons share some responsibility for the
plaintiff’s harm does not absolve a defendant from liability because there may
be more than one proximate cause of an injury. It is settled law that a
pathologist can be liable to a patient for a misdiagnosis that informs a surgeon’s
decision to operate. And Mr. Padilla’s expert pathologist’s opinion as to
causation was sufficiently specific and grounded in the record as to be neither
conclusory nor speculative. With citation to the record, he showed how Dr.
Buyuk’s report led Dr. Labow to change Mr. Padilla’s course of treatment from
observation to operation. Because the parties presented conflicting medical
expert opinions, summary judgment was improper here.
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Statement of Questions Presented
1. Proximate cause
Mr. Padilla sued for life-threatening injuries sustained during surgery to
remove pancreatic cancer—which, it turned out, he never had. His surgeon
originally intended to merely observe Mr. Padilla, doubting that he had cancer.
But when he saw Dr. Buyuk’s pathology report, which described Mr. Padilla’s
specimen as “atypical,” the surgeon decided instead to operate. Given starkly
conflicting opinions by multiple medical experts, is there an issue of fact as to
whether Dr. Buyuk proximately caused Mr. Padilla’s injuries?
The trial court answered this question in the negative.
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Statement of Facts
Before Dr. Labow read Dr. Buyuk’s pathology report, his plan for Mr.
Padilla was to merely observe. After reading that report, however, he
recommended surgery. Mr. Padilla followed that recommendation, and nearly
paid for doing so with his life. Yet, inexplicably, Justice Kelly could not see
how Dr. Buyuk’s report even contributed to Dr. Labow’s recommendation to
go forward with the surgery, and granted summary judgment.
Mr. Padilla sued after sustaining life-
threatening injuries during surgery to remove
pancreatic cancer that he actually never had
Mr. Padilla sued after suffering life-threatening complications during a
surgery that never should have taken place. His complaint alleged that he was
treated by Dr. Labow as well as Dr. Buyuk and CT Lee at Mount Sinai Hospital
from May 23, 2016, to April 7, 2017; during which he was injured by
Defendants’ departures from good and accepted medical practice. 2 Mr. Padilla
also alleged that Dr. Labow, Dr. Buyuk, and CT Lee were at all relevant times
employees or agents of MSW.3
2 NYSCEF 1 (“Complaint”) at 2–8. Citation to NYSCEF refers to documents in the trial
court record that are not in the Record on Appeal but which this Court, of course, can
take judicial notice of.
3 Complaint at 4–7.
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Defendants denied virtually allegations and raised several affirmative
defenses. MSW admitted only its corporate status, insisted that its employees
and agents “at all times acted in accordance with good and accepted practice,”
and raised six affirmative defenses.4 Answering separately through the same
counsel, Dr. Buyuk and CT Lee each identically pleaded that they “at all times
acted in accordance with good and accepted practice,” and raised the same six
affirmative defenses.5
In his bills of particulars and supplements, Mr. Padilla detailed Dr.
Buyuk’s negligence in misdiagnosing Mr. Padilla’s pathology specimen. He
alleged Dr. Buyuk—and vicariously, MSW—were negligent in several respects,
including (96–98): 6
– negligently interpreting a cytopathology specimen of Mr. Padilla’s
pancreas that was collected on October 20, 2016
– failing to enter into a differential diagnosis, including the very likely
probability of a benign pancreatic mass
– failing to recommend or refer the plaintiff for tissue biopsy, frozen
section biopsy, and/or imaging studies to diagnose plaintiff’s true
condition
– in negligently stating that the cytology specimen was “ATYPICAL”
while also noting that there was no “significant atypia”
4 NYSCEF 12 ¶¶ 5, 9–14.
5 NYSCEF 14 ¶¶ 5, 8–13; NYSCEF 5 ¶¶ 8–13.
6 Parenthetical citations are to the Record on Appeal.
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– failing to recognize that the cytopathology specimen presented
nothing remotely indicative or suspicious of pancreatic cancer
– negligently diagnosing pancreatic acinar cell carcinoma
– negligently failing to conclusively rule out pancreatic cancer as a
diagnosis despite ample evidence indicating a benign pancreatic mass
Mr. Padilla also alleged that the alleged departures “were substantial
factors resulting in severe and devastating permanent physical injuries.” (99.)
He further alleged that Dr. Buyuk’s misdiagnosis led to “Multiple
contraindicated and unnecessary surgical procedures,” including a partial
gastrectomy, subtotal colectomy, and distal pancreatectomy. (100.) He also
alleged that he suffered, among other injuries, gastric perforation and gastric
leak; colonic/mesenteric ischemia; necrotic transverse colon and splenic fixture;
sepsis; peritonitis; and cardiac arrest. (100.) Mr. Padilla, 51 years old at the time
(96), further alleged that he suffered respiratory failure, a coma, and intubation;
as well as weight loss, pain and suffering, and fear of death (101).
Discovery showed that Dr. Labow’s initial
plan was to merely observe Mr. Padilla,
believing that it was not likely that he had
cancer
Discovery entailed the production of thousands of pages of Mr. Padilla’s
medical records, as well as the testimony of Mr. Padilla, Dr. Labow, Dr. Buyuk,
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and CT Lee. Taken together, they show that Dr. Labow decided on surgery as
the best course for Mr. Padilla only after seeing Dr. Buyuk’s pathology report.
Mr. Padilla saw Dr. Labow to discuss surgery as an option to treat his
suspected pancreatic cancer. Mr. Padilla first had pancreatitis in 2007 (174–75),
and that same year had a heart attack that required the placement of stents
(284). In April 2016, based on his family history, he went for cancer screening.
(302.) Tests suggested that he had cancer (356), and he was referred to Dr.
Labow (368).
On September 28, 2016, Dr. Labow first saw Mr. Padilla and
recommended a biopsy before considering surgery. Mr. Padilla’s Mount Sinai
chart recounts his history (4876):
Wilfredo Padilla is a 51 y.o. M who presents to clinic for further
evaluation of pancreatic mass. Pt has h/o panc cancer in family,
so got Ca 19-9 drawn and was elevated so got CT scan which
shows mass around distal pancreas.
Dr. Labow testified that Mr. Padilla’s condition “was a complex picture,”
and that the imaging “concerned me and certainly warranted further
investigation.” (802.) Imaging revealed only a “poorly defined soft tissue
opacification interposed between the stomach and the pancreatic body and tall
and extending around the pancreatic tail to the splenic ilium, Left upper
perinephric space and inferio/inferiolateral perispneic region.” (4878.)
