| Vaccaro v St. Vincent's Med. Ctr. |
| 2010 NY Slip Op 02547 [71 AD3d 1000] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Barbara Vaccaro et al., Appellants, v St. Vincent's MedicalCenter et al., Respondents, et al., Defendant. |
—[*1] Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), forrespondents St. Vincent's Medical Center, Lilibeth Rubio-Gonzales, and Dorotea DeFrancesco. Garbarini & Scher, P.C., New York, N.Y. (William D. Buckley of counsel), for respondentsHealthcare Associates in Medicine, P.C., Neuroscience Associates of N.Y., and SharonOsborn.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appealfrom (1) an order of the Supreme Court, Richmond County (McMahon, J.), dated December 27,2007, which granted the motion of the defendants St. Vincent's Medical Center, LilibethRubio-Gonzales, and Dorotea DeFrancesco, and the separate motion of the defendantsHealthcare Associates in Medicine, P.C., Neuroscience Associates of N.Y., and Sharon Osbornfor summary judgment dismissing the complaint insofar as asserted against them, and (2) ajudgment of the same court dated February 8, 2008, which, upon the order, is in favor of thosedefendants and against them dismissing the complaint insofar as asserted against thosedefendants.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereofdismissing the complaint insofar as asserted against the defendants St. Vincent's Medical Center,Lilibeth Rubio-Gonzales, Healthcare Associates in Medicine, P.C., Neuroscience Associates ofN.Y., and Sharon Osborn; as so modified, the judgment is affirmed insofar as appealed from,those branches of the motion of the defendants St. Vincent's Medical Center and LilibethRubio-Gonzales which were for summary judgment dismissing the complaint insofar as assertedagainst them and the separate motion of the defendants Healthcare Associates in Medicine, P.C.,Neuroscience Associates of N.Y., and Sharon Osborn for summary judgment dismissing thecomplaint insofar as asserted against them are denied, the order dated December 27, 2007, ismodified accordingly, the complaint is reinstated against those defendants, and the action againstthe defendant Dorotea DeFrancesco is severed; and it is further,
Ordered that one bill of costs is awarded to the defendant Dorotea DeFrancesco, payable bythe plaintiffs, and one bill of costs is awarded to the plaintiffs, payable by the defendants St.[*2]Vincents's Medical Center, Lilibeth Rubio-Gonzales,Healthcare Associates in Medicine, P.C., Neuroscience Associates of N.Y., and Sharon Osborn.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
On November 5, 2001, the plaintiff Barbara Vaccaro (hereinafter Vaccaro) underwent aC4-C5 posterior foraminotomy decompression at the defendant St. Vincent's Medical Center(hereinafter the Hospital). The surgery was performed by the defendant John Sou-Cheng Shiau,M.D. (hereinafter Dr. Shiau), who was assisted by the defendant Lilibeth Rubio-Gonzales, M.D.,an anesthesiologist (hereinafter Dr. Rubio-Gonzales), the defendant Dorotea DeFrancesco, acertified physician's assistant, and other members of the Hospital's staff. Also present was thedefendant Sharon Osborn, a somatosensory evoked potentials (hereinafter SSEP) technician whowas employed by the defendant Neuroscience Associates of N.Y. (hereinafter Neuroscience),and who, at the time of Vaccaro's surgery, was employed by Neuroscience's predecessor, thedefendant Healthcare Associates in Medicine, P.C. (hereinafter Healthcare). Immediately afterthe surgery was performed, Vaccaro was unable to move her upper or lower extremities. She waslater diagnosed with a spinal cord contusion, resulting in quadriparesis.
The plaintiffs alleged, inter alia, that had SSEP monitoring been performed, or properlyperformed, during the surgery, Vaccaro would not have sustained, among other things, a spinalcord contusion. The plaintiffs also alleged that the Hospital negligently permitted Dr. Shiau toperform this cervical spine surgery utilizing the "Met-RX procedure."
The Supreme Court properly awarded summary judgment dismissing the complaint insofaras asserted against DeFrancesco. DeFrancesco demonstrated her prima facie entitlement tojudgment as a matter of law by presenting the expert affirmation of a neurosurgeon, who opinedthat she appropriately followed the orders of Dr. Shiau, Vaccaro's private attending physician,that those orders were not contraindicated by normal practice, and that she did not commit anyindependent acts of negligence (see Martinez v La Porta, 50 AD3d 976, 977 [2008]). Inopposition, the expert affirmations submitted by the plaintiffs were insufficient to raise a triableissue of fact as to whether DeFrancesco should have known that any order or decision of Dr.Shiau's was "so contraindicated by normal practice that [she] should have inquired into [its]correctness" (Ventura v Beth Israel Med. Ctr., 297 AD2d 801, 803 [2002]), or that anyindependent act of negligence on her part proximately caused Vaccaro's injuries.
