| Boston v Weissbart |
| 2009 NY Slip Op 03850 [62 AD3d 517] |
| May 14, 2009 |
| Appellate Division, First Department |
| Gladys Boston et al., Respondents, v Clyde Weissbart,M.D., et al., Defendants, and The Jack D. Weiler Hospital of the Albert Einstein College ofMedicine et al., Appellants. |
—[*1] Koss & Schonfeld, LLP, New York (Simcha D. Schonfeld of counsel), forrespondents.
Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered December 26, 2007,which, to the extent appealed from, granted plaintiffs' motion for reargument and vacated thecourt's prior order, entered July 18, 2007, and denied defendants-appellants' motion,unanimously modified, on the law, and motion granted with respect to defendant Harold Kim,M.D., and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor ofdefendant Harold Kim, M.D. dismissing the complaint as against him.
The court properly granted plaintiffs' motion for reargument (see Sheridan v Very, Ltd., 56 AD3d305, 306 [2008], citing Sciascia v Nevins, 130 AD2d 649, 650 [1987]). Plaintiffs'expert's affirmation was not merely conclusory, relying as it did on the medical records to drawconclusions (compare Margolese v Uribe, 238 AD2d 164 [1997]). Upon reargument, thecourt properly found a triable issue of material fact regarding whether plaintiff's breathing wasseverely compromised, necessitating an emergency tracheotomy, or, as plaintiffs' expertaffirmed, no emergency existed and defendants should have made a second attempt at intubation,performed by a qualified anesthesiologist under a sedative instead of local anesthesia, to exploreplaintiff's complaints. Moreover, issues of fact exist as to whether the emergency tracheotomywas properly performed when the endotracheal tube was placed through the vocal cords.Plaintiffs' expert affirmed that a tracheotomy should not involve the vocal cords, and, if therewere an emergency, defendants should have made "an incision . . . in the trachea ora cycoidthyroidotomy should [have been] performed which would involve an incision avoidingthe vocal cords." The conflicting opinions of the parties' experts raise issues of fact (see Cruz v St. Barnabas Hosp., 50AD3d 382 [2008]).
There are no issues of fact as to whether defendant Dr. Kim may be held liable. "A residentwho assists a doctor during a medical procedure, and who does not exercise any independentmedical judgment, cannot be held liable for malpractice so long as the doctor's directions did[*2]not so greatly deviate from normal practice that the residentshould be held liable for failing to intervene" (Soto v Andaz, 8 AD3d 470, 471 [2004]; Buchheim vSanghavi, 299 AD2d 229 [2002], lv denied 100 NY2d 506 [2003]).Concur—Mazzarelli, J.P., Saxe, Nardelli and Freedman, JJ.