| Cygan v Kaleida Health |
| 2008 NY Slip Op 04159 [51 AD3d 1373] |
| May 2, 2008 |
| Appellate Division, Fourth Department |
| Barbara D. Cygan, as Executrix of Stanley G. Cygan, Jr., Deceased,Respondent, v Kaleida Health et al., Appellants, and Dennis B. Chugh, M.D., et al.,Appellants-Respondents. |
—[*1] Brown & Tarantino, LLC, Buffalo (Ann M. Campbell of counsel), fordefendants-appellants-respondents. Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiff-respondent.
Appeals from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), enteredAugust 27, 2007 in a medical malpractice and wrongful death action. The order denieddefendants' motions for summary judgment dismissing the complaint and cross claims againstthem.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion of defendants Kaleida Health and Arthur E. Orlick, M.D. in part anddismissing the third and fourth causes of action and the claim for punitive damages against thosedefendants, and by granting the motion of defendants Dennis B. Chugh, M.D., SuburbanCardiology, P.C., Janerio D. Aldridge, M.D., Buffalo Thoracic Surgery Associates, P.C., MichaelJ. Krabak, M.D., Century Medical Associates, P.C. and Pamela L. Stevens, M.D. in part anddismissing the complaint and cross claims against defendants Michael J. Krabak, M.D., CenturyMedical Associates, P.C. and Pamela L. Stevens, M.D. and as modified the order is affirmedwithout costs.
Memorandum: Plaintiff, as executrix of the estate of Stanley G. Cygan, Jr. (decedent),commenced this medical malpractice and wrongful death action alleging, inter alia, that certaindefendants failed to perform or to permit other defendants to perform surgery for decedent's heartcondition and failed to obtain and provide necessary medication to permit that surgery to go[*2]forward. Defendants contend on appeal that Supreme Courterred in denying their respective motions for summary judgment dismissing the complaint andcross claims against them.
We note at the outset that the first and second causes of action properly sound only inmedical malpractice rather than ordinary negligence. A cause of action "sounds in medicalmalpractice rather than ordinary negligence where the challenged conduct 'constitutes medicaltreatment or bears a substantial relationship to the rendition of medical treatment by a licensedphysician' " (Toepp v Myers Community Hosp., 280 AD2d 921 [2001], quotingBleiler v Bodnar, 65 NY2d 65, 72 [1985]; see Megally v LaPorta, 253 AD2d 35,39-40 [1998]). Here, the first and second causes of action seek to recover for acts that"constituted an integral part of the process of rendering medical treatment" to decedent and thusmust be characterized as causes of action for medical malpractice only (Scott v Uljanov,74 NY2d 673, 675 [1989]).
With respect to the third cause of action, we further note that, as plaintiff correctly concedes,Public Health Law § 2805-b "provides no basis for an action to recover money damages"(Quijije v Lutheran Med. Ctr., 92 AD2d 935 [1983], appeal dismissed 59 NY2d1025 [1983]), nor is there a cause of action against a private physician under the EmergencyMedical Treatment and Active Labor Act ([EMTALA] 42 USC § 1395dd; seeDiGicomo v St. Joseph's Hosp. & Health Ctr., 182 AD2d 1106 [1992]; Reynolds vMercy Hosp., 861 F Supp 214, 220-221 [1994]). Plaintiff thus correctly concedes that thecourt erred in denying the motion of defendants Kaleida Health and Arthur E. Orlick, M.D.(collectively, Kaleida defendants) for summary judgment dismissing those parts of the thirdcause of action. We agree with the Kaleida defendants that the court also should have grantedthat part of their motion with respect to the remainder of that cause of action. "Pursuant toEMTALA, a hospital must provide an appropriate medical screening examination of anindividual presented to the hospital's emergency medical department to determine whether anemergency medical condition exists" (Lear v Genesee Mem. Hosp., 254 AD2d 707, 708[1998], lv dismissed 92 NY2d 1045 [1999]). Here, the third cause of action does notallege that decedent was present in a hospital emergency room or in transit thereto during theperiods of time at issue in this action, and thus the court was required to dismiss that claim aswell. We therefore modify the order accordingly.
