| Martinez v La Porta |
| 2008 NY Slip Op 03601 [50 AD3d 976] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Danasia Martinez et al., Respondents, v Christopher G. LaPorta et al., Defendants, and Staten Island University Hospital,Appellant. |
—[*1] Kramer, Dillof, Livingston & Moore, New York, N.Y. (Matthew Gaier of counsel), forrespondents.
In an action, inter alia, to recover damages for medical malpractice, etc., the defendant StatenIsland University Hospital appeals from an order of the Supreme Court, Richmond County(Maltese, J.), dated December 15, 2006, which denied its motion for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantStaten Island University Hospital for summary judgment dismissing the complaint insofar asasserted against it is granted.
The plaintiffs claim that the infant plaintiff suffered a neurological injury known as Erb'spalsy during her birth as a result of the defendants' negligence. The infant was delivered by aprivate attending physician, the defendant Dr. Christopher G. La Porta at the defendant StatenIsland University Hospital (hereinafter SIUH) with an SIUH staff nurse providing assistance.SIUH moved for summary judgment dismissing the complaint insofar as asserted against it onthe ground that it was not liable for the actions of a private attending physician, and there was noevidence of any independent acts of negligence by its staff. The Supreme Court denied themotion. We reverse.[*2]
In general, a hospital cannot be held vicariously liable forthe negligence of a private attending physician (see Hill v St. Clare's Hosp., 67 NY2d 72,79 [1986]; Cerny v Williams, 32AD3d 881, 883 [2006]). In addition, a hospital "cannot be held concurrently liable with sucha physician unless its employees commit independent acts of negligence or the attendingphysician's orders are contraindicated by normal practice" (Cerny v Williams, 32 AD3dat 883; see Toth v Community Hosp. at Glen Cove, 22 NY2d 255, 265 n 3 [1968]).
SIUH established, prima facie, that its employees followed the orders of the attendingphysician, the defendant La Porta, that those orders were not contraindicated by normal practice,and that the nurse who assisted in the delivery did not commit any independent acts ofnegligence. In opposition, the plaintiffs failed to raise a triable issue of fact (see Cook vReisner, 295 AD2d 466, 467 [2002]; Kasendorf v Hempstead Gen. Hosp., 240 AD2d370, 371 [1997]; Georges v Swift, 194 AD2d 517, 518 [1993]). The opinion of theplaintiffs' expert that there may be a triable issue of fact as to whether the nurse improperlyapplied traction to the infant during the delivery had no factual support in the record (seeAlvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Lowery v Lamaute, 40 AD3d 822 [2007]). Accordingly, theSupreme Court should have granted SIUH's motion for summary judgment. Ritter, J.P., Covello,Angiolillo and McCarthy, JJ., concur.