| Lorenzo v Kahn |
| 2010 NY Slip Op 05041 [74 AD3d 1711] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| Dawn M. Lorenzo et al., Respondents, v Kenneth R. Kahn, M.D.,et al., Appellants. |
—[*1] Gibson, McAskill & Crosby, LLP, Buffalo (Mark Spitler and Katherine E. Wild of counsel),for defendants-appellants Liang Bartkowiak, M.D. and Children's Hospital of Buffalo. Roland M. Cercone, PLLC, Buffalo (Roland M. Cercone of counsel), forplaintiffs-respondents.
Appeals from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), enteredJanuary 14, 2009 in a medical malpractice action. The order, insofar as appealed from, denied inpart the motions of defendants for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is modified on the law by granting thoseparts of the motion of defendants Liang Bartkowiak, M.D. and Children's Hospital of Buffaloseeking summary judgment dismissing the first causes of action against them except insofar asthose causes of action, as amplified by the bill of particulars, allege that defendant LiangBartkowiak, M.D. failed to intervene when directed to perform a midline episiotomy and seekingsummary judgment dismissing the second causes of action against them and dismissing the firstcauses of action to that extent against those defendants and dismissing the second causes ofaction against those defendants; and by granting those parts of the motion of defendants KennethR. Kahn, M.D. and University Gynecologists & Obstetricians, Inc. seeking summary judgmentdismissing the second causes of action against them insofar as those causes of action, asamplified by the bill of particulars, allege that those defendants failed to obtain the informedconsent of plaintiff Dawn M. Lorenzo for a vaginal delivery and for care and treatment by amedical resident and dismissing those causes of action to that extent against those defendants,and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this medical malpractice action asserting individualcauses of action against each defendant. In the first causes of action asserted against each [*2]defendant, plaintiffs alleged that the respective defendants werenegligent in their care and treatment of Dawn M. Lorenzo (plaintiff) while she was hospitalizedfor the birth of plaintiffs' child. Plaintiffs alleged in the second causes of action asserted againsteach defendant, as amplified by the bills of particulars, that the respective defendants failed toobtain the informed consent of plaintiff for a vaginal delivery instead of a cesarean section; forcare and treatment by a medical resident; for an episiotomy; and for the use of forceps duringdelivery. Defendant Kenneth R. Kahn, M.D. is employed by defendant University Gynecologists& Obstetricians, Inc. (collectively, UGO defendants), and he supervised defendant LiangBartkowiak, M.D., a medical resident employed by defendant Children's Hospital of Buffalo(collectively, Hospital defendants), during the birth of plaintiffs' child. It is undisputed that anepisiotomy was performed on plaintiff during the course of the birth and that the child's birth waseffectuated with the use of forceps. The Hospital defendants appeal from an order insofar as itdenied those parts of their motion seeking summary judgment dismissing the first and secondcauses of action asserted against them, and the UGO defendants appeal from the same orderinsofar as it denied those parts of their motion seeking summary judgment dismissing the secondcauses of action asserted against them.
Addressing first the motion of the Hospital defendants, we note that it is well settled that,"[i]n general, a hospital may not be held vicariously liable for the malpractice of a privateattending physician who is not an employee, and may not be held concurrently liable unless itsemployees committed independent acts of negligence or the attending physician's orders werecontraindicated by normal practice such that ordinary prudence required inquiry into thecorrectness of [the attending physician's orders]" (Toth v Bloshinsky, 39 AD3d 848, 850 [2007]). Likewise, "[a]resident who assists a doctor during a medical procedure, and who does not exercise anyindependent medical judgment, cannot be held liable for malpractice so long as the doctor'sdirections did not so greatly deviate from normal practice that the resident should be held liablefor failing to intervene" (Soto vAndaz, 8 AD3d 470, 471 [2004]; see Muniz v Katlowitz, 49 AD3d 511, 513 [2008]). Although theHospital defendants established their entitlement to judgment as a matter of law with respect tothe first causes of action against them, we nevertheless conclude that plaintiffs raised an issue offact insofar as those causes of action, as amplified by the bill of particulars, allege that Dr.Bartkowiak was negligent in failing to intervene when Dr. Kahn directed her to perform amidline episiotomy. Supreme Court erred, however, in failing to dismiss the remaining claims ofnegligence against the Hospital defendants set forth in the first causes of action against them, andwe therefore modify the order accordingly.