We also agree with the Kaleida defendants that the court erred in denying that part of theirmotion with respect to the cause of action for gross negligence and the claim for punitivedamages. Here, the negligence alleged "does not approach the [requisite] level of grossindifference to patient care necessary to support" such a cause of action and claim (Pascazi vPelton, 210 AD2d 910, 910 [1994]; see Gauger v Ghaffari, 8 AD3d 968 [2004]). We therefore furthermodify the order accordingly.
Contrary to the further contention of the Kaleida defendants, however, the court properlydenied that part of their motion with respect to the medical malpractice cause of action againstthem. The Kaleida defendants are correct that liability for medical malpractice may not beimposed absent a physician-patient relationship, either express or implied, because "there is nolegal duty in the absence of such a relationship" (Garofalo v State of New York, 17 AD3d 1109, 1110 [2005], lvdenied 5 NY3d 707 [2005]; see Gedon v Bry-Lin Hosps., 286 AD2d 892, 893-894[2001], lv denied 98 NY2d 601 [2002]; Hickey v Travelers Ins. Co., 158 AD2d112, 116 [1990]). Such a relationship, however, "is created when the professional services of aphysician are rendered to and accepted by another person for the purposes of medical or surgicaltreatment" (Lee v City of New York, 162 AD2d 34, 36 [1990], lv denied 78NY2d 863 [1991]; see Zimmerly v Good Samaritan Hosp., 261 AD2d 614 [1999]).
Although the Kaleida defendants met their initial burden with respect to the medicalmalpractice cause of action against them by submitting the deposition testimony of Orlick inwhich he stated that he did not have a physician-patient relationship with decedent, plaintiff[*3]raised an issue of fact by submitting evidence that tended toestablish that Orlick, as director of cardiac surgery for Kaleida Health, affirmatively directed thecancellation of decedent's previously scheduled surgery. Liability may be imposed uponnontreating physicians in "situations of joint action in diagnosis or treatment or some control ofthe course of treatment of one by the other" (Graddy v New York Med. Coll., 19 AD2d426, 429 [1963]; see generally Kavanaugh v Nussbaum, 71 NY2d 535, 547 [1988]).Here, "the record contains evidence that [Orlick] had 'more than an informal interest andinvolvement in [decedent]'s condition' . . . and thus there is an issue of factconcerning [Orlick]'s level of participation in [decedent]'s treatment" (Campbell v Haber,274 AD2d 946, 947 [2000]).The remaining defendants (collectively, treating physicians) contend on appeal that the courterred in denying those parts of their motion with respect to the medical malpractice cause ofaction against them, as well as the fifth cause of action, for wrongful death, against them. Weagree in part. The treating physicians met their initial burden on their motion by establishing thatthey acted in accordance with accepted standards of medical practice in the field of cardiac care(see generally Santangelo v Crouse Med. Group, 209 AD2d 942 [1994], appealdismissed 85 NY2d 905 [1995]), thereby shifting the burden to plaintiff "to respond withrebutting medical evidence demonstrating a departure from accepted medical procedures"(Whalen v Victory Mem. Hosp., 187 AD2d 503 [1992]). We conclude, however, thatplaintiff submitted expert medical proof in opposition to the motion raising a triable issue of factwhether defendants Dennis B. Chugh, M.D., Suburban Cardiology, P.C., Janerio D. Aldridge,M.D. and Buffalo Thoracic Surgery Associates, P.C. committed medical malpractice, and thusthe court properly denied the motion of the treating physicians for summary judgment dismissingthe first and fifth causes of action against those defendants. Plaintiff failed, however, to submitevidence raising a triable issue of fact with respect to the remaining treating physicians, and wetherefore conclude that the court erred in denying those parts of the motion of the treatingphysicians for summary judgment dismissing the complaint and cross claims against theremaining treating physicians. We therefore further modify the order accordingly.
We have reviewed defendants' remaining contentions and conclude that they are withoutmerit. Present—Scudder, P.J., Smith, Centra, Peradotto and Pine, JJ.