However, the Supreme Court erred in granting that branch of the Hospital's motion whichwas for summary judgment dismissing the complaint insofar as asserted against it. Initially, wenote that the record contains conflicting evidence as to whether SSEP monitoring was actuallyperformed during the surgery. The hospital record, operative report, and Dr. Rubio-Gonzalez'stestimony all support the conclusion that SSEP monitoring was performed throughout thesurgery. However, the deposition testimony of Dr. Shiau and Osborn is to the contrary. Dr. Shiautestified that SSEP monitoring was not necessary "in a case like this" and that he neitherintended to, nor did, have such monitoring conducted during the surgery, his operative reportstating that SSEP monitoring was performed throughout the surgery notwithstanding. Osborntestified that while she attempted to use the SSEP machine made available to her at the Hospitalto monitor Vaccaro, attached the electrodes to Vaccaro, and remained in the operating room forabout 30 minutes after Vaccaro was anesthetized, when she was unable to obtain a baselinereading for Vaccaro, Dr. Shiau told her to "wrap it up," at which point she left the operatingroom.
The plaintiffs' anesthesiology expert opined that Vaccaro's surgery required SSEPmonitoring and the Hospital had an obligation to ensure that a properly working SSEPmonitoring machine was "readily available in the operating room." The plaintiffs' neurosurgeryexpert concurred. Accordingly, since the Hospital did not demonstrate the absence of any issuesof fact as to whether its alleged failure to provide SSEP monitoring was a deviation from theacceptable standard of care, it did not meet its prima facie burden of establishing its entitlementto judgment as a matter of law with respect to that theory of liability (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851 [1985]).[*3]
Moreover, the Hospital failed to demonstrate itsentitlement to judgment as a matter of law with respect to the plaintiffs' claim that it negligentlypermitted Dr. Shiau to utilize the Met-RX procedure in performing the surgery. Initially,contrary to the Hospital's contention, this theory of liability was originally asserted in theoriginal complaint and amplified in the bill of particulars. The Hospital demonstrated its primafacie entitlement to judgment as a matter of law by submitting the affirmation of its neurosurgeryexpert, who opined that the Hospital did not erroneously permit Dr. Shiau to utilize the Met-RXprocedure because it was FDA approved, and the decision to use it was "within the sole provinceof the operating surgeon." In opposition, however, the plaintiffs raised a triable issue of factthrough, inter alia, Dr. Shiau's deposition testimony that the Hospital permitted him to use thesystem, but never inquired into his background and training with the procedure, and that he hadused the system in cervical spine surgery only once or twice before, as well as the affirmation ofthe plaintiffs' neurosurgery and anesthesiology experts, who opined that the Hospital failed toundertake due diligence in determining whether Dr. Shiau had the requisite training andexperience to utilize the procedure in cervical spinal surgery.
The Supreme Court also erred in awarding summary judgment dismissing the complaintinsofar as asserted against Dr. Rubio-Gonzales. Dr. Rubio-Gonzales demonstrated her primafacie entitlement to judgment as a matter of law by submitting the affirmation of Dr. ElizabethFrost, an anesthesiologist. Dr. Frost opined, based on her review of the record herein andVaccaro's medical records, that Dr. Rubio-Gonzales's administration of anesthesia fullyconformed with accepted medical practice. In opposition to her prima facie showing, theplaintiffs submitted the expert affirmation of an unidentified anesthesiologist, who opined thatSSEP monitoring was required because the surgery involved a risk of injury to the spinal cord,that both Dr. Shiau and Dr. Rubio-Gonzales knew that it was required, and that, if the monitorwas not working, both Dr. Shiau and Dr. Rubio-Gonzales had an obligation to cancel thesurgery. In the expert's opinion, the failure of these two physicians to cancel the surgery underthose conditions constituted a departure from the acceptable standard of care. Specifically, withrespect to Dr. Rubio-Gonzales, the expert stated, "[it] is . . . the attendinganesthesiologist's responsibility to familiarize himself/herself with the demands of a particularsurgery especially when the surgery is going to be performed with novel, and fundamentallylimiting equipment, and to stop the surgeon from performing an elective procedure whennecessary monitoring equipment is not being used." Therefore, the plaintiffs raised a triable issueof fact as to whether Dr. Rubio-Gonzales should have intervened if Dr. Shiau proceeded withoutSSEP monitoring (see Warney v Haddad, 237 AD2d 123, 123-124 [1997]).
The Supreme Court also erroneously granted the motion of Healthcare, Neuroscience, andOsborn (hereinafter collectively the Healthcare defendants) for summary judgment dismissingthe complaint insofar as asserted against them based upon its conclusions that SSEP monitoringwas not conducted during the surgery and that Osborn had no duty to independently determinewhether SSEP monitoring should be performed on a patient. Contrary to the Healthcaredefendants' contention that no monitoring took place, as noted above, a factfinder couldreasonably determine that SSEP monitoring was performed, and the plaintiffs alleged that, if themonitoring was performed, Osborn performed it in a negligent manner, which represented adeviation from the accepted standard of care and proximately caused Vaccaro's injury. Since theHealthcare defendants did not address the allegation that Osborn negligently performed themonitoring, they failed to establish their prima facie entitlement to judgment as a matter of law.
Accordingly, the Supreme Court should have denied those branches of the Hospital and Dr.Rubio Gonzalez's motion which were for summary judgment dismissing the complaint insofar asasserted against them, and the Healthcare defendants' motion for the same relief. Rivera, J.P.,Dillon, Belen and Hall, JJ., concur. [Prior Case History: 18 Misc 3d 1112(A), 2007 NY SlipOp 52499(U).]