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Accordingly, Dr. Labow sent Mr. Padilla for an endoscopic ultrasound
(“EUS”) and biopsy. (807.) His Assessment and Plan for Mr. Padilla stated
(4878):
Wilfredo Padilla is a 51 y.o. M w/ abdominal / pancreatic mass,
unlikely malignancy
- will discuss at tumor board Tuesday
- Recommend EUS/biopsy +/- MRI
- will contact after tumor board
Mr. Padilla at deposition was clear that Dr. Labow advised waiting to decide on
surgery until after a biopsy (371–72):
Q. Tell me what you recall about the first evaluation with Dr.
Labow.
A. The first evaluation, he basically told me that he wanted the
affiliated doctors to do a biopsy.
Q. What else do you recall?
A. I recall that he said that once I get a biopsy, I come back to
him to get the results of the biopsy.
On October 4, 2016, the GI Oncology (HPB) Tumor Board considered
Mr. Padilla’s case and agreed to wait for the results of the biopsy. In attendance
were Dr. Labow and Samantha Aycart, PA, one of Dr. Labow’s physician
assistants. (4884.) The meeting minutes as to Mr. Padilla state in their entirety
(4882):
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51 M w/ family hx of pancreas cancer (mother/father). For this
reason, a CA 19-09 was drawn and found to be elevated (41 now
26) Subsequent CT imaging showed distal peri-pancreas mass.
Plan: EUS/FNA
On October 20, 2016, Mr. Padilla then went to Mount Sinai West
Endoscopy for his biopsy, and the initial results did not suggest cancer. An
upper endoscopic ultrasound (“EUS”) performed by Edward Lung, MD,
revealed “A mass… in the pancreatic body extending to the pancreatic tail.”
(1241.) Dr. Lung then performed a fine needle aspiration (“FNA”) to obtain
samples for cytology. (1241.) His post-op diagnosis reported “no sign of
significant pathology,” but noted: “An ill-defined mass was identified in the
pancreatic body extending to the pancreatic tail.” (1242.) His recommendation
was to “await cytology results” and consider an MRI. (1241.)
On October 27, 2016, Mr. Padilla’s pathology slides were first evaluated
and considered “suspicious.” CT Lee found the sample “Satisfactory for
evaluation,” and noted “High cellularity” that was “Positive for neoplasm.”
(4881.) He also noted that “the tumor cells are generally small and relatively
uniform,” however, and he concluded that the sample was “suspicious for
Low-grade pancreatic endocrine tumor.” (4881.) At deposition, CT Lee made
clear that he made no determination whether the sample was malignant or
benign. (973.) He also testified that this was his only involvement in Mr.
Padilla’s treatment, and that he never spoke with Dr. Buyuk about this
pathology. (977–78.)
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On October 31, 2016, Mr. Padilla had an abdominal MRI that did not
support a diagnosis of cancer. The report did note (1160):
T2 hypointense rind surrounding the pancreatic tail with delayed
enhancement and mild peripancreatic inflammatory changes,
concerning tor autoimmune pancreatitis. Resolving acute
pancreatitis can have a similar appearance. Correlation with serum
lgG4 levels and serum lipase is recommended.
The report concluded, however: “Malignancy is considered unlikely.” (1160.)
Discovery also showed that upon reviewing
Dr. Buyuk’s pathology report, Dr. Labow
decided to operate on Mr. Padilla—with
disastrous results
On November 2, 2016, Dr. Buyuk prepared her cytology report for Mr.
Padilla, diagnosing his sample with one word: “Atypical.” (1255–56.) She
admitted at deposition that she examined Mr. Padilla’s cells in her role as a
cytopathologist for Mount Sinai. (669–72.) She defined “atypical” in this
context (672):
Q. What does that mean, “atypical”?
A. Atypical is anything what is not typical. It is a category we use
in cytopathology. So when we have even the slightest degree of
abnormality, even very slight cytologic abnormality or
architectural abnormality, we call them abnormal or, you know,
not normal or atypical.
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She further testified that atypical cells appear in 10–15% of her studies, going
as high as 30% in high-risk populations. (678.)
The Comments section of her report, however, appeared to contradict
her diagnosis. She indicated that “The cells … don’t display significant atypia or
mitotic figures.” Her final comment was no less equivocal (1255):
The morphologic features and immunohistochemical studies
support acinar phenotype. If there is a distinct mass, the overall
features are suspicious to acinar cell carcinoma. However, normal
acinar tissue can yield numerous glandular/acinar structures
mimicking carcinoma. Clinical and radiologic correlation
recommended.
Dr. Buyuk confirmed at deposition that her report neither mentioned
malignancy nor ruled it out. (738, 752.)
Dr. Labow saw Mr. Padilla that same day, though he evidently did not
yet have Dr. Buyuk’s report. He noted the results of the MRI, but his
Assessment and Plan indicated that he had not yet seen the cytology and
advised a wait-and-see approach (1065):
Wilfredo Padilla is a 51 y.o. M w/ abdominal/pancreatic mass,
unlikely malignancy
- will await path results and likely follow up in 4-6 months.
On November 8, 2016, Dr. Buyuk issued her final report on Mr.
Padilla’s biopsy. (1257–58.) An addendum noted “additional
immunohistochemical staining” that came back negative. (1258.) Her diagnosis
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of “ATYPICAL” and her comments to the contrary, however, remained
unchanged from her initial report. (1257.)
That same day, the Tumor Board again considered Mr. Padilla and
agreed to wait for Dr. Buyuk’s report—which, again, evidently had not been
received. The board recounted Mr. Padilla’s treatment to date and specially
noted: “Path pending. MRI obtained to further characterize mass.” The board’s
conclusion was to “Review imaging and discuss plan of care. POC: distal
pancreatectomy.”
The next day, however—November 9, 2016—Dr. Labow had Dr.
Buyuk’s report, and after reading it resolved that Mr. Padilla needed surgery.
Dr. Labow testified that he considered Dr. Buyuk’s report along with all the
other data in Mr. Padilla’s chart to determine a course of treatment (813):
Q. What did you conclude from reading this report?
A. Obviously I read the whole report….
The job of the pathologist is to alert of an abnormality that they
see.
