| Bellafiore v Ricotta |
| 2011 NY Slip Op 02822 [83 AD3d 632] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Karen Bellafiore, Appellant, v John Joseph Ricotta et al.,Defendants, and Daniel Jay Char et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Peter H. Schiff and Michael S.Buskus of counsel), for respondents.
In an action to recover damages for medical malpractice and wrongful death, etc., theplaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, SuffolkCounty (Spinner, J.), dated August 21, 2009, as granted the motion of the defendants Daniel JayChar, Denise Ortega, and Mohammed Alam for summary judgment dismissing the complaintinsofar as asserted against them. Justice Miller has been substituted for the late Justice Fisher(see 22 NYCRR 670.1 [c]).
Ordered that the order is affirmed insofar as appealed from, with costs.
The decedent, Dominic Bellafiore, underwent renal bypass surgery at Stony Brook UniversityMedical Center on February 13, 2002. The surgery was performed by the defendant John JosephRicotta, who was assisted by the defendants Daniel Jay Char, a vascular surgery fellow, andDenise Ortega, a surgical resident. After the surgery, there was a concern about internal bleeding,and a second surgery was performed by Ricotta, assisted by Char. Postsurgery, the decedentdeveloped complications. The decedent was seen by, among others, the defendant MohammedAlam, an infectious disease fellow, and his attending physician, for an infectious disease consult.The decedent did not recover and died on May 15, 2002.
The appellant commenced this action against numerous doctors who provided her husband'scare. The Supreme Court, inter alia, granted the motion of the defendants Char, Ortega, andAlam (hereinafter collectively the defendants) for summary judgment dismissing the complaintinsofar as asserted against them. We affirm the order insofar as appealed from.
"Although vicarious liability for medical malpractice generally turns upon agency or control,apparent or ostensible agency may also serve as a predicate for such liability" (Williams vHowe, 297 AD2d 671, 672 [2002]; see Hill v St. Clare's Hosp., 67 NY2d 72 [1986]).When supervised medical personnel are not exercising their independent medical judgment, theycannot be held liable for [*2]medical malpractice unless thedirections from the supervising superior or doctor so greatly deviates from normal medicalpractice that they should be held liable for failing to intervene (see Soto v Andaz, 8 AD3d 470[2004]; Costello v Kirmani, 54AD3d 656 [2008]; Crawford vSorkin, 41 AD3d 278 [2007]).
Here, the defendants met their prima facie burden of demonstrating that, during theirtreatment of the decedent, they did not exercise any independent medical judgment, but wereunder the direct supervision of their attending physicians, whose directions did not so greatlydeviate from normal practice that the defendants should be held liable for failing to intervene. Inopposition, the plaintiff failed to raise a triable issue of fact (see Costello v Kirmani, 54 AD3d 656 [2008]; Muniz v Katlowitz, 49 AD3d 511[2008]; Turcsik v Guthrie Clinic,Ltd., 12 AD3d 883 [2004]; Soto v Andaz, 8 AD3d 470 [2004]; cf. Pearce v Klein, 293AD2d 593 [2002]).
In light of our determination, we need not address the defendants' remaining contention.Mastro, J.P., Roman, Sgroi and Miller, JJ., concur.