Summary
In Feldman v. Levine, 90 A.D.3d 477 (1st Dept 2011), the Appellate Division reinstated a $1,200,000 jury verdict in 2008 for pain and suffering of the decedent where an over four-year delay in diagnosis of lung cancer led to multiple metastases and the hastened death of the approximately 54-year-old decedent two months after discovery of the cancer.
Summary of this case from Lucenti v. United StatesOpinion
2011-12-13
Melissa FELDMAN, etc., Plaintiff–Appellant, v. Susan M. LEVINE, M.D., Defendant–Respondent.
Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellant. Callan Koster Brady & Brennan, LLP, New York (Michael P. Kandler of counsel), for respondent.
Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellant. Callan Koster Brady & Brennan, LLP, New York (Michael P. Kandler of counsel), for respondent.
GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, ACOSTA, RICHTER, JJ.
Judgment, Supreme Court, New York County (Karen S. Smith, J.), entered May 13, 2009, dismissing the complaint and bringing up for review orders, same court and Justice, entered on or about March 26, 2009 and April 29, 2009, which granted defendant's motion for, inter alia, judgment notwithstanding the verdict, unanimously reversed, on the law, without costs, the judgment vacated, defendant's motion denied and the jury verdict awarding plaintiff the principal sum of $1,200,000 reinstated. The Clerk is directed to enter judgment accordingly.
The oncological issues presented by the competing causation experts, namely, the estimation of the rate of progression of decedent's cancer, do not involve the type of novel scientific methodology contemplated for a Frye hearing ( see Frye v. United States, 293 F. 1013 [D.C. Cir.1923] ). Rather, the experts' disagreement as to whether decedent's lung cancer was present and could have been diagnosed during her treatment with defendant prior to her diagnosis of Stage IV lung cancer, was a jury issue ( see Marsh v. Smyth, 12 A.D.3d 307, 785 N.Y.S.2d 440 [2004] ). Moreover, the medical literature cited by plaintiff supported the methodology used by her expert to estimate the progression of decedent's cancer ( see Leffler v. Feld, 51 A.D.3d 410, 856 N.Y.S.2d 106 [2008] ).
Accordingly, defendant's motion for judgment notwithstanding the verdict should have been denied. It cannot be said that “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial” ( Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ). Here, there is evidence from which the jury reasonably could have concluded that the delay in diagnosis and treatment of the decedent's lung cancer caused her pain and suffering, diminished her chance of survival and hastened her death ( see Schaub v. Cooper, 34 A.D.3d 268, 824 N.Y.S.2d 241 [2006] ).