| Germaine v Yu |
| 2008 NY Slip Op 02551 [49 AD3d 685] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Florence Germaine, Respondent, v Stanley Yu, Defendant,and Adam J. Singer, Appellant. |
—[*1] Duffy, Duffy & Burdo, Uniondale, N.Y. (James N. LiCalzi of counsel), forrespondent.
In an action to recover damages for medical malpractice, the defendant Adam J. Singerappeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County(Doyle, J.), dated May 31, 2007, as denied his motion for summary judgment dismissing thecomplaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and theappellant's motion for summary judgment dismissing the complaint insofar as asserted againsthim is granted.
On September 15, 2002, shortly before noon, the plaintiff appeared at the emergency room ofthe Stony Brook University Hospital (hereinafter the hospital) complaining of abdominal pain,nausea, and constipation. The defendant Adam J. Singer (hereinafter the defendant), an attendingphysician, examined the plaintiff at approximately 12:45 p.m. Stanley Yu, the resident assignedto the plaintiff, examined her at approximately 1:00 p.m. Several tests were ordered.
At 4:00 p.m., before the tests were completed, the defendant's shift ended and he left thehospital. Almost five hours later, after additional testing was ordered and completed, the plaintiffwas discharged from the hospital, with a diagnosis of diverticulitis. Three days later, she wasadmitted to St. Catherine Siena Medical Center, where she was diagnosed with peritonitis and aperforated sigmoid colon, and underwent surgery.[*2]
The plaintiff subsequently brought this action seekingdamages for medical malpractice against the defendant and Yu. She alleged that the decision todischarge her and the defendant's inadequate supervision of Yu constituted departures fromaccepted medical practice and proximately caused her subsequent hospitalization and surgery.The defendant moved for summary judgment dismissing the complaint insofar as asserted againsthim. The Supreme Court denied the motion. We reverse.
"On a motion for summary judgment in a medical malpractice action, a defendant doctor hasthe burden of establishing the absence of any departure from good and accepted medical practice,or that the plaintiff was not injured thereby" (Shahid v New York City Health & Hosps. Corp., 47 AD3d 800,801 [2008]). As the plaintiff correctly concedes and the Supreme Court found, the defendantestablished his prima facie entitlement to judgment as a matter of law. The defendantdemonstrated that, when he left the hospital, he transferred responsibility for the care of theplaintiff to another attending physician, and thus was not responsible for any departures fromaccepted medical practice that occurred thereafter in either the supervision of Yu or the decisionto discharge the plaintiff (see Goldfarb vSt. Charles Hosp. & Rehabilitation Ctr., 2 AD3d 579, 580-581 [2003]; Arias vFlushing Hosp. Med. Ctr., 300 AD2d 610 [2002]; Kenny v Parkway Hosp., 281AD2d 596 [2001]).
In opposition to the motion, the plaintiff failed to raise a triable issue of fact (see Shahid v New York City Health &Hosps. Corp., 47 AD3d 800 [2008]; Hazell v Dranitzke, 46 AD3d 619 [2007]). The affidavit of theplaintiff's expert, which cited as departures the decision to discharge the plaintiff and a failure toadequately supervise Yu in connection with the plaintiff's care, failed to address the evidence thatthe defendant had transferred responsibility for the plaintiff's care to another attending physicianalmost five hours before the plaintiff was discharged from the hospital (see Goldfarb v St.Charles Hosp. & Rehabilitation Ctr., 2 AD3d at 580-581). Moreover, the plaintiff failed toraise a triable issue of fact as to whether the defendant in fact transferred responsibility for theplaintiff's care to another attending physician (see Zuckerman v City of New York, 49NY2d 557, 562-563 [1980]). Accordingly, the defendant's motion for summary judgmentdismissing the complaint insofar as asserted against him should have been granted. Fisher, J.P.,Dillon, McCarthy and Belen, JJ., concur. [See 2007 NY Slip Op 31488(U).]