With respect to the second causes of action against the Hospital defendants, alleging thatthey failed to obtain plaintiff's informed consent (see Public Health Law § 2805-d[1]), we conclude that the court erred in denying those parts of the motion of the Hospitaldefendants with respect to the second causes of action against them, and we therefore furthermodify the order accordingly. Indeed, "[l]ack of informed consent means the failure of theperson providing the professional treatment . . . to disclose to the patient suchalternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonablemedical . . . practitioner under similar circumstances would have disclosed"(id.) and, here, Dr. Kahn was the person providing the professional treatment to plaintiff(see Brandon v Karp, 112 AD2d 490, 492-493 [1985]).
With respect to the motion of the UGO defendants insofar as it sought summary judgmentdismissing the second causes of action against them, we conclude that the court properly deniedthose parts of the motion insofar as the UGO defendants failed to establish their entitlement tojudgment as a matter of law with respect to the use of forceps during delivery, and plaintiffsraised issues of fact whether those defendants failed to disclose the alternatives to and thereasonably foreseeable risks and benefits of an episiotomy (§ 2805-d [1]); whether areasonably prudent person in plaintiff's position would have consented to the use of forceps ifshe had been [*3]fully informed (cf. Brandon, 112 AD2dat 492); and whether the lack of informed consent was a proximate cause of plaintiff's injuries(see § 2805-d [3]). We further conclude, however, that the court should havegranted those parts of the motion of the UGO defendants with respect to the second causes ofaction against them, insofar as those causes of action, as amplified by the bill of particulars,allege that the UGO defendants failed to obtain the informed consent of plaintiff for a vaginaldelivery and for her care and treatment by a medical resident. We therefore further modify theorder accordingly.
Scudder, P.J., and Lindley, J., concur; Peradotto, J., concurs in the result and dissents in partin accordance with the following memorandum.
Peradotto, J. (concurring in part and dissenting in part). I respectfully dissent in part because,in my view, Supreme Court erred in denying those parts of the motion of defendants Kenneth R.Kahn, M.D. and University Gynecologists & Obstetricians, Inc. (collectively, UGO defendants)seeking summary judgment dismissing the informed consent causes of action against theminsofar as those causes of action, as amplified by the bill of particulars, are premised upon theperformance of an episiotomy.
The UGO defendants established their entitlement to judgment as a matter of law withrespect to plaintiffs' informed consent causes of action by establishing that Dawn M. Lorenzo(plaintiff) consented to the performance of an episiotomy after being informed of the risks andbenefits of, as well as any alternatives to, that procedure (see Public Health Law §2805-d [1]; Bengston v Wang, 41AD3d 625, 626 [2007]; Ericson vPalleschi, 23 AD3d 608 [2005]; Lucenti v St. Elizabeth Hosp., 289 AD2d 983[2001]). In support of their motion, the UGO defendants submitted a "Surgical Procedure(s)Request" form, signed by plaintiff, which provided that plaintiff consented to the followingprocedures: "Vaginal delivery, possible Cesarian Section, possible episiotomy." The form furtherstated that "[t]he nature and purpose of the operation(s) or the procedure(s) to treat the statedcondition, its likelihood for success, alternative options (if any), the possible risks, consequencesand effects associated with the operation(s) related to the procedure(s), . . . and thepossibility of complications even during recuperation have been fully explained to me."