And my integration of this, it was not 100 percent clear yea or nay
as far as pancreas cancer, and there could be, certainly, variability
considering this is a fine needle aspirate and not a hunk of tissue,
and so I was—continued to remain concerned that there was
pancreas cancer that was quite subtle that could have been going
on.
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Later in his deposition, Dr. Labow clarified that he excluded nothing from his
consideration of treatment options for Mr. Padilla (849):
Q. The cytopathology report that we had previously discussed was
that a conclusive diagnosis of cancer in that report?
A. If I could answer. I think I answered the question previously
that I would never rely on one single piece of data to operate on a
patient.
And so I understand the concept of picking one piece of
information that might be equivocal or not. But the argument of,
well, you saw a mass—there was a mass described on endoscopic
ultrasound, would I rely 100 percent on that? No. As the clinician,
I have to take all of the data and then make a clinical decision in
conjunction with the patient.
And so to answer your question, that biopsy was concerning, but
was not the only piece of data that I considered.
The office note from that day even uses Dr. Buyuk’s terminology (1017):
Returns to clinic following EUS/FNA and to discuss surgery.
Path suggestive of possible acinar cell carcinoma. [The] case was
presented at our multi-discplinary [sic] conference and consensus
was to proceed with surgical resection. Remains asymptomatic.
Denies abdominal pain, nausea/vomiting, fever/chills.
The Assessment and Plan indicated that, despite the results of the MRI, Mr.
Padilla would undergo surgery to remove “acinar cell carcinoma” (1018):
Wilfredo Padilla is a 51 y.o, M w/ acinar cell carcinoma of the
distal body/tail of the pancreas. No evidence of metastatic disease
on MRI abdomen. Will proceed with lap distal pancreatectomy
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and splenectomy. He knows to call the office if any questions or
concerns.
Mr. Padilla testified that after the biopsy he returned to Dr. Labow’s
office, and that only then did Dr. Labow tell him that he would have surgery
(388):
Q. Did you express to anyone at Mount Sinai West that you
wanted to undergo surgery at that time?
A. At what time?
Q. At the time you were at Mount Sinai West. Did you express to
anyone after the endoscopy that it was your desire to have surgery
at some point?
A. Yes. When Dr. Labow recommended that I have surgery.
Defense counsel confronted Mr. Padilla with records indicating that he had met
with PA Aycart, but Mr. Padilla stood fast in his recollection that he discussed
surgery with his surgeon (400):
Q. If I told you that the record reflect that you re-presented to
doctor Labow’s office and had an evaluation with her, does that
refresh your recollection?
….
A. Well, it does and it doesn’t.
Q. How is it that it refreshes your recollection?
A. I remember talking with her and stuff like that. I remember
him stating—told me I had pancreatic cancer and that I had a
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tumor. He can remove the tumor. He would do a splenectomy
and that I had cancer. That’s what they told me from when they
did the biopsy.
Dr. Labow also testified to a conversation with Mr. Padilla about surgery after
receiving Dr. Buyuk’s report (834):
Q. What was your next course of action following the
cytopathology report as to Mr. Padilla?
A. So I remember having a conversation with Mr. Padilla. We
now had imagine, by a CAT scan and an MRI. We had an
endoscopic ultrasound report. We had a—obviously the history,
family history, and—and a clinical picture with his diabetes,
chronic pancreatitis, and the biopsies, and we have to then—as
well as the tumor board presentation. We had a conversation
about the options which are to observe versus operate.
On December 2, 2016, Mr. Padilla underwent surgery to remove the
suspected cancer, with disastrous results. Dr. Labow performed what he later
described as “Laparoscopic converted to open distal pancreatectomy,
splenectomy with partial gastrectomy, adrenalectomy, and repair of
intraabdominal vessels intraoperatively.” (1150.) During the surgery—perhaps
three hours in—Mr. Padilla suffered a cardiac arrest. (1151.) Another surgeon
had to be called in to assist, (1151), and Mr. Padilla lost an estimated ten liters
of blood (1150). In the end, he was “intubated, but stable.” (1151.)
Mr. Padilla suffered the consequences of this surgery for months. Five
days after his first surgery, he underwent surgery to repair a gastric leak. (1062.)
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Eight months later, on July 13, 2017, Mr. Padilla underwent a “reversal of end
ileostomy,” the report of which explains that “he was emergently taken back a
number of months ago and had a diverting end ileostomy with a long
Hartman’s pouch.” (1054.)7
Justice Kelly granted summary judgment,
finding that Dr. Buyuk’s report did not
contribute to Dr. Labow’s decision to operate
Respondents and CT Lee moved for summary judgment “dismissing the
complaint in its entirety,” relying on expert opinion to deny negligence and
causation (34.) They pointed out that “Though Mr. Lee noted his findings, the
final diagnosis was made by Dr. Buyuk … and she authored the cytopathology
report.” (42.) Their expert opined that Dr. Buyuk’s diagnosis of “atypical” was
“reasonable … as the sample demonstrated increased cellularity.” (43–44.)
They also denied causation, arguing that “Dr. Labow … did not rely solely on
the pathology results in this case in making the decision to operate” (48), but
rather “integrated the findings with the information he previously had” (49).
Mr. Padilla did not oppose dismissal as to CT Lee (4890), but did offer
expert opinion showing Dr. Buyuk’s negligence and its role in contributing to
7 In general terms, an “ileostomy” is an opening in the abdominal wall that is made during
surgery, in which the end of the ileum (the lowest part of the small intestine) is brought
through this opening to form a stoma, usually on the lower right side of the abdomen.
Since the ileostomy has no sphincter muscles, Mr. Padilla needed to wear a pouch to
collect the stool.
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Dr. Labow’s decision to operate, which caused Mr. Padilla’s injuries. His expert
cytopathologist examined Mr. Padilla’s slides and affirmed “that there were no
abnormal or atypical findings.” (4929.) The expert also opined that Dr. Buyuk
departed from the standard of care by reporting not just on her interpretation
of the slides but also “extraneous clinical data.” (4930.) The expert also opined
that “Dr. Buyuk’s departures from good and accepted practice proximately
caused Mr. Padilla’s injuries” by leading Dr. Labow to change his plan from
observation and waiting to surgery. (4932–33.)
Mr. Padilla also submitted an affirmation from an expert surgeon, who
also explained Dr. Buyuk’s contribution to Mr. Padilla’s injuries (4947):
….From September 29, 2016 through November 2, 2016, Dr.
