Mosezhnik v. Berenstein, 33 A.D.3d 895 (N.Y. App. Div. 2d Dep't 2006). · Go Syfert
Mosezhnik v. Berenstein, 33 A.D.3d 895 (N.Y. App. Div. 2d Dep't 2006). Cases Citing This Book View Copy Cite
50 citation events (50 in the last 25 years) across 1 distinct court.
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Cited for
At page 897 Insufficiency of expert opinions to establish proximate cause15 citing cases“a defendant may be held liable for ordinary negligence upon his or her failure to communicate significant medical findings to a patient or her treating physician”3 citing courts quote it
  • Mylar v. Niagara Falls Mem. Med. Ctr., 234 A.D.3d 1262 (N.Y. App. Div. 4th Dep't 2025).published
    Rather, the expert, in conclusory form, merely speculated that Chalupka's alleged deviations from the applicable standard of care contributed to Mason's injuries, and thus the affidavit was insufficient to raise a triable issue of fact wit…
  • Humbolt v. Parmeter, 196 A.D.3d 1185 (N.Y. App. Div. 4th Dep't 2021).published
    The affidavit of plaintiff's medical expert failed to raise a triable issue of fact in opposition inasmuch as the conclusory opinion of plaintiff's expert that defendants' "multiple deviations from the standard of care were a substantial c…
  • Martingano v. Hall, 188 A.D.3d 1638 (N.Y. App. Div. 4th Dep't 2020).published
    Indeed, on the occasions that decedent was [*2]admitted to the emergency department, he was under the care of other physicians for his tumor condition, the scope of radiology services was limited to emergency care, and Radiology Associates…
  • Nowelle B. v. Hamilton Med., Inc., 2019 NY Slip Op 8019 (N.Y. App. Div. 4th Dep't 2019).published
    We also agree with the Binghamton defendants that plaintiff's two expert submissions failed to raise a triable issue of fact with respect to proximate cause inasmuch as those submissions provide no explanation to support the claim that the…
  • Neyman v. Doshi Diagnostic Imaging Servs., P.C., 153 A.D.3d 538 (N.Y. App. Div. 2d Dep't 2017).published
    The sonogram was, as the plaintiff’s expert radiologist concedes, “unremarkable,” and neither Doshi nor Dorsten, its employee, assumed a general duty of care to schedule further testing or independently diagnose Olena’s medical condition (…
  • Leigh v. Kyle, 143 A.D.3d 779 (N.Y. App. Div. 2d Dep't 2016).published
    Contrary to the assertion of the plaintiffs’ expert, the single examination by Mechanic, without more, did not create a further duty on his part to supervise or participate in other aspects of her care (see Kleinert v Begum, 144 AD2d 645,…
  • Doe v. Schwarzwald, 142 A.D.3d 578 (N.Y. App. Div. 2d Dep't 2016).published
    Through the affirmation of his expert, a board certified internist with a subcertification in gastroenter-ology, Baiocco established his prima facie entitlement to judgment as a matter of law by showing that he fulfilled his duty of care b…
  • Parrilla v. Buccellato, 95 A.D.3d 1091 (N.Y. App. Div. 2d Dep't 2012).published
    Furthermore, the remaining allegations of malpractice cited by the plaintiff’s experts were conclusory and failed to differentiate between the acts and omissions of the different treatment providers (see Mosezhnik v Berenstein, 33 AD3d 895…
  • Aparicio v. Goldberg, 94 A.D.3d 502 (N.Y. App. Div. 1st Dep't 2012).published
    Plaintiffs experts’ speculation and conclusory assertions that decedent would have otherwise had a more favorable prognosis is insufficient to establish causation (see Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]; Rodriguez v Montefiore…
  • Covert v. Walker, 82 A.D.3d 822 (N.Y. App. Div. 2d Dep't 2011).published
    In opposition, the plaintiffs failed to raise a triable issue of fact, as White had no further responsibility to independently diagnose the decedent’s condition (see Dockery v Sprecher, 68 AD3d 1043, 1045-1046 [2009]; Mosezhnik v Berenstei…
Show 5 more citing cases
  • Covert v. Walker, 82 A.D.3d 825 (N.Y. App. Div. 2d Dep't 2011).published
    In opposition, the plaintiffs failed to raise a triable issue of fact, as Ramirez had no further responsibility to independently diagnose the decedent’s condition (see Dockery v Sprecher, 68 AD3d 1043, 1045-1046 [2009]; Mosezhnik v Berenst…
  • Heller v. WeinBerg, 77 A.D.3d 622 (N.Y. App. Div. 2d Dep't 2010).published
    Corp., 47 AD3d at 801; Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]).
  • Chipley v. Stephenson, 72 A.D.3d 1548 (N.Y. App. Div. 4th Dep't 2010).published
    In any event, even assuming, arguendo, that the affirmation established that defendants’ treatment constituted a departure from accepted practice, I conclude that plaintiff failed to raise a triable issue of fact sufficient to defeat the m…
  • Dockery v. Sprecher, 68 A.D.3d 1043 (N.Y. App. Div. 2d Dep't 2009).published
    He did not assume a general duty of care to independently diagnose the patient’s medical condition (see Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]; Wasserman v Staten Is.
  • Dombroski v. Samaritan Hosp., 47 A.D.3d 80 (N.Y. App. Div. 3d Dep't 2007).published
