Vossler v. Amin
| Decision Date | 12 July 1991 |
| Citation | 572 N.Y.S.2d 238,175 A.D.2d 570 |
| Parties | Leo VOSSLER and Mary Ann Vossler, Respondents-Appellants, v. D.S. AMIN, M.D., and Cuba Memorial Hospital, Appellants, J. Asgher, M.D., K. Shim, M.D., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Maloney, Gallup, Roach, Brown & McCarthy, P.C. by J. Mark Gruber, Buffalo, for appellant, D.S. Amin and respondents Asgher and Shim.
Dwyer, Sharkey & Williams, P.C. by Joseph Dwyer, Olean, for respondents-appellants.
Damon & Morey by Ann Herman, Buffalo, for appellant, Cuba Memorial Hospital.
Before DILLON, P.J., and DOERR, LAWTON, LOWERY and DAVIS, JJ.
Supreme Court erred in denying defendants Amin and Cuba Memorial Hospital (Hospital) summary judgment dismissing plaintiffs' complaint. Plaintiff Leo Vossler alleges that he suffered physical and psychic injury as a result of a two-month delay in diagnosis of his lung cancer. Defendants established by competent medical proof that plaintiff Leo Vossler had suffered no injury caused by the purported delay. Plaintiffs failed to offer any competent medical proof demonstrating that plaintiff Leo Vossler's medical condition had been adversely affected by any delay in diagnosis and treatment. Thus, defendants' contention that plaintiff Leo Vossler did not suffer a physical injury must be resolved, as a matter of law, in their favor (see also, Dodes v. North Shore Univ. Hosp., 149 A.D.2d 455, 539 N.Y.S.2d 954; Hryniak v. Nathan Littauer Hosp. Assn., 86 A.D.2d 699, 446 N.Y.S.2d 558). In addition, plaintiff Leo Vossler's assertion of psychic injury, without any claim of physical injury, does not, in the circumstances of this case, state a cognizable cause of action (see, Lancellotti v. Howard, 155 A.D.2d 588, 547 N.Y.S.2d 654; Green v. Leibowitz, 118 A.D.2d 756, 500 N.Y.S.2d 146). Finally, because defendants are not liable to plaintiff Leo Vossler, plaintiff Mary Ann Vossler's derivative cause of action also must be dismissed (see, Allen v. County of Westchester, 172 A.D.2d 471, 567 N.Y.S.2d 826; Siskind v. Norris, 152 A.D.2d 196, 198, 548 N.Y.S.2d 160, lv. dismissed 76 N.Y.2d 772, 559 N.Y.S.2d 986, 559 N.E.2d 680; see also, Liff v.Schildkrout, 49 N.Y.2d 622, 427 N.Y.S.2d 746, 404 N.E.2d 1288). Accordingly, the order of Supreme Court is modified to dismiss the complaint against defendants Amin and the Hospital, and, as modified, is affirmed.
Order modified on the law and as modified affirmed with costs to defendants...
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Tischler v. Dimenna
...600 N.Y.S.2d 151 (2d Dep't 1993); DeRosa v. Michelman, P.C., 184 A.D.2d 490, 584 N.Y.S.2d 202 (2d Dep't 1992); Vossler v. Amin, 175 A.D.2d 570, 572 N.Y.S.2d 238 (4th Dep't 1991); Lancellotti v. Howard, 155 A.D.2d 588, 547 N.Y.S.2d 654 (2d Dep't 1989). The policy reason behind these rulings ......
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Bossio v. Fiorillo
...harm due to the delay there can be no recovery for emotional harm, and there is at least one case which so holds (see, Vossler v. Amin, 175 A.D.2d 570, 572 N.Y.S.2d 238). The Court of Appeals, however, has long recognized that a malpractice victim can recover damages for mental anguish resu......
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