Feinberg v. Feit

• Decision Date: 21 November 2005
• Docket Number: 2004-06513.
• Citation: 806 N.Y.S.2d 661,23 A.D.3d 517,2005 NY Slip Op 08946
• Parties: FRANKLIN FEINBERG, Appellant, v. SHELDON FEIT et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

23 A.D.3d 517

806 N.Y.S.2d 661

2005 NY Slip Op 08946

FRANKLIN FEINBERG, Appellant, v. SHELDON FEIT et al., Respondents, et al., Defendant.

2004-06513.

Appellate Division of the Supreme Court of the State of New York, Second Department.

November 21, 2005.

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), entered July 6, 2004, as granted the motion of the defendants Sheldon Feit and Metropolitan Diagnostic Imaging, P.C. for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint is reinstated against the defendants Sheldon Feit and Metropolitan Diagnostic Imaging, P.C.

The plaintiff alleges that the defendants were negligent in their treatment of the plaintiff's deceased wife, Holly Feinberg, which resulted in her death from lung cancer. Ms. Feinberg, a one-pack per day cigarette smoker for 30 years, saw the defendant Dr. Philip Spadafora for a routine checkup in March 1999. During the visit, Dr. Spadafora took a chest X-ray which he sent to the defendant Metropolitan Diagnostic Imaging, P.C. (hereinafter Metropolitan), for review. The defendant Dr. Sheldon Feit, a radiologist on the staff at Metropolitan, reviewed Ms. Feinberg's chest X-ray and found no abnormalities. He prepared a report of his findings and submitted it to Dr. Spadafora, who advised Ms. Feinberg of the results. Ms. Feinberg never visited Dr. Spadafora again. In March 2000, while undergoing a routine physical examination with another physician, Ms. Feinberg had another chest X-ray, which revealed a suspicious mass, requiring further testing. Eventually, a biopsy was conducted which determined that Ms. Feinberg had lung cancer. Ms. Feinberg was treated with surgery, chemotherapy, and radiation. However, she died of lung cancer on October 7, 2001.

The plaintiff, individually and as administrator of Ms. Feinberg's estate, commenced this action against the defendants alleging, inter alia, that they failed to properly and timely diagnose Ms. Feinberg's cancer. This appeal ensued from so much of the order as granted the motion of Dr. Feit and Metropolitan for summary judgment dismissing the complaint insofar as asserted against them.

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage (see Anderson v Lamaute, 306 AD2d 232, 233 [2003]; DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359 [1998]). Dr. Feit and Metropolitan made a prima facie showing of entitlement to summary judgment...