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Decided on September 17, 2008
Supreme Court, New York County

109926/06

Appearances
Plaintiff represented by: Phil Papa, Esq. of Geller & Siegel, LLP
Defendant represented by: Pamela M. Harrinstein, Esq. of McAloon & Friedman, P.C.
Stanley L. Sklar, J.

In this medical malpractice action commenced by Joan Dunn against her dermatologist Neal B. Schultz, M.D., based on his alleged failure to timely diagnose invasive squamous cell carcinoma on her nose, Dr. Schultz moves for summary judgment dismissing the complaint which alleges a lack of informed consent and departures from accepted standards of medical practice.
Plaintiff does not oppose the branch of Dr. Schultz' motion which seeks dismissal of the lack of informed consent cause of action, and it is fairly evident from the pleadings that the gravamen of the action is the failure to timely diagnose cancer rather than the failure to inform Dunn of the risks and benefits and the appropriate alternatives to the proposed course of treatment. Thus the lack of informed consent cause of action is dismissed. This leaves the branch of the motion which seeks dismissal of the first cause of action which according to Dunn's bill of particulars alleges that continuously between April 13, 1999 and April 23, 2004 Dr. Schultz failed to properly respond to Dunn's medical history and failed to properly detect and timely biopsy "lesions, marks and discolorations" on her nose and thus failed to diagnose the carcinoma of her nose, thereby causing the "growth and spread of ... carcinoma of the nose." See Bill of Particulars items 1, 2, 3, 14, 15, 17
Dunn, who was fair-skinned, saw Dr. Schultz over a number of years for her sun-damaged skin. Dr. Schultz' chart of the patient which begins on April 13, 1999 indicates that on that visit he treated Dunn with glycolic acid to attempt to destroy multiple areas of Actinic Keratosis ("AK"), on among other places Dunn's face. AK according to Stedman's Electronic Dictionary, 4th Ed. is a "premalignant warty lesion occurring on the sun-exposed skin of the face [*2]or hands in light

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