Labow consistently, and accurately, noted that malignancy was
unlikely…. However, after receipt of the FNA report, by
November 9, 2016, Dr. Labow’s office documented that Mr.
Padilla had acinar cell carcinoma, and that they would proceed
with the pancreatectomy and splenectomy surgery.
In reply, Respondents asserted that Mr. Padilla’s expert’s review of the
actual slides supposedly was “insufficient to raise a triable issue of fact” (5010),
and that Mr. Padilla failed to raise an issue of fact as to causation because “Dr.
Labow, using all of the diagnostic tools available to him, could not rule out
cancer in this patient without surgery” (5012).
Justice Kelly granted the motion, dismissing as to not CT Lee and Dr.
Buyuk as well as to MSW as alleged to be vicariously liable for the individual
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Respondents. He found an issue of fact as to Dr. Buyuk’s departure from the
standard of care (21-22):
As to the claims asserted against Buyuk, the plaintiffs expert
raised a triable issue of fact as to whether she departed from good
and accepted practice by incorrectly noting the presence of
hypercellularity in the specimen, which the expert opined was
absent, and incorrectly diagnosing the specimen as atypical, which
the expert opined was an incorrect diagnosis in light of
appearance of the cells on the slide and Buyuk’s own statement
that the cells themselves did not appear atypical.
Justice Kelly then found, however, that Mr. Padilla “failed to raise a
triable issue of fact as to whether Buyuk’s diagnosis of atypicality, or even her
expression of a concern for the presence of acinar carcinoma in light of the
presence of a mass, caused Labow to recommend or perform surgery.” (22.)
Justice Kelly conceded that Dr. Labow read Dr. Buyuk’s report before
recommending surgery, but then concluded that “it was his own determination
that only surgery definitively could resolve the issue of whether the plaintiff’s
pancreatic mass was or was not cancerous.” (22.)
Justice Kelley’s decision and order was dated on May 4, 2022. (23.) Mr.
Preview
FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 EXHIBIT L FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 FILED: APPELLATE DIVISION - 1ST DEPT 08/05/2022 02:27 PM 2022-02069 NYSCEF DOC. NO. 22 To Be Argued By: RECEIVED NYSCEF: 08/05/2022 CHRISTOPHER J. DELLICARPINI Time Requested: 15 Minutes New York County Clerk’s Index No. 805098/2018 New York Supreme Court APPELLATE DIVISION — FIRST DEPARTMENT >>>> Case No. WILFREDO PADILLA, 2022-02069 Plaintiff-Appellant-Respondent, against DANIEL LABOW, M.D., MOUNT SINAI HOSPITAL and MOUNT SINAI HEALTH SYSTEM, INC., Defendants, ARZU BUYUK, M.D., GEORGE LEE, CT, Defendants-Respondents, and MOUNT SINAI WEST, Defendant-Respondent-Appellant. BRIEF FOR PLAINTIFF- APPELLANT-RESPONDENT WILFREDO PADILLA SULLIVAN PAPAIN BLOCK MCGRATH COFFINAS & CANNAVO P.C. Attorneys for Plaintiff- Of Counsel: Appellant-Respondent Wilfredo Padilla STEPHEN C. GLASSER 120 Broadway, 27th Floor CHRISTOPHER J. DELLICARPINI New York, New York 10271 212-732-9000 Dated: August 4, 2022 cdellicarpini@triallaw1.com Printed on Recycled Paper FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 Table of Contents Table of Cases and Authorities .................................................................................. ii Preliminary Statement ................................................................................................ 1 Statement of Questions Presented............................................................................ 5 1. Proximate cause ............................................................................................... 5 Statement of Facts ...................................................................................................... 6 Mr. Padilla sued after sustaining life-threatening injuries during surgery to remove pancreatic cancer that he actually never had ............... 6 Discovery showed that Dr. Labow’s initial plan was to merely observe Mr. Padilla, believing that it was not likely that he had cancer ................................................................................................................ 8 Discovery also showed that upon reviewing Dr. Buyuk’s pathology report, Dr. Labow decided to operate on Mr. Padilla— with disastrous results ................................................................................... 12 Justice Kelly granted summary judgment, finding that Dr. Buyuk’s report did not contribute to Dr. Labow’s decision to operate ................ 18 Argument ................................................................................................................... 21 I. Justice Kelly erred in finding no issue of fact on whether Dr. Buyuk’s negligence proximately caused Mr. Padilla’s injuries .................. 22 Conclusion ................................................................................................................. 28 Printing Specifications .............................................................................................. 29 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 Table of Cases and Authorities Cases Attia v. Klebanov 192 A.D.3d 650 (2d Dep’t 2021)............................................................................. 24 Bill Birds, Inc. v. Stein Law Firm, P.C. 35 N.Y.3d 173 (2020) ............................................................................................... 22 Burgos v. Rateb 64 A.D.3d 530 (2d Dep’t 2009)............................................................................... 24 Callistro v. Bebbington 94 A.D.3d 408 (1st Dep’t 2012) .............................................................................. 24 Catanese v. Furman 27 A.D.3d 1050 (4th Dep’t 2006) ........................................................................... 24 Davidson v. Conole 79 A.D.2d 43 (3d Dep’t 1981) ................................................................................. 23 John v. New York City Health & Hospitals Corp. 191 A.D.3d 559 (1st Dep’t 2021) ............................................................................ 26 Joynes v. Donatelli 190 A.D.3d 845, 140 N.Y.S.3d 241 (2d Dep’t 2021) ............................................ 26 Mazella v. Beals 27 N.Y.3d 694 (2016) ......................................................................................... 22–23 Megally v. LaPorta 253 A.D.2d 35 (2d Dep’t 1998)............................................................................... 23 ii FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 Neyman v. Doshi Diagnostics Imaging Services, Inc. 153 A.D.3d 538 (2d Dep’t 2017)............................................................................. 21 Rivers v. Birnbaum 102 A.D.3d 26 (2d Dep’t 2012)............................................................................... 24 Roca v. Perel 51 A.D.3d 757 (2d Dep’t 2008)............................................................................... 24 Santullo v. Chen 195 A.D.3d 453 (1st Dep’t 2021) ...................................................................... 