| Suits v Wyckoff Hgts. Med. Ctr. |
| 2011 NY Slip Op 03894 [84 AD3d 487] |
| May 10, 2011 |
| Appellate Division, First Department |
| Angela Ruffo Suits et al., Respondents, v Wyckoff HeightsMedical Center, Appellant, and Wyckoff Emergency Medicine Services, P.C., et al.,Respondents. |
—[*1] Annette G. Hasapidis, South Salem, for Suits respondents. Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, White Plains (Terence E.Dempsey of counsel), for Wyckoff Emergency Medicine Services, P.C. and T. Abakporo, M.D.,respondents.
Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered April 20, 2009,which denied the motion of defendant Wyckoff Heights Medical Center (Wyckoff) for partialsummary judgment dismissing any independent claims against it, reversed, on the law, withoutcosts, and the motion granted to the extent of dismissing any and all claims against Wyckoffother than those alleging vicarious liability for the negligence of defendant T. Abakporo, M.D.Order, same court (Alison Y. Tuitt, J.), entered March 2, 2010, which, insofar as appealed fromas limited by the briefs, denied Wyckoff's motion to renew, unanimously dismissed, withoutcosts, as academic.
In this medical malpractice action, plaintiffs allege that plaintiff Angela Ruffo Suits(plaintiff) sought emergency medical attention at Wyckoff for a severe abrasion on the lower partof her left leg and that Wyckoff failed to provide proper treatment, causing the wound to becomeinfected and gangrenous. Pursuant to a stipulation, plaintiffs added Wyckoff EmergencyMedicine Services, P.C. (Services) and T. Abakporo, M.D., as defendants and filed an amendedcomplaint in which they alleged upon information and belief that Dr. Abakporo was the"physician on staff" when plaintiff sought treatment and that Services was "the entity that attendsto emergency services at Wyckoff."
To sustain a cause of action for medical malpractice, a plaintiff must prove a deviation ordeparture from accepted practice and that such departure was a proximate cause of the plaintiff'sinjury (see Frye v Montefiore Med.Ctr., 70 AD3d 15, 24 [2009]; Alvarado v Miles, 32 AD3d 255, 257 [2006], affd 9 NY3d902 [2007]). Thus, on a motion for partial summary judgment, the movant has the initial burdenof establishing the absence of any departure from good and [*2]accepted practice, or that the plaintiff was not injured by any departure (seeThurston v Interfaith Med. Ctr., 66 AD3d 999, 1001 [2009]). It is only after the movanthas carried its prima facie burden that the nonmoving party is required to submit competent proofin opposition for the purpose of establishing the presence of material issues of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
A hospital may not be held concurrently liable for injuries suffered by a patient who is underthe care of a private attending physician chosen by the patient where the resident physicians andnurses employed by the hospital merely carry out the orders of the private attending physician,unless the hospital staff commits "independent acts of negligence or the attending physician'sorders are contraindicated by normal practice" (Cerny v Williams, 32 AD3d 881, 883 [2006]; see also Hill v St.Clare's Hosp., 67 NY2d 72, 79 [1986]). Further, a hospital cannot ordinarily be heldvicariously liable for the malpractice of a private attending physician who is not its employeeunless a patient comes to the emergency room seeking treatment from the hospital, and not froma particular physician of the patient's choosing, and there is created an apparent or ostensibleagency by estoppel (see Schultz vShreedhar, 66 AD3d 666, 666 [2009]; Salvatore v Winthrop Univ. Med. Ctr., 36 AD3d 887, 888 [2007]).
In its post-note of issue motion, Wyckoff moved for partial summary judgment seeking thelimited relief of an adjudication "that there are no independent claims against" it. BecauseWyckoff did not move to dismiss the claims against it based on its vicarious liability for Dr.Abakporo's alleged negligence, whether as an independent contractor or employee, SupremeCourt erred when it denied the motion on the ground that Wyckoff failed to meet its burden ofproof of proffering any documentary proof "evidencing the independent contractor relationshipbetween Dr. Abakporo and the hospital."
As to the relief that Wyckoff did seek, i.e., the dismissal of any independent claims against it,it was incumbent on Wyckoff to address and rebut any specific allegations of malpractice setforth in plaintiffs' bill of particulars (seeGrant v Hudson Val. Hosp. Ctr., 55 AD3d 874, 875 [2008]; Terranova v Finklea, 45 AD3d572, 573 [2007]).
In their verified bill of particulars, plaintiffs alleged that "defendant, its servants, agents andemployees were negligent in failing to recognize the extent and serious nature of [plaintiff's]injuries upon presenting to the emergency room; in failing to properly debride her wounds; infailing to take x-rays, in failing to administer medication such as betadine or other topicalantibacterial aid; in failing to administer or prescribe antibiotics; in failing to otherwiseadminister proper first aid treatment; in failing to properly instruct the patient in the care of theinjury." Plaintiffs further alleged that "[u]pon information and belief, the person who wasnegligent was T. Abakaporo M.D." and that Wyckoff was vicariously liable "due to the fact thatthe defendant is a hospital and hired a staff to do emergency services. The staff, especially theemergency doctor (who we are informed is T. Abakporo, M.D.) whose actions or omissions areresponsible for this liability [sic]."