    Under these circumstances, we hold that Tigue—when confronted with lab results which did not indicate any immediate threat to the patient and were not related to Tigue’s treatment of plaintiffs trauma, and where plaintiff was being admitte…
At page 896 Reviewing summary judgment on medical malpractice claims10 citing casespractice, the plaintiff appeals, as limited, by her notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Rosenberg, J.),…opening of page *896 (no citing court says what it cites this page for) · 9 listed here
  • Vodos v. Coopersmith, 85 A.D.3d 909 (N.Y. App. Div. 2d Dep't 2011).published
    However, in opposition, the plaintiffs raised a triable issue of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine (see Gomez v Katz, 61 AD3d 108, 111 [2009]; Texeria v BAB Nuclear Radiology, P.C…
  • O'Shea v. Buffalo Med. Grp., P.C., 64 A.D.3d 1140 (N.Y. App. Div. 4th Dep't 2009).published
    The burden then shifted to plaintiffs to raise triable issues of fact by submitting a physician’s affidavit both “ ‘attesting to a departure from accepted practice and containing the attesting [physician’s] opinion that the defendant’s omi…
  • Pigut v. Leary, 64 A.D.3d 1182 (N.Y. App. Div. 4th Dep't 2009).published
    In any event, the affidavit of plaintiffs expert fails to establish that the alleged departures from accepted standards of care by Tobias were a proximate cause of injury to or the death of decedent (see Mosezhnik v Berenstein, 33 AD3d 895…
  • Geffner v. North Shore Univ. Hosp., 57 A.D.3d 839 (N.Y. App. Div. 2d Dep't 2008).published
    Foley Skilled Nursing Facility, 45 AD3d 558 [2007]; Rebozo v Wilen, 41 AD3d 457, 458 [2007]; Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]).
  • Texeria v. BAB Nuclear Radiology, P.C., 54 A.D.3d 1022 (N.Y. App. Div. 2d Dep't 2008).published
    However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine (see Cherise v Braff, 50 AD3d 724, 726 [2008]; Mosezhnik v Berenstein, 33 AD3d 89…
  • Cherise v. Braff, 50 A.D.3d 724 (N.Y. App. Div. 2d Dep't 2008).published
    Under the circumstances, where, inter alia, the plaintiff testified at her deposition that Cumberland’s physicians “told” her that she “ha[d] to go” to Cumberland “every year” for a “checkup” and a mammogram because of her “fibro,” an issu…
  • Sosnoff v. Jackman, 45 A.D.3d 568 (N.Y. App. Div. 2d Dep't 2007).published
    In this case, there is an issue of fact as to whether the sonograms performed on the plaintiff pursuant to the protocol for the cancer detection research study were also prescribed to monitor her condition as a patient at high risk for ova…
  • Texeria v. BAB Nuclear Radiology, P.C., 43 A.D.3d 403 (N.Y. App. Div. 2d Dep't 2007).published
    However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations as to Singh was tolled by the continuous treatment doctrine (see Elkin v Goodman, 285 AD2d 484, 486 [2001]; cf. Mosezhnik v Beren…
  • Reid v. Soults, 138 A.D.3d 1087 (N.Y. App. Div. 2d Dep't 2016).published 2 cites
    Thus, the radiologists established that any departures in their interpretation of the CT scans were not a proximate cause of the claimed injuries (see Elkin v Goodman, 24 AD3d 717, 719 [2005]; see also Mosezhnik v Berenstein, 33 AD3d 895,…
At page 898 Failure to communicate findings as ordinary negligence7 citing cases5 listed here
  • Braun v. Lewis, 117 A.D.3d 439 (N.Y. App. Div. 1st Dep't 2014).published 2 cites
    “A defendant may be held liable for ordinary negligence upon his or her failure to communicate significant medical findings to a patient or her treating physician” (Mosezhnik v Berenstein, 33 AD3d 895, 898 [2d Dept 2006]; see Yaniv v Taub,…
  • Mancuso v. Kaleida Health, 100 A.D.3d 1468 (N.Y. App. Div. 4th Dep't 2012).published 2 cites
    While we agree with defendant that a mistake in taking a patient’s medical history is a claim that sounds in medical malpractice (see generally Bleiler v Bodnar, 65 NY2d 65 , 72 [1985]), the claim here concerns the “failure to communicate…
  • Cohen v. Kalman, 54 A.D.3d 307 (N.Y. App. Div. 2d Dep't 2008).published
    The affidavit of the plaintiffs expert, submitted in opposition, failed to raise an issue of fact as to whether the defendant’s alleged negligence was the proximate cause of her injuries (see Ennd v Kopp, 48 AD3d 740, 741 [2008]; Posokhov…
  • Bennett v. Long Island Jewish Med. Ctr., 51 A.D.3d 959 (N.Y. App. Div. 2d Dep't 2008).published
    On the facts presented, we cannot characterize as palpably improper or insufficient as a matter of law the amendment alleging that the defendants were negligent in failing to review the CT scan report and apprise the plaintiff of the resul…
  • Mancuso, Daniel v. Kaleida Health, No. CA 12-00631 (N.Y. App. Div. 4th Dep't Nov. 9, 2012).published
Other citing cases1 with no pin cite or quoted language on record
  • Mann v. Okere, 195 A.D.3d 910 (N.Y. App. Div. 2d Dep't 2021).published
Retrieving the full opinion text from the archive…
Tamara Mosezhnik
v.
Anna Berenstein, and Anita Moallem
Appellate Division of the Supreme Court of the State of New York.
Oct 24, 2006.
Published opinion
33 A.D.3d 895
Cited by 37 opinions  |  Published