26–27 Sukhraj v. New York City Health & Hospitals Corp. 106 A.D.3d 809 (2d Dep’t 2013)............................................................................. 24 iii FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 Preliminary Statement In this case of misdiagnosis and unnecessary surgery, Plaintiff-Appellant- Respondent Wilfredo Padilla appeals from a decision and order of Supreme Court, New York County (Hon. John Kelley) entered May 6, 2022, partially granting the motion for summary judgment by Defendants-Respondents Arzu Buyuk, MD and George Lee, CT and Defendant-Respondent-Appellant Mount Sinai West (“MSW”).1 As shown below, contrary to Justice Kelley’s findings, the record shows issues of fact on the role that Dr. Buyuk’s misdiagnosis of Mr. Padilla’s pathology slides may have played in the decision to operate on him. Mr. Padilla sued after sustaining life-threatening injuries during surgery performed by Defendant Daniel Labow, MD. The complaint alleged that Dr. Buyuk, a cytopathologist, was negligent in her misdiagnosis of Mr. Padilla’s pathology slides as “ATYPICAL,” and that this led to multiple unnecessary surgical procedures for Mr. Padilla. Respondents denied all allegations and raised several affirmative defenses. Discovery showed that on September 28, 2016, Mr. Padilla first visited Dr. Labow for suspicion of pancreatic cancer, given his family history and blood work. Dr. Labow testified that Mr. Padilla’s condition “was a complex picture,” and that the imaging “concerned me and certainly warranted further 1 Mr. Padilla does not appeal Justice Kelley’s dismissal of claims against Mr. Lee and against MSW based on vicarious liability for Mr. Lee. 1 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 investigation.” Accordingly, he sent Mr. Padilla for an endoscopic ultrasound (“EUS”) and biopsy. Mr. Padilla at deposition was clear that Dr. Labow advised waiting to decide on surgery until after a biopsy. On October 4, 2016, the GI Oncology (HPB) Tumor Board considered Mr. Padilla’s case and agreed to wait for the results of Mr. Padilla’s biopsy. On October 20, 2016, Mr. Padilla—51 years old at the time—went to Mount Sinai West Endoscopy for his biopsy, and the initial results did not suggest cancer. On October 27, 2016, Mr. Padilla’s pathology slides were first evaluated by CT Lee, who concluded that the sample was “suspicious for Low- grade pancreatic endocrine tumor.” On October 31, 2016, Mr. Padilla had an abdominal MRI, the report for which concluded: “Malignancy is considered unlikely.” On November 2, 2016, Dr. Buyuk prepared her cytology report for Mr. Padilla, diagnosing his sample with one word: “Atypical.” The Comments section of her report, however, appeared to contradict her diagnosis: “The cells … don’t display significant atypia or mitotic figures.” Dr. Buyuk confirmed at deposition that her report neither mentioned malignancy nor ruled it out. On November 8, 2016, the Tumor Board again reviewed Mr. Padilla’s case and, without Dr. Buyuk’s report, resolved to wait to “Review imaging and discuss plan of care.” That same day, Dr. Buyuk issued her final report on Mr. Padilla’s biopsy, adding some further testing results but keeping her diagnosis of “ATYPICAL.” 2 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 The next day—November 9, 2016—Dr. Labow had Dr. Buyuk’s report, and after reading it resolved that Mr. Padilla needed surgery. “Obviously I read the whole report,” he testified, adding: “And my integration of this, it was not 100 percent clear yea or nay as far as pancreas cancer … and so I was— continued to remain concerned that there was pancreas cancer.” As Mr. Padilla recalled his last visit with Dr. Labow before surgery: “I remember him stating—told me I had pancreatic cancer and that I had a tumor. He can remove the tumor. He would do a splenectomy and that I had cancer. That’s what they told me from when they did the biopsy.” On December 2, 2016, Mr. Padilla underwent a “Laparoscopic converted to open distal pancreatectomy, splenectomy with partial gastrectomy, adrenalectomy, and repair of intraabdominal vessels intraoperatively.” During the surgery—perhaps three hours in—Mr. Padilla suffered a cardiac arrest, requiring ACLS and CPR. Another surgeon had to be called in to assist, and Mr. Padilla lost an estimated ten liters of blood. In the end, he was “intubated, but stable.” In the ensuing months, Mr. Padilla underwent two further surgeries to correct the complications from that surgery. Respondents moved for summary judgment, relying on expert opinion to deny negligence and causation. Mr. Padilla did not oppose dismissal as to CT Lee, but offered expert opinion showing Dr. Buyuk’s negligence and its role in Mr. Padilla’s injuries. In reply, Respondents asserted that Mr. Padilla failed to raise an issue of fact as to causation because “Dr. Labow, using all of the 3 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 diagnostic tools available to him, could not rule out cancer in this patient without surgery.” Justice Kelly granted the motion, dismissing the claims as to Dr. Buyuk and Cytotechnologist (“CT”) Lee and as to those claims against MSW as alleged to be vicariously liable for the individual Respondents. The court acknowledged that Dr. Labow read Dr. Buyuk’s report before recommending surgery, but then concluded: “[T]he plaintiff cannot show that any allegedly incorrect diagnoses or findings in Buyuk’s report caused or contributed to Labow’s decision to recommend and perform surgery.” As shown below, Justice Kelly erred in finding that, as a matter of law, there was no issue of fact on whether Dr. Buyuk’s negligence proximately caused Mr. Padilla’s injuries. The mere fact that other persons share some responsibility for the plaintiff’s harm does not absolve a defendant from liability because there may be more than one proximate cause of an injury. It is settled law that a pathologist can be liable to a patient for a misdiagnosis that informs a surgeon’s decision to operate. And Mr. Padilla’s expert pathologist’s opinion as to causation was sufficiently specific and grounded in the record as to be neither conclusory nor speculative. With citation to the record, he showed how Dr. Buyuk’s report led Dr. Labow to change Mr. Padilla’s course of treatment from observation to operation. Because the parties presented conflicting medical expert opinions, summary judgment was improper here. 4 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 Statement of Questions Presented 1. Proximate cause Mr. Padilla sued for life-threatening injuries sustained during surgery to remove pancreatic cancer—which, it turned out, he never had. His surgeon originally intended to merely observe Mr. Padilla, doubting that he had cancer. But when he saw Dr. Buyuk’s pathology report, which described Mr. Padilla’s specimen as “atypical,” the surgeon decided instead to operate. Given starkly conflicting opinions by multiple medical experts, is there an issue of fact as to whether Dr. Buyuk proximately caused Mr. Padilla’s injuries? The trial court answered this question in the negative. 