Covert v. Walker

• Decision Date: 08 March 2011
• Citation: 82 A.D.3d 824,918 N.Y.S.2d 209
• Parties: Denise M. COVERT, et al., respondents, v. Richard F. WALKER, etc., et al., appellants, Orange Regional Medical Center, et al., defendants.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 209

82 A.D.3d 824

Denise M. COVERT, et al., respondents,

v. Richard F. WALKER, etc., et al., appellants,Orange Regional Medical Center, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

March 8, 2011.

Feldman, Kleidman & Coffey, LLP, Fishkill, N.Y. (Marsha Solomon-Weiss and Robert Sappe of counsel), for appellants.

Gary Greenwald, Chester, N.Y. (Marc Leffler and David A. Brodsky of counsel), for respondents.

A. GAIL PRUDENTI, P.J., RANDALL T. ENG, ARIEL E. BELEN, and SANDRA L. SGROI, JJ.

In an action to recover damages for medical malpractice and wrongful death, the defendants Richard F. Walker, and Richard F. Walker, M.D., F.C.C.P., P.C., appeal from an order of the Supreme Court, Orange County (Cohen, J.), dated February 8, 2010, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

On April 26, 2005, the defendant pulmonologist Richard F. Walker ordered a CT scan, with contrast, of the thorax of the plaintiffs' decedent, which revealed, among other things, the existence of adenopathy (enlarged lymph nodes), which were of uncertain etiology. Walker considered ordering a biopsy of the decedent's lung tissue at that time, but elected not to do so due to her atrial fibrillation, which was subsequently corrected by a cardioversion procedure on July 7, 2005. On July 20, 2005, Walker ordered a further CT scan of the decedent's thorax, this time without contrast, which revealed, inter alia, the existence of a probable hilar adenopathy, which was "equivocal between reactive and neoplastic [cancerous] adenopathy by size criteria." Walker did not order any further testing to investigate the possibility that these abnormal CT scans were caused by cancer until the decedent presented to him with a paralyzed vocal cord on November 14, 2005. This condition prompted a biopsy of the decedent's lung tissue, which resulted in a diagnosis of non-small cell carcinoma of the lung. The decedent ultimately died from that condition on April 5, 2006. The administrators of the decedent's estate commenced this action against, among others, Walker and his professional corporation, Richard F. Walker, M.D., F.C.C.P., P.C. (hereinafter together the defendants), to recover damages for medical malpractice and wrongful death.

In support of their motion for summary judgment dismissing the complaint insofar as asserted against them, the...