| Cham v St. Mary's Hosp. of Brooklyn |
| 2010 NY Slip Op 03398 [72 AD3d 1003] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Khalid Cham et al., Appellants, v St. Mary's Hospital ofBrooklyn, Respondent, et al., Defendant. |
—[*1] Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and ScottFusaro of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appealfrom an order of the Supreme Court, Kings County (Dabiri, J.), dated November 10, 2008, whichgranted the motion of the defendant St. Mary's Hospital of Brooklyn 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 defendant St.Mary's Hospital of Brooklyn for summary judgment dismissing the complaint insofar as assertedagainst it is denied.
The complaint alleged, inter alia, that Khalid Cham (hereinafter the infant plaintiff) suffereddebilitating birth defects as a result of the negligence of the defendant St. Mary's Hospital ofBrooklyn (hereinafter St. Mary's) and the defendant Jean Lochard, M.D. (hereinafter Dr.Lochard) during the delivery of the infant plaintiff. In its motion for summary judgment, St.Mary's asserted that the infant plaintiff's mother, Martine Eugene (hereinafter the plaintiff), wasDr. Lochard's private patient. Consequently, St. Mary's contended that it could not be held liablefor the infant plaintiff's injuries because the hospital staff appropriately executed the directives ofDr. Lochard. Further, St. Mary's argued that there were no circumstances under which St. Mary'sresident physicians and nurses, who were attending to the plaintiff, were required to question thecorrectness of Dr. Lochard's actions or orders. The Supreme Court granted St. Mary's motion forsummary judgment dismissing the complaint insofar as asserted against it. We reverse.
The order appealed from correctly articulated the applicable law. A hospital may not be heldliable for injuries suffered by a patient who is under the care of a private attending physicianchosen by the patient where the resident physicians and nurses employed by the hospital merelycarry out the orders of the private attending physician, unless the hospital staff commits"independent acts of negligence or the attending physician's orders are contradicted by normalpractice" (Cerny v Williams, 32AD3d 881, 883 [2006]; see Hill v St. Clare's Hosp., 67 NY2d 72, 79 [1986];Toth v Community Hosp. [*2]at Glen Cove, 22 NY2d255, 265 [1968]; Petty v Pilgrim,22 AD3d 478, 479 [2005]; Pearce v Klein, 293 AD2d 593 [2002]). However, underthe circumstances of this case, the Supreme Court misapplied the law.
In a medical malpractice action, the moving defendant bears the burden of proving theabsence of any departure from good and accepted standards of medical practice, or even in thepresence of said departures that the plaintiff was injured thereby (see Swezey v MontagueRehab & Pain Mgt., P.C., 59 AD3d 431, 433 [2009]; Larsen v Loychusuk, 55 AD3d560 [2008]). In pursuance of its prima facie burden of proof, the moving defendant isrequired to address the factual allegations set forth in the plaintiffs' bill of particulars withreference to the moving defendant's alleged acts of negligence and the injuries suffered withcompetent medical proof (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986];Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). It is only after themovant has carried its prima facie burden that the nonmoving party is required to submitcompetent proof in opposition for the purpose of establishing the presence of material issues offact (id.).
Here, St. Mary's failed to establish its prima facie entitlement to judgment as a matter of law.In support of its motion for summary judgment, St. Mary's submitted, inter alia, an affidavit fromits expert, Dr. Henry Prince, who focused almost entirely on the fact that the plaintiff was Dr.Lochard's patient. This was not a matter in contention, nor was it a dispositive fact, as theallegations in the plaintiffs' bill of particulars were not so limited. A review of Dr. Prince'saffidavit reveals that he limited his record references exclusively to the treatment, notes, findingsand orders made by Dr. Lochard. Nevertheless, Dr. Prince opined that "there is no evidence ofany negligence by the St. Mary's Hospital of Brooklyn staff . . . [and]. . . [that they] appropriately executed the directives of the private attendingphysician . . . [and] that there is no act that the St. Mary's Hospital of Brooklynstaff committed or omitted that is causally related to the injuries alleged." However, in renderinghis opinion, Dr. Prince did not make a single reference to the treatment rendered, examinationsperformed, or observations made by the hospital resident physicians or the members of thenursing staff pursuant to Dr. Lochard's orders, except for the nursing note documenting thetransfer of the plaintiff to the delivery room. Moreover, in his conclusion on the issue ofcausation, Dr. Prince made no reference to the specific injuries alleged in the bill of particulars.Further, Dr. Prince's assertion that "[t]he plaintiff's allegations regarding the labor and deliveryplainly relate to the conduct of the private attending obstetrician, Dr. Lochard, and not those ofSt. Mary's . . . , as Dr. Lochard managed, supervised and participated in all phasesof the actual delivery" is plainly contradicted by the bill of particulars and the medical records.
Since Dr. Prince failed to address all of the significant factual allegations of the bill ofparticulars and his opinion is plainly contradicted by the facts in the record, and since he failedto articulate the facts with reference to the management of the plaintiff's care by the hospital staffupon which he based his opinion, Dr. Prince's affidavit was conclusory as to both the issues ofmedical negligence and causation, and thereby insufficient to establish St. Mary's prima facieentitlement to summary judgment (seeSavage v Franco, 35 AD3d 581, 583 [2006]; Johnson v Queens-Long Is. Med. Group, P.C., 23 AD3d 525, 527[2005]; Hutchinson v Bernstein, 22AD3d 527 [2005]; Williams v Howe, 297 AD2d 671, 673 [2002]; Brosnan vShafron, 278 AD2d 442 [2000]; Cicolello v Limb, 216 AD2d 434 [1995]). In lightof St. Mary's failure to meet its prima facie burden, we need not address the sufficiency of theplaintiffs' opposing papers (see Vera vSoohoo, 41 AD3d 586, 588 [2007]; see generally Alvarez v Prospect Hosp., 68NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).Skelos, J.P., Dickerson, Lott and Roman, JJ., concur.