5 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 Statement of Facts Before Dr. Labow read Dr. Buyuk’s pathology report, his plan for Mr. Padilla was to merely observe. After reading that report, however, he recommended surgery. Mr. Padilla followed that recommendation, and nearly paid for doing so with his life. Yet, inexplicably, Justice Kelly could not see how Dr. Buyuk’s report even contributed to Dr. Labow’s recommendation to go forward with the surgery, and granted summary judgment. Mr. Padilla sued after sustaining life- threatening injuries during surgery to remove pancreatic cancer that he actually never had Mr. Padilla sued after suffering life-threatening complications during a surgery that never should have taken place. His complaint alleged that he was treated by Dr. Labow as well as Dr. Buyuk and CT Lee at Mount Sinai Hospital from May 23, 2016, to April 7, 2017; during which he was injured by Defendants’ departures from good and accepted medical practice. 2 Mr. Padilla also alleged that Dr. Labow, Dr. Buyuk, and CT Lee were at all relevant times employees or agents of MSW.3 2 NYSCEF 1 (“Complaint”) at 2–8. Citation to NYSCEF refers to documents in the trial court record that are not in the Record on Appeal but which this Court, of course, can take judicial notice of. 3 Complaint at 4–7. 6 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 Defendants denied virtually allegations and raised several affirmative defenses. MSW admitted only its corporate status, insisted that its employees and agents “at all times acted in accordance with good and accepted practice,” and raised six affirmative defenses.4 Answering separately through the same counsel, Dr. Buyuk and CT Lee each identically pleaded that they “at all times acted in accordance with good and accepted practice,” and raised the same six affirmative defenses.5 In his bills of particulars and supplements, Mr. Padilla detailed Dr. Buyuk’s negligence in misdiagnosing Mr. Padilla’s pathology specimen. He alleged Dr. Buyuk—and vicariously, MSW—were negligent in several respects, including (96–98): 6 – negligently interpreting a cytopathology specimen of Mr. Padilla’s pancreas that was collected on October 20, 2016 – failing to enter into a differential diagnosis, including the very likely probability of a benign pancreatic mass – failing to recommend or refer the plaintiff for tissue biopsy, frozen section biopsy, and/or imaging studies to diagnose plaintiff’s true condition – in negligently stating that the cytology specimen was “ATYPICAL” while also noting that there was no “significant atypia” 4 NYSCEF 12 ¶¶ 5, 9–14. 5 NYSCEF 14 ¶¶ 5, 8–13; NYSCEF 5 ¶¶ 8–13. 6 Parenthetical citations are to the Record on Appeal. 7 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 – failing to recognize that the cytopathology specimen presented nothing remotely indicative or suspicious of pancreatic cancer – negligently diagnosing pancreatic acinar cell carcinoma – negligently failing to conclusively rule out pancreatic cancer as a diagnosis despite ample evidence indicating a benign pancreatic mass Mr. Padilla also alleged that the alleged departures “were substantial factors resulting in severe and devastating permanent physical injuries.” (99.) He further alleged that Dr. Buyuk’s misdiagnosis led to “Multiple contraindicated and unnecessary surgical procedures,” including a partial gastrectomy, subtotal colectomy, and distal pancreatectomy. (100.) He also alleged that he suffered, among other injuries, gastric perforation and gastric leak; colonic/mesenteric ischemia; necrotic transverse colon and splenic fixture; sepsis; peritonitis; and cardiac arrest. (100.) Mr. Padilla, 51 years old at the time (96), further alleged that he suffered respiratory failure, a coma, and intubation; as well as weight loss, pain and suffering, and fear of death (101). Discovery showed that Dr. Labow’s initial plan was to merely observe Mr. Padilla, believing that it was not likely that he had cancer Discovery entailed the production of thousands of pages of Mr. Padilla’s medical records, as well as the testimony of Mr. Padilla, Dr. Labow, Dr. Buyuk, 8 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 and CT Lee. Taken together, they show that Dr. Labow decided on surgery as the best course for Mr. Padilla only after seeing Dr. Buyuk’s pathology report. Mr. Padilla saw Dr. Labow to discuss surgery as an option to treat his suspected pancreatic cancer. Mr. Padilla first had pancreatitis in 2007 (174–75), and that same year had a heart attack that required the placement of stents (284). In April 2016, based on his family history, he went for cancer screening. (302.) Tests suggested that he had cancer (356), and he was referred to Dr. Labow (368). On September 28, 2016, Dr. Labow first saw Mr. Padilla and recommended a biopsy before considering surgery. Mr. Padilla’s Mount Sinai chart recounts his history (4876): Wilfredo Padilla is a 51 y.o. M who presents to clinic for further evaluation of pancreatic mass. Pt has h/o panc cancer in family, so got Ca 19-9 drawn and was elevated so got CT scan which shows mass around distal pancreas. Dr. Labow testified that Mr. Padilla’s condition “was a complex picture,” and that the imaging “concerned me and certainly warranted further investigation.” (802.) Imaging revealed only a “poorly defined soft tissue opacification interposed between the stomach and the pancreatic body and tall and extending around the pancreatic tail to the splenic ilium, Left upper perinephric space and inferio/inferiolateral perispneic region.” (4878.) 9 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 Accordingly, Dr. Labow sent Mr. Padilla for an endoscopic ultrasound (“EUS”) and biopsy. (807.) His Assessment and Plan for Mr. Padilla stated (4878): Wilfredo Padilla is a 51 y.o. M w/ abdominal / pancreatic mass, unlikely malignancy - will discuss at tumor board Tuesday - Recommend EUS/biopsy +/- MRI - will contact after tumor board Mr. Padilla at deposition was clear that Dr. Labow advised waiting to decide on surgery until after a biopsy (371–72): Q. Tell me what you recall about the first evaluation with Dr. Labow. A. The first evaluation, he basically told me that he wanted the affiliated doctors to do a biopsy. Q. What else do you recall? A. I recall that he said that once I get a biopsy, I come back to him to get the results of the biopsy. On October 4, 2016, the GI Oncology (HPB) Tumor Board considered Mr. Padilla’s case and agreed to wait for the results of the biopsy. In attendance were Dr. Labow and Samantha Aycart, PA, one of Dr. Labow’s physician assistants. (4884.) The meeting minutes as to Mr. Padilla state in their entirety (4882): 10 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 51 M w/ family hx of pancreas cancer (mother/father). For this reason, a CA 19-09 was drawn and found to be elevated (41 now 26) Subsequent CT imaging showed distal peri-pancreas mass. Plan: EUS/FNA On October 20, 2016, Mr. Padilla then went to Mount Sinai West Endoscopy for his biopsy, and the initial results did not suggest