| Dengler v Posnick |
| 2011 NY Slip Op 02551 [83 AD3d 1385] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| Doreen Dengler et al., Respondents-Appellants, v Steven J.Posnick, M.D., Appellant-Respondent, and Highland Hospital et al.,Respondents. |
—[*1] Lacy Katzen LLP, Rochester (Peter T. Rodgers of counsel), forplaintiffs-respondents-appellants. Ward Greenberg Heller & Reidy LLP, Rochester (Daniel P. Purcell of counsel), fordefendants-respondents.
Appeal and cross appeal from an order and judgment (one paper) of the Supreme Court,Monroe County (John J. Ark, J.), entered November 12, 2009 in a medical malpractice action.The order and judgment, inter alia, granted plaintiffs' motion for partial summary judgment onliability against defendant Steven J. Posnick, M.D. and granted the cross motion of defendantsHighland Hospital, University of Rochester and Strong Partners Health Systems, Inc. forsummary judgment dismissing the complaint against them.
It is hereby ordered that the order and judgment so appealed from is unanimously modifiedon the law by denying that part of plaintiffs' motion seeking partial summary judgment onliability against defendant Steven J. Posnick, M.D., and as modified the order and judgment isaffirmed without costs.
Memorandum: Plaintiffs commenced this medical malpractice action to recover damages fora burn injury sustained by Doreen Dengler (plaintiff) while she was undergoing arthroscopicsurgery on her right shoulder. Defendant Steven J. Posnick, M.D. was plaintiff's privatephysician, and he performed the surgery at defendant Highland Hospital. Posnick was assisted bya surgical resident and nursing staff, all of whom were employed by Highland Hospital, whichwas owned, operated or controlled by defendants University of Rochester and Strong PartnersHealth Systems, Inc. (collectively, Hospital defendants). Posnick and the surgical residentconceded that the burn occurred during surgery and that it was "most likely" caused by theoverheating of an instrument. Both physicians denied that they were negligent and contended thatthe instrument was defective. Plaintiffs moved for partial summary judgment on liability basedon the theory of res ipsa loquitur. Posnick cross-moved for summary judgment dismissing [*2]the complaint against him, and the Hospital defendantscross-moved for summary judgment dismissing the complaint against them. Supreme Courtgranted that part of plaintiffs' motion with respect to Posnick, denied Posnick's cross motion andgranted the Hospital defendants' cross motion.
We agree with Posnick on his appeal that the court erred in granting that part of plaintiffs'motion with respect to him, and we therefore modify the order and judgment accordingly. "InNew York it is the general rule that submission of the case on the theory of res ipsa loquitur iswarranted only when the plaintiff can establish the following elements: (1) the event must be of akind [that] ordinarily does not occur in the absence of someone's negligence; (2) it must becaused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) itmust not have been due to any voluntary action or contribution on the part of the plaintiff"(Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986] [internal quotationmarks omitted]; see Morejon v RaisConstr. Co., 7 NY3d 203, 209 [2006]; Kambat v St. Francis Hosp., 89 NY2d489, 494 [1997]). "Res ipsa loquitur does not create a presumption in favor of the plaintiff butmerely permits the inference of negligence to be drawn from the circumstance of the occurrence. . . The rule has the effect of creating a prima facie case of negligence sufficient forsubmission to the jury, and the jury may—but is not required to—draw thepermissible inference" (Dermatossian, 67 NY2d at 226; see Morejon, 7 NY3d at209). "[O]nly in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment. . . That would happen only when the plaintiff's circumstantial proof is soconvincing and the defendant's response so weak that the inference of defendant's negligence isinescapable" (Morejon, 7 NY3d at 209; see Lau v Ky, 63 AD3d 801 [2009]; Simmons v Neuman, 50 AD3d666 [2008]).
Here, the evidence submitted by plaintiffs in support of their motion established that theinference of negligence is not inescapable and that this is not "the exceptional case in which nofacts are left for determination" (Morejon, 7 NY3d at 212; see Champagne v Peck, 59 AD3d1130 [2009]; cf. Thomas v New York Univ. Med. Ctr., 283 AD2d 316 [2001];Salter v Deaconess Family Medicine Ctr. [appeal No. 2], 267 AD2d 976 [1999]). The burdenthus never shifted to defendants to raise a triable issue of fact, and we do not address plaintiffs'contentions concerning the sufficiency of Posnick's opposing papers (see generally Winegradv New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Contrary to the further contention of Posnick, however, the court properly denied his crossmotion seeking summary judgment dismissing the complaint against him because, "[o]nce aplaintiff's proof establishes the . . . three [elements of res ipsa loquitur], a primafacie case of negligence exists and plaintiff is entitled to have res ipsa loquitur charged to thejury" (Kambat, 89 NY2d at 494).
We reject the contention of plaintiffs on their cross appeal that the court erred in granting thecross motion of the Hospital defendants for summary judgment dismissing the complaint againstthem. "As a general rule, a hospital will not be held vicariously liable for the malpractice of atreating physician who is not an employee of the hospital" (Litwak v Our Lady of VictoryHosp. of Lackawanna, 238 AD2d 881, 881 [1997]; see generally Hill v St. Clare'sHosp., 67 NY2d 72, 79 [1986]; Lorenzo v Kahn, 74 AD3d 1711, 1712-1713 [2010]), and "ahospital is protected from liability where its professional staff follows the orders of privatephysicians selected by the patient" (Litwak, 238 AD2d at 882 [internal quotation marksomitted]; see Lorenzo, 74 AD3d at 1712-1713; Nagengast v Samaritan Hosp.,211 AD2d 878, 880 [1995]). "The only recognized exception is where the hospital staff knowsthat the . . . [physician's] orders are so clearly contraindicated by normal practicethat ordinary prudence requires inquiry into the correctness of the orders" (Nagengast,211 AD2d at 880 [internal quotation marks omitted]; see Toth v Community Hosp. at GlenCove, 22 NY2d 255, 265 n 3 [1968], rearg denied 22 NY2d 973 [1968]). Here, thereis no dispute that [*3]the resident and the nurses were followingPosnick's orders, and there is no evidence that any of Posnick's orders were clearlycontraindicated by normal practice (cf. Lorenzo, 74 AD3d at 1712-1713). Thus, theHospital defendants established their entitlement to judgment as a matter of law, and plaintiffsfailed to raise a triable issue of fact in opposition (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
We reject plaintiffs' further contention that the Hospital defendants had concurrent control ofthe instrument causing the injury (cf. Schroeder v City & County Sav. Bank of Albany,293 NY 370, 374 [1944], rearg denied 293 NY 764 [1944]). Also contrary to plaintiffs'contention, the Hospital defendants were not liable for spoliation of evidence (see generally MetLife Auto & Home v JoeBasil Chevrolet, 1 NY3d 478, 483-484 [2004]). The Hospital defendants had no duty topreserve the allegedly defective instrument inasmuch as neither Posnick nor plaintiffs offered topay the costs associated with the preservation of evidence, issued a subpoena duces tecum orobtained an order compelling preservation (see e.g. MetLife Auto & Home, 1 NY3d at483; Brown v DePuy AcroMed,Inc., 21 AD3d 1431, 1433 [2005]; cf. Millard v Alliance Laundry Sys., LLC, 20 AD3d 866, 867[2005]). Present—Scudder, P.J., Centra, Carni, Sconiers and Gorski, JJ.