In an action, inter alia, to recover damages for medical mal[*896]practice, the plaintiff appeals, as limited, by her notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Rosenberg, J.), dated January 14, 2005, as amended by an order of the same court dated March 12, 2005, as granted those branches of the motion of the defendants Doshi Diagnostic Imaging Services and Anita Moallem which were for summary judgment dismissing the medical malpractice causes of action insofar as asserted against them and the negligence cause of action involving mammograms conducted on June 19, 1999, and June 2, 2001, insofar as asserted against Doshi Diagnostic Imaging Services.

Ordered that the order, as amended, is affirmed insofar as appealed from, with costs, and upon searching the record, that branch of the motion which was for summary judgment dismissing the negligence cause of action involving a mammogram conducted on April 26, 2000, insofar as asserted against Doshi Diagnostic Imaging Services is granted and so much of the order dated April 26, 2000, as denied that branch of the motion is vacated.

Summary judgment dismissing all of the medical malpractice causes of action asserted against the defendant Doshi Diagnostic Imaging Services (hereinafter Doshi Imaging) and the defendant Anita Moallem (hereinafter Dr. Moallem) was properly granted. Contrary to the Supreme Court’s conclusion, there are triable issues of fact as to whether the medical malpractice causes of action involving the June 19, 1999, mammogram should be deemed timely under the continuous treatment doctrine as there is evidence that Doshi Imaging and its radiologists were monitoring the density of the plaintiffs breasts from 1997 to 2001, by interpreting mammography films and comparing prior mammogram results (see Prinz-Schwartz v Levitan, 17 AD3d 175, 178-179 [2005]; Elkin v Goodman, 285 AD2d 484, 486 [2001]; Canter v East Nassau Med. Group, 270 AD2d 381 [2000]; Pace v Caron, 232 AD2d 617 [1996]; Kurland v McElwain, 231 AD2d 685, 686 [1996]; CPLR 214-a). Nevertheless, after those defendants made a prima facie showing of their entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to the requisite element of proximate cause (see Anderson v Lamaute, 306 AD2d 232, 233 [2003]). In a medical malpractice action, “a plaintiff must submit a physician’s affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor’s opinion that the defendant’s omissions or departures were a competent producing cause of the injury” (Domaradzki v Glen Cove Ob/Gyn Assoc., 242 AD2d 282, 282 [1997]; see Alvarez v [*897] Prospect Hosp., 68 NY2d 320, 324 [1986]; Anderson v Lamaute, supra at 233). Here, the plaintiff submitted an expert affidavit in which the expert opined that Dr. Moallem departed from accepted practice by overlooking an “architectural distortion” evident in the plaintiffs left breast. The expert, however, failed to explain how Dr. Moallem’s departure was a proximate cause of the plaintiffs injuries. The expert merely opined that the collective departures by the defendants resulted in a delayed diagnosis and treatment, and a less favorable prognosis. Such conclusory opinions were insufficient to raise a triable issue of fact concerning proximate cause (see Dellacona v Dorf, 5 AD3d 625 [2004]; Kaplan v Hamilton Med. Assoc., 262 AD2d 609, 610 [1999]; Yasin v Manhattan Eye, Ear & Throat Hosp., 254 AD2d 281, 283 [1998]; see also Amsler v Verrilli, 119 AD2d 786, 787 [1986]; cf. McMahon v Badia, 195 AD2d 445, 446 [1993]).

