On July 19, 2023, William A. Weiner, M.D., while working for Prenuvo New York City Cancer & Screening, misinterpreted a full-body magnetic resonance imaging (MRI) scan taken of the plaintiff at a New York Prenuvo location on July 15, 2023. Specifically, the plaintiffs asserted that Weiner’s interpretation was incorrect and incomplete, since Weiner failed to recognize and acknowledge the presence of stenosis, irregular narrowing, and a partial occlusion in the patient’s proximal right middle cerebral artery, and that the patient consequently suffered a stroke on March 7, 2024 that would have been avoided by a proper interpretation of the MRI scan.
The plaintiffs filed their New York medical malpractice action based on alleged departures from good and accepted practice under both New York and California law, lack of informed consent, common-law negligence, gross negligence, negligent hiring and retention of healthcare personnel, strict products liability, breach of contract, and loss of spousal consortium.
The defendants moved to enforce the choice-of-law clause set forth in Section 15 of the Patient Agreement and Consent entered into between the plaintiff and the defendant that the plaintiff had signed on July 14, 2023. That clause provided, in relevant part, that “[t]he validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of California, without regard to any conflicts of law provisions. All parts of this Agreement apply to the maximum extent permitted by law.” The plaintiffs opposed the defendants’ motion.
The Supreme Court of the State of New York New York County stated in its Decision & Order on Motion filed on December 19, 2025: “The court concludes that the choice-of-law provision in the agreement that is the subject of this action was not sufficiently broad to encompass the entire relationship between the contracting parties. Rather, it was limited to “the validity, interpretation, construction and performance of th[e] Agreement.” Crucially, both New York and California jurisprudence limits the extent to which a breach of contract cause of action may be asserted in connection with a claim that primarily involves a medical provider’s departure from applicable standards of care. In New York, to establish a cause of action alleging breach of contract, a plaintiff ultimately must demonstrate the “formation of a contract between the parties, performance by the plaintiff, the defendant’s failure to perform, and resulting damage” (Flomenbaum v New York Univ., 71 AD3d 80, 91 [1st Dept 2009]; see Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1055 [3d Dept 2009]). A breach of contract claim in relation to the rendition of medical services will withstand a test of legal sufficiency where a medical defendant “expressed a specific promise to accomplish some definite result” … Moreover, a breach of contract cause of action may also be stated where a patient enters into an agreement with a physician, pursuant to which the patient agrees to retain the physician’s services in exchange for a specific promise that the physician would provide the patient with certain medical services in a particularized fashion, and the physician does not provide the services that were agreed to, or provide them in the manner agreed to (see Duquette v Oliva, 75 AD3d 727, 728 [3d Dept 2010]; Nicoleau v Brookhaven Mem. Hosp., 201 AD2d at 545). Under California law, “the elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.”
The court concluded: “the allegations set forth in the breach of contract cause of action did not identify a specific promise by Prenuvo of California, P.C., to accomplish some definite result, and did not articulate a specific promise that Prenuvo of California, P.C., would provide the patient with certain medical services in a particularized fashion but failed to provide them. Rather, it alleged a simple failure to diagnose the patient’s true condition, thus causing injury, which is a species of a claim sounding in medical malpractice … The court expresses no opinion as to the continuing validity of the breach of contact cause of action, but, in light of the foregoing, it nonetheless concludes that the choice-of-law provision in the subject agreement cannot be distended to cover non-contractual causes of action such as medical malpractice, lack of informed consent, common-law negligence, gross negligence, negligent hiring and retention of healthcare personnel, and strict products liability. Rather, to the extent that the breach of contract cause of action remains viable, the provision only applies to that cause of action itself. The court further concludes that Weiner is covered by the agreement, even though he is not specifically named therein.”
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