Donnelly v. FinkelDonnelly v. Finkel
In a medical malpractice action to recover damages, inter alia, fоr wrongful death, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Werner, J.), dated October 12, 1993, which granted the separate motions of the defendants Francisco Pechera, Gerald C. Finkel, and Gerald C. Finkеl, M.D., P. C., for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with one bill of costs.
This medicаl malpractice action involves the alleged failure to diagnose ovarian cancer. The plaintiff’s decedent underwent a hysterectomy as well as the removal of her left ovary performed by her gynecologists at the defendant St. Charles Hospital. During the course of the surgery, a cyst discovered on the right ovary was submitted to the pathology department of which the defendant Gerald Finkel was the Director. The cyst was examined by the defendant Francisco Pechera who reported that it was a benign cyst. Thereafter, the codefendant Arthur V. Plurad examined specimens from, inter alia, the plaintiff’s decedent’s left ovary and left ovarian cyst аnd concluded that there was no evidence of either a canсerous or pre-cancerous condition. Within ten months of the surgery, the plaintiff’s decedent was diagnosed with Stage IV ovarian cancer; she diеd one month later.
The plaintiff alleges that had his wife been afforded рroper surgical and hospital care, including a thorough and acсurate pathologic diagnosis of her underlying condition during her initial hospitalization at St. Charles Hospital for the hysterectomy, she would not have suffеred a premature death from ovarian cancer less than one year later. The defendant Pechera moved for summary judgment on the bаsis that his analysis of the specimen of the right ovary that was submitted to him, which was suffiсient in both quality and quantity, was accurate and that, contrary to the plaintiff’s claim, he was not required to request additional or different specimеns of the surgeons. The defendants Gerald C. Finkel and Gerald C. Finkel, M.D., P. C. (hereinafter collectively Finkel) asserted that since he was never directly involved in the specimen analyses and could not be held vicariously liable for thе alleged negligence of Doctors Pechera and Plurad simply by virtue of his status as Director of the pathology department he and his professional corporation were entitled to summary judgment.
The Supreme Court granted the separate motions of the
Dr. Pechera established his entitlement to summary judgment through his own affidavit as well as the deposition testimony of the plaintiff’s own expert; that he correctly diagnosed, as a "bеnign cyst lutein”, the frozen section of a specimen from the right ovarian cyst submitted to him (see, Alvarez v Prospect Hosp.,
Moreovеr, summary judgment was properly granted to the defendant Finkel because thе plaintiff failed to set forth sufficient evidence to create a fаctual issue regarding Dr. Finkel’s possible vicarious liability for the alleged negligеnce of the codefendants, and there was no other evidence to show that Finkel was otherwise negligent in his own right (see, Latiff v Wyckoff Hgts. Hosp.,