| Demming v Denk |
| 2008 NY Slip Op 00935 [48 AD3d 1207] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| Lynn M. Demming, Formerly Known as Lynn M. Schillinger,Respondent, v Michael J. Denk, M.D., et al., Appellants, et al.,Defendant. |
—[*1] Damon & Morey LLP, Buffalo (Amy Archer Flaherty of counsel), for defendants-appellantsKaleida Health, Doing Business as Buffalo General Hospital, and Buffalo General Hospital. Rosenthal, Siegel & Muenkel, LLP, Buffalo (Ellen M. Krebs of counsel), forplaintiff-respondent.
Appeals from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), enteredAugust 29, 2007 in a medical malpractice action. The order, inter alia, denied the motions ofdefendants Michael J. Denk, M.D., Buffalo Medical Group, P.C., Kaleida Health, doing businessas Buffalo General Hospital, and Buffalo General Hospital for summary judgment dismissing thecomplaint against them.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion of defendants Kaleida Health, doing business as Buffalo General Hospital,and Buffalo General Hospital and dismissing the complaint against them and by denyingplaintiff's cross motion against those defendants and as modified the order is affirmed withoutcosts.
Memorandum: Plaintiff commenced this action on May 10, 2002 seeking to recover damagesfor injuries to her abdomen resulting from the alleged negligence of defendant Michael J. Denk,M.D. during breast reconstruction surgery performed on September 29, 1998 at defendantBuffalo General Hospital (Hospital). Supreme Court properly denied the motion of Dr. Denk andthe Buffalo Medical Group, P.C. (collectively, Denk defendants) for summary judgmentdismissing the complaint against them as time-barred and properly granted plaintiff's crossmotion to strike the affirmative defense of those defendants based on the statute of limitations.Although those defendants met their initial burden, plaintiff in opposition established theapplicability of the continuous treatment doctrine based upon a November 11, [*2]1999 procedure that would complete the final stage of plaintiff'sfive-stage breast reconstruction performed by Dr. Denk (see CPLR 214-a; Massie vCrawford, 78 NY2d 516, 519 [1991], rearg denied 79 NY2d 978 [1992]). Theabdominal complaints of plaintiff are directly related to Dr. Denk's "course of treatment" for thebreast reconstruction inasmuch as plaintiff's abdominal muscle and tissue were used to constructthe new breasts (see Branigan v DeBrovner, 197 AD2d 270, 274-275 [1994]; cf.Nykorchuck v Henriques, 78 NY2d 255 [1991]; see generally Massie, 78 NY2dat 519-520; McDermott v Torre, 56 NY2d 399, 405-406 [1982]). We have reviewed theremaining contentions of the Denk defendants and conclude that they are lacking in merit. To theextent that our decision in Adam v Park Ridge Hosp. (261 AD2d 856 [1999]) may be read to be inconsistent with our decision herein, that decision is no longer to befollowed.
We further conclude, however, that the court erred in denying the motion of Kaleida Health,doing business as Buffalo General Hospital, and the Hospital (collectively, Hospital defendants)for summary judgment dismissing the complaint against them as time-barred (see CPLR214-a), and in granting plaintiff's cross motion to strike the affirmative defense of thosedefendants based on the statute of limitations. We therefore modify the order accordingly. Thosedefendants met their initial burden, and plaintiff failed to raise an issue of fact whether she hadthe requisite "relationship of trust and confidence" with them in order for the continuoustreatment doctrine to apply (Neureuther v Calabrese, 195 AD2d 1035, 1036 [1993]).Plaintiff's reliance upon the five procedures performed at the Hospital during the course of thebreast reconstruction is insufficient to establish the necessary relationship of trust and confidencebetween plaintiff and the Hospital defendants. Plaintiff did not seek additional treatment fromthose defendants between the procedures, and plaintiff's physician made the determination whento schedule each procedure. Thus, each of the five surgical procedures was separate and discretewith respect to the Hospital defendants (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 10-11[2007]; see also McDermott, 56 NY2d at 403). Plaintiff also failed to raise an issue offact whether there was an agency or other relationship giving rise to vicarious liability betweenDr. Denk and the Hospital defendants (see Hill v St. Clare's Hosp., 67 NY2d 72, 79[1986]). Plaintiff's submissions merely demonstrate that Dr. Denk was serving as the chairpersonof the Hospital defendants' plastic surgery department at the time of the procedures, and hisvoluntary position as a chief of a hospital department "does not, by itself, raise any inference thatthe [Hospital defendants] exercised control over his private practice" (Sledziewski vCioffi, 137 AD2d 186, 188 [1988]). Present—Hurlbutt, J.P., Smith, Peradotto andPine, JJ.