Similarly, the plaintiff failed to raise a triable issue of fact as to proximate cause with respect to the malpractice causes of action against Doshi Imaging involving the April 26, 2000, and June 2, 2001, mammograms. Moreover, the plaintiff and her expert, in effect, conceded that the radiologists committed no departure with regard to the findings after those mammograms. Accordingly, the Supreme Court properly granted summary dismissing those causes of action (see Amsler v Verrilli, supra at 786-787).

The plaintiffs contention that the radiologists at Doshi Imaging departed from accepted practice by failing to appreciate the gravity of the situation and schedule immediate testing, overlooks the limited nature of the legal obligations of Doshi Imaging and its radiologists concerning her treatment. “Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” (Chulla v DiStefano, 242 AD2d 657, 658 [1997]; see Markley v Albany Med. Ctr. Hosp., 163 AD2d 639, 640 [1990]). Here, none of the radiologists at Doshi Imaging were the plaintiffs treating physicians. The radiologists had the limited role of interpreting mammography films and documenting their findings. Neither Doshi Imaging nor Dr. Moallem assumed a general duty of care to schedule or urge further testing, or diagnose the plaintiffs medical conditions (see Wasserman v Staten Is. Radiological Assoc., 2 AD3d 713, 714 [2003]; Giberson v Panter, 286 AD2d 217 [2001]).

The plaintiffs remaining causes of action against Doshi Imaging sound in ordinary negligence rather than medical malpractice (see Glasheen v Long Is. Diagnostic Imaging, 303 AD2d

[*898] 365, 367 [2003]; Yaniv v Taub, 256 AD2d 273, 274 [1998]; McKinney v Bellevue Hosp., 183 AD2d 563, 564-565 [1992]). A defendant may be held liable for ordinary negligence upon his or her failure to communicate significant medical findings to a patient or her treating physician (see Glasheen v Long Is. Diagnostic Imaging, supra at 367; Matter of Caracci v State of New York, 178 AD2d 876, 877 [1991]). The plaintiff asserts that Doshi Imaging was negligent and violated the Mammography Quality Standards Act (hereinafter MQSA) by failing to mail letters to her sufficiently relating the mammography findings (see 42 USC § 263b [f] [1] [G] [ii]). Although a violation of a statute is probative of negligence, a negligence cause of action must fail absent a showing of proximate cause (see generally Bauer v Female Academy of Sacred Heart, 97 NY2d 445, 453-454 [2002]; Basso v Miller, 40 NY2d 233, 242 [1976]; Martin v Herzog, 228 NY 164, 168 [1920]; Ragona v Hamilton Hall Realty, 251 AD2d 391, 392 [1998]; O’Leary v American Airlines, 100 AD2d 959, 959-960 [1984]).

Here, the plaintiff cannot demonstrate that Doshi Imaging’s purported failure to adequately communicate the mammography results or comply with the MQSA was the proximate cause of a delayed diagnosis or damages. The overwhelming evidence in the record demonstrates that the plaintiff or her treating physician Dr. Berenstein obtained all the mammography reports or the results thereof from Doshi Imaging (see Glasheen v Long Is. Diagnostic Imaging, supra at 367). Consequently, the Supreme Court properly granted summary judgment dismissing the negligence causes of action against Doshi Imaging involving the June 19, 1999, and June 2, 2001, mammograms. Further, upon searching the record, the remaining negligence cause of action involving the April 26, 2000, mammogram should be dismissed. Miller, J.E, Crane, Santucci and Luciano, JJ., concur.