cancer. An upper endoscopic ultrasound (“EUS”) performed by Edward Lung, MD, revealed “A mass… in the pancreatic body extending to the pancreatic tail.” (1241.) Dr. Lung then performed a fine needle aspiration (“FNA”) to obtain samples for cytology. (1241.) His post-op diagnosis reported “no sign of significant pathology,” but noted: “An ill-defined mass was identified in the pancreatic body extending to the pancreatic tail.” (1242.) His recommendation was to “await cytology results” and consider an MRI. (1241.) On October 27, 2016, Mr. Padilla’s pathology slides were first evaluated and considered “suspicious.” CT Lee found the sample “Satisfactory for evaluation,” and noted “High cellularity” that was “Positive for neoplasm.” (4881.) He also noted that “the tumor cells are generally small and relatively uniform,” however, and he concluded that the sample was “suspicious for Low-grade pancreatic endocrine tumor.” (4881.) At deposition, CT Lee made clear that he made no determination whether the sample was malignant or benign. (973.) He also testified that this was his only involvement in Mr. Padilla’s treatment, and that he never spoke with Dr. Buyuk about this pathology. (977–78.) 11 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 On October 31, 2016, Mr. Padilla had an abdominal MRI that did not support a diagnosis of cancer. The report did note (1160): T2 hypointense rind surrounding the pancreatic tail with delayed enhancement and mild peripancreatic inflammatory changes, concerning tor autoimmune pancreatitis. Resolving acute pancreatitis can have a similar appearance. Correlation with serum lgG4 levels and serum lipase is recommended. The report concluded, however: “Malignancy is considered unlikely.” (1160.) Discovery also showed that upon reviewing Dr. Buyuk’s pathology report, Dr. Labow decided to operate on Mr. Padilla—with disastrous results On November 2, 2016, Dr. Buyuk prepared her cytology report for Mr. Padilla, diagnosing his sample with one word: “Atypical.” (1255–56.) She admitted at deposition that she examined Mr. Padilla’s cells in her role as a cytopathologist for Mount Sinai. (669–72.) She defined “atypical” in this context (672): Q. What does that mean, “atypical”? A. Atypical is anything what is not typical. It is a category we use in cytopathology. So when we have even the slightest degree of abnormality, even very slight cytologic abnormality or architectural abnormality, we call them abnormal or, you know, not normal or atypical. 12 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 She further testified that atypical cells appear in 10–15% of her studies, going as high as 30% in high-risk populations. (678.) The Comments section of her report, however, appeared to contradict her diagnosis. She indicated that “The cells … don’t display significant atypia or mitotic figures.” Her final comment was no less equivocal (1255): The morphologic features and immunohistochemical studies support acinar phenotype. If there is a distinct mass, the overall features are suspicious to acinar cell carcinoma. However, normal acinar tissue can yield numerous glandular/acinar structures mimicking carcinoma. Clinical and radiologic correlation recommended. Dr. Buyuk confirmed at deposition that her report neither mentioned malignancy nor ruled it out. (738, 752.) Dr. Labow saw Mr. Padilla that same day, though he evidently did not yet have Dr. Buyuk’s report. He noted the results of the MRI, but his Assessment and Plan indicated that he had not yet seen the cytology and advised a wait-and-see approach (1065): Wilfredo Padilla is a 51 y.o. M w/ abdominal/pancreatic mass, unlikely malignancy - will await path results and likely follow up in 4-6 months. On November 8, 2016, Dr. Buyuk issued her final report on Mr. Padilla’s biopsy. (1257–58.) An addendum noted “additional immunohistochemical staining” that came back negative. (1258.) Her diagnosis 13 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 of “ATYPICAL” and her comments to the contrary, however, remained unchanged from her initial report. (1257.) That same day, the Tumor Board again considered Mr. Padilla and agreed to wait for Dr. Buyuk’s report—which, again, evidently had not been received. The board recounted Mr. Padilla’s treatment to date and specially noted: “Path pending. MRI obtained to further characterize mass.” The board’s conclusion was to “Review imaging and discuss plan of care. POC: distal pancreatectomy.” The next day, however—November 9, 2016—Dr. Labow had Dr. Buyuk’s report, and after reading it resolved that Mr. Padilla needed surgery. Dr. Labow testified that he considered Dr. Buyuk’s report along with all the other data in Mr. Padilla’s chart to determine a course of treatment (813): Q. What did you conclude from reading this report? A. Obviously I read the whole report…. The job of the pathologist is to alert of an abnormality that they see. And my integration of this, it was not 100 percent clear yea or nay as far as pancreas cancer, and there could be, certainly, variability considering this is a fine needle aspirate and not a hunk of tissue, and so I was—continued to remain concerned that there was pancreas cancer that was quite subtle that could have been going on. 14 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 Later in his deposition, Dr. Labow clarified that he excluded nothing from his consideration of treatment options for Mr. Padilla (849): Q. The cytopathology report that we had previously discussed was that a conclusive diagnosis of cancer in that report? A. If I could answer. I think I answered the question previously that I would never rely on one single piece of data to operate on a patient. And so I understand the concept of picking one piece of information that might be equivocal or not. But the argument of, well, you saw a mass—there was a mass described on endoscopic ultrasound, would I rely 100 percent on that? No. As the clinician, I have to take all of the data and then make a clinical decision in conjunction with the patient. And so to answer your question, that biopsy was concerning, but was not the only piece of data that I considered. The office note from that day even uses Dr. Buyuk’s terminology (1017): Returns to clinic following EUS/FNA and to discuss surgery. Path suggestive of possible acinar cell carcinoma. [The] case was presented at our multi-discplinary [sic] conference and consensus was to proceed with surgical resection. Remains asymptomatic. Denies abdominal pain, nausea/vomiting, fever/chills. The Assessment and Plan indicated that, despite the results of the MRI, Mr. Padilla would undergo surgery to remove “acinar cell carcinoma” (1018): Wilfredo Padilla is a 51 y.o, M w/ acinar cell carcinoma of the distal body/tail of the pancreas. No evidence of metastatic disease on MRI abdomen. Will proceed with lap distal pancreatectomy 15 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 and splenectomy. He knows to call the office if any questions or concerns. Mr. Padilla testified that after the biopsy he returned to Dr. Labow’s office, and that only then did Dr. Labow