In opposition to the motion of the UGO defendants, plaintiffs failed to raise a triable issue offact whether a reasonably prudent patient would have withheld consent to the performance of anepisiotomy had the risks been explained (see Orphan v Pilnik, 66 AD3d 543, 544 [2009]). Plaintiffs' expertmerely opined that "[plaintiff], in her position, definitely would not have given consent" to theperformance of an episiotomy by a resident. In any event, an expert's opinion of what aparticular patient would or would not have done is insufficient to raise an issue of fact withrespect to informed consent (see id.). Indeed, the relevant standard to be applied ininformed consent cases is "not a subjective one to be asserted after the medical procedure hasbeen performed; it is objective and measured by what a reasonably prudent person in thispatient's circumstances, having sufficient knowledge of the risks incident to the surgicalprocedures would have decided at that time" (Dries v Gregor, 72 AD2d 231, 236[1980]). Significantly, although plaintiffs' expert discussed some of the risks involved in theperformance of an episiotomy, he did not opine that those risks were unreasonable or that suchrisks would not have been undertaken by a reasonably prudent and informed patient under thecircumstances presented.
I therefore would further modify the order by granting those parts of the motion of the UGOdefendants seeking summary judgment dismissing the second causes of action against theminsofar as those causes of action, as amplified by the bill of particulars, allege that thosedefendants failed to obtain the informed consent of plaintiff for an episiotomy and dismissingthose causes of action to that extent against those defendants.
Gorski, J., dissents in part in accordance with the following memorandum.
Gorski, J. (dissenting in part). I respectfully dissent in part. With respect to the potentialliability in negligence of defendant [*4]Liang Bartkowiak, M.D.,a resident, I agree with the majority that there is an issue of fact whether the performedprocedure so "greatly deviate[d] from normal practice that the resident should be held liable forfailing to intervene" (Soto v Andaz,8 AD3d 470, 471 [2004]). I further conclude, however, that there is also an issue of factwhether Dr. Bartkowiak committed acts of negligence for which she can be held personallyliable despite her status as a resident. As the majority notes in quoting from Soto, "[a]resident who assists a doctor during a medical procedure, and who does not exercise anyindependent medical judgment, cannot be held liable for malpractice so long as the doctor'sdirections did not so greatly deviate from normal practice that the resident should be held liablefor failing to intervene" (id. at 471). Thus, a resident's shield from liability is limited tosituations in which the resident is acting under the "direct supervision" of the primaryphysician (id. [emphasis added]; see Toth v Bloshinsky, 39 AD3d 848, 850 [2007]; Filippone vSt. Vincent's Hosp. & Med. Ctr. of N.Y., 253 AD2d 616, 618-619 [1998]). The shield fromliability is not based simply on one's status as a resident but, rather, it exists because at the timeof alleged malpractice a more experienced primary physician was in a direct and immediateposition to keep a patient from harm. Where the primary physician is not in such a position,however, I see no reason why the resident should not be held responsible for his or her actions orinactions.
Here, the record establishes that Dr. Bartkowiak was overseeing the delivery of Dawn M.Lorenzo (plaintiff) hours before the primary physician, defendant Kenneth R. Kahn, M.D.,became directly involved in the birth of plaintiffs' child. In my view, it is not possible from thisrecord, which plaintiffs' expert has stated contains one of the most poorly documented deliverieshe has seen, to determine what effect the actions or inactions of Dr. Bartkowiak had on plaintiff'scondition or the decision of the primary physician to order a forceps delivery and an episiotomy.In addition, in my view it is not possible at this juncture of the litigation to parse out, as a matterof law, what actions were independently performed by Dr. Bartkowiak as opposed to the actionsthat were "direct[ly] supervis[ed]" such that it is appropriate to hold only the primary physicianliable (Soto, 8 AD3d at 471). Indeed, I am unable to determine at this juncture whetheran independent act of negligence on the part of Dr. Bartkowiak was a proximate cause ofplaintiff's injuries (cf. Filippone, 253 AD2d at 619). I therefore would affirm that part ofthe order denying those parts of the motion of Dr. Bartkowiak and defendant Children's Hospitalof Buffalo seeking summary judgment dismissing the first causes of action, for negligence,against them. Present—Scudder, P.J., Peradotto, Lindley and Gorski, JJ.