" 'The purpose of a bill of particulars is to amplify the pleadings, limit the proof and preventsurprise at trial' " (Harris v Ariel Transp.Corp., 37 AD3d 308, 309 [2007], quoting Twiddy v Standard Mar. Transp.Servs., 162 AD2d 264, 265 [1990]). "[R]esponses to a demand for a bill must clearly detailthe specific acts of negligence attributed to each defendant" (Miccarelli v Fleiss, 219AD2d 469, 470 [1995]; see Batson v La Guardia Hosp., 194 AD2d 705 [1993]). Giventhat the only person identified by plaintiffs as being negligent was Dr. Abakporo [*3]and that plaintiffs failed to distinguish any separate alleged acts andomissions of Wyckoff's staff, Wyckoff sustained its prima facie burden of establishing that therewere no independent claims against it and that it can only be held vicariously liable for Dr.Abakporo. Plaintiffs did not specify any independent acts of negligence by Wyckoff's staff and"our jurisprudence does not 'require a defendant [moving for summary judgment] to prove anegative on an issue as to which [it] does not bear the burden of proof' " (Martinez v Hunts Point Coop. Mkt.,Inc., 79 AD3d 569, 570 [2010], quoting Strowman v Great Atl. & Pac. Tea Co.,252 AD2d 384, 385 [1998]; see alsoWellington v Manmall, LLC, 70 AD3d 401, 401 [2010]).
Plaintiffs did not sustain their burden in that there is no evidence that anyone but Dr.Abakporo managed plaintiff's care and no indication that hospital staff did not follow his orders."General allegations of medical malpractice, merely conclusory and unsupported by competentevidence tending to establish the essential elements of medical malpractice," do not suffice(Alvarez, 68 NY2d at 325; see also Diaz v New York Downtown Hosp., 99NY2d 542 [2002]).
Accordingly, Wyckoff was entitled to partial summary judgment dismissing any and allclaims against it other than those alleging vicarious liability for the negligence of Dr. Abakporo.In view of this determination, we dismiss the appeal from the order denying renewal as academic.Concur—Andrias, J.P., Moskowitz and Freedman, JJ.
Saxe and Acosta, JJ., dissent in a memorandum by Acosta, J., as follows: I respectfullydissent because in my opinion defendant Wyckoff Heights failed to establish its prima facieentitlement to summary judgment as to any independent claims against it.
The allegations made by plaintiffs in their complaint and bill of particulars encompassed anynegligence attributable to the failure to act by defendant Wyckoff Heights, its employees, agentsor personnel. Consequently, in order to prevail on its summary judgment motion, WyckoffHeights was required to submit evidence in support of its claim that only Dr. Abakporo wasnegligent (see G.P. v Children's Hosp. ofBuffalo, 45 AD3d 1484 [2007] [holding that hospital has the burden of establishing thatno act or omission on the part of its employees either resulted in or exacerbated plaintiff's allegedinjuries]; see also Toth vBloshinsky, 39 AD3d 848, 850 [2007] [affirming a motion for summary judgment onthe ground that the "defendant hospital demonstrated, prima facie, that it (did not) commit()independent acts of negligence"]).
Wyckoff Heights, however, failed to make a prima facie showing that neither it nor itsemployees committed independent acts of negligence (see Fiorentino v Wenger, 19NY2d 407, 414 [1967] ["(w)here a hospital's alleged misconduct involves an omission to act, thehospital will not be held responsible unless it had reason to know that it should have acted withinthe duty it concededly had"]). Indeed, in its motion for partial summary judgment, WyckoffHeights merely attached the pleadings and bill of particulars. Significantly, Abakporo'sdeposition testimony was not included.[FN*]Thus, Wyckoff Heights failed to establish its prima facie [*4]entitlement to summary judgment, and accordingly the burdennever shifted to plaintiff to produce evidentiary proof sufficient to establish the existence of atriable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]).
That plaintiffs' bill of particulars stated that plaintiffs believed that the injuries were causedby Dr. Abakporo's negligence is of no moment inasmuch as the underlying pleadings must beliberally construed (CPLR 3026). In any event, plaintiffs' action is not limited to the wording inthe bill of particulars cited by the majority, especially when plaintiffs also stated that their claimwas against Wyckoff Heights' employees and agents (see Toth v Bloshinsky, 39AD3d at 849 [holding that all that was required of the plaintiff in serving a bill of particulars wasto "provide a general statement of the acts or omissions constituting the alleged negligence"]). Inshort, the specific wording of the bill of particulars cited by the majority did not relieve WyckoffHeights of its obligation to establish its prima facie entitlement to summary judgment with proofin admissible form.
Defendant's motion to renew was correctly denied since the deposition transcript profferedupon renewal existed at the time the original motion was made, and defendant failed to profferany reasonable excuse for its failure to obtain a copy of the transcript from codefendant's counselbefore making that motion (see CPLR 2221 [e]; Silverman v Leucadia Inc., 159AD2d 254 [1990]).
Footnote *: Had Wyckoff Heights attachedAbakporo's deposition, the flaw in its argument would have been even more apparent. Abakporonoted that "anyone" could have debrided plaintiff's wound, and he did not have to authorize suchactions—with the sole exception of nurses. Significantly, Abakporo's testimony suggeststhat there were other individuals, including an orthopedist or podiatrist and apparently a resident,with the capacity to assist plaintiff. Moreover, Abakporo documented plaintiff's injury in thehospital charts, which presumably would have been available to the staff (see Fiorentino vWenger, 19 NY2d at 414).