tell him that he would have surgery (388): Q. Did you express to anyone at Mount Sinai West that you wanted to undergo surgery at that time? A. At what time? Q. At the time you were at Mount Sinai West. Did you express to anyone after the endoscopy that it was your desire to have surgery at some point? A. Yes. When Dr. Labow recommended that I have surgery. Defense counsel confronted Mr. Padilla with records indicating that he had met with PA Aycart, but Mr. Padilla stood fast in his recollection that he discussed surgery with his surgeon (400): Q. If I told you that the record reflect that you re-presented to doctor Labow’s office and had an evaluation with her, does that refresh your recollection? …. A. Well, it does and it doesn’t. Q. How is it that it refreshes your recollection? A. I remember talking with her and stuff like that. I remember him stating—told me I had pancreatic cancer and that I had a 16 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 tumor. He can remove the tumor. He would do a splenectomy and that I had cancer. That’s what they told me from when they did the biopsy. Dr. Labow also testified to a conversation with Mr. Padilla about surgery after receiving Dr. Buyuk’s report (834): Q. What was your next course of action following the cytopathology report as to Mr. Padilla? A. So I remember having a conversation with Mr. Padilla. We now had imagine, by a CAT scan and an MRI. We had an endoscopic ultrasound report. We had a—obviously the history, family history, and—and a clinical picture with his diabetes, chronic pancreatitis, and the biopsies, and we have to then—as well as the tumor board presentation. We had a conversation about the options which are to observe versus operate. On December 2, 2016, Mr. Padilla underwent surgery to remove the suspected cancer, with disastrous results. Dr. Labow performed what he later described as “Laparoscopic converted to open distal pancreatectomy, splenectomy with partial gastrectomy, adrenalectomy, and repair of intraabdominal vessels intraoperatively.” (1150.) During the surgery—perhaps three hours in—Mr. Padilla suffered a cardiac arrest. (1151.) Another surgeon had to be called in to assist, (1151), and Mr. Padilla lost an estimated ten liters of blood (1150). In the end, he was “intubated, but stable.” (1151.) Mr. Padilla suffered the consequences of this surgery for months. Five days after his first surgery, he underwent surgery to repair a gastric leak. (1062.) 17 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 Eight months later, on July 13, 2017, Mr. Padilla underwent a “reversal of end ileostomy,” the report of which explains that “he was emergently taken back a number of months ago and had a diverting end ileostomy with a long Hartman’s pouch.” (1054.)7 Justice Kelly granted summary judgment, finding that Dr. Buyuk’s report did not contribute to Dr. Labow’s decision to operate Respondents and CT Lee moved for summary judgment “dismissing the complaint in its entirety,” relying on expert opinion to deny negligence and causation (34.) They pointed out that “Though Mr. Lee noted his findings, the final diagnosis was made by Dr. Buyuk … and she authored the cytopathology report.” (42.) Their expert opined that Dr. Buyuk’s diagnosis of “atypical” was “reasonable … as the sample demonstrated increased cellularity.” (43–44.) They also denied causation, arguing that “Dr. Labow … did not rely solely on the pathology results in this case in making the decision to operate” (48), but rather “integrated the findings with the information he previously had” (49). Mr. Padilla did not oppose dismissal as to CT Lee (4890), but did offer expert opinion showing Dr. Buyuk’s negligence and its role in contributing to 7 In general terms, an “ileostomy” is an opening in the abdominal wall that is made during surgery, in which the end of the ileum (the lowest part of the small intestine) is brought through this opening to form a stoma, usually on the lower right side of the abdomen. Since the ileostomy has no sphincter muscles, Mr. Padilla needed to wear a pouch to collect the stool. 18 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 Dr. Labow’s decision to operate, which caused Mr. Padilla’s injuries. His expert cytopathologist examined Mr. Padilla’s slides and affirmed “that there were no abnormal or atypical findings.” (4929.) The expert also opined that Dr. Buyuk departed from the standard of care by reporting not just on her interpretation of the slides but also “extraneous clinical data.” (4930.) The expert also opined that “Dr. Buyuk’s departures from good and accepted practice proximately caused Mr. Padilla’s injuries” by leading Dr. Labow to change his plan from observation and waiting to surgery. (4932–33.) Mr. Padilla also submitted an affirmation from an expert surgeon, who also explained Dr. Buyuk’s contribution to Mr. Padilla’s injuries (4947): ….From September 29, 2016 through November 2, 2016, Dr. Labow consistently, and accurately, noted that malignancy was unlikely…. However, after receipt of the FNA report, by November 9, 2016, Dr. Labow’s office documented that Mr. Padilla had acinar cell carcinoma, and that they would proceed with the pancreatectomy and splenectomy surgery. In reply, Respondents asserted that Mr. Padilla’s expert’s review of the actual slides supposedly was “insufficient to raise a triable issue of fact” (5010), and that Mr. Padilla failed to raise an issue of fact as to causation because “Dr. Labow, using all of the diagnostic tools available to him, could not rule out cancer in this patient without surgery” (5012). Justice Kelly granted the motion, dismissing as to not CT Lee and Dr. Buyuk as well as to MSW as alleged to be vicariously liable for the individual 19 FILED: NEW YORK COUNTY CLERK 09/15/2022 07:39 PM INDEX NO. 805098/2018 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 09/15/2022 Respondents. He found an issue of fact as to Dr. Buyuk’s departure from the standard of care (21-22): As to the claims asserted against Buyuk, the plaintiffs expert raised a triable issue of fact as to whether she departed from good and accepted practice by incorrectly noting the presence of hypercellularity in the specimen, which the expert opined was absent, and incorrectly diagnosing the specimen as atypical, which the expert opined was an incorrect diagnosis in light of appearance of the cells on the slide and Buyuk’s own statement that the cells themselves did not appear atypical. Justice Kelly then found, however, that Mr. Padilla “failed to raise a triable issue of fact as to whether Buyuk’s diagnosis of atypicality, or even her expression of a concern for the presence of acinar carcinoma in light of the presence of a mass, caused Labow to recommend or perform surgery.” (22.) Justice Kelly conceded that Dr. Labow read Dr. Buyuk’s report before recommending surgery, but then concluded that “it was his own determination that only surgery definitively could resolve the issue of whether the plaintiff’s pancreatic mass was or was not cancerous.” (22.) Justice Kelley’s decision and order was dated on May 4, 2022. (23.) Mr.