| Moran v Muscarella |
| 2011 NY Slip Op 04863 [85 AD3d 1579] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| Joseph Moran et al., Appellants, v Joseph L. Muscarella, Jr., D.O.,et al., Defendants, and Kaleida Health, Buffalo General Hospital, et al.,Respondents. |
—[*1] Gibson, McAskill & Crosby, LLP, Buffalo (Mark D. Arcara of counsel), fordefendants-respondents Kaleida Health, Buffalo General Hospital and Melinda S. Barone, Rnfa. Brown & Tarantino, LLC, Buffalo (Susan A. Eberle of counsel), for defendants-respondentsSinisa Markovic, M.D. and Buffalo Anesthesia Associates, P.C.
Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), entered May19, 2010 in a medical malpractice action. The order granted the motions of defendants KaleidaHealth, Buffalo General Hospital, Melinda S. Barone, RNFA, Sinisa Markovic, M.D., andBuffalo Anesthesia Associates, P.C. for summary judgment dismissing the complaint and allcross claims against them.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this medical malpractice action to recover damages forinjuries sustained by Joseph Moran (plaintiff) while he was undergoing a total thyroidectomy,central node dissection and right lateral node dissection. Defendant Joseph L. Muscarella, Jr.,D.O., plaintiff's private physician, performed the surgery at defendant Buffalo General Hospital(Hospital), which was owned, operated and controlled by defendant Kaleida Health (Kaleida).Dr. Muscarella was assisted by, inter alia, defendant Melinda S. Barone, RNFA, who wasemployed by the Hospital. Dr. Muscarella was also assisted by defendant Sinisa Markovic, M.D.,who was employed by defendant Buffalo Anesthesia Associates, P.C. (collectively, Markovicdefendants). According to plaintiffs, defendants improperly positioned him using two positioningdevices during the surgery, causing him to sustain injuries to his back and right arm. Weconclude that Supreme Court properly granted the motion of Barone, the Hospital and [*2]Kaleida (collectively, Hospital defendants), as well as the motion ofthe Markovic defendants, for summary judgment dismissing the complaint and all cross claimsagainst them.
We conclude that the Hospital defendants established their entitlement to judgment as amatter of law. It is well settled that, "[i]n general, a hospital may not be held vicariously liable forthe malpractice of a private attending physician who is not an employee, and may not be heldconcurrently liable unless its employees committed independent acts of negligence or theattending physician's orders were contraindicated by normal practice such that ordinary prudencerequired inquiry into the correctness of [his or her orders]" (Toth v Bloshinsky, 39 AD3d 848, 850 [2007]). Here, it isundisputed that Dr. Muscarella was a private physician chosen by plaintiff. It is also undisputedthat the Hospital's employees were following the orders of Dr. Muscarella and that he had theultimate responsibility in positioning plaintiff with the positioning devices used during thesurgery. There is also no evidence that Dr. Muscarella's orders "were contraindicated by normalpractice such that ordinary prudence required inquiry into the correctness of [his orders]" (id.; see Lorenzo v Kahn, 74 AD3d1711, 1712-1713 [2010]).
We further conclude that the Markovic defendants established their entitlement to judgmentas a matter of law. In support of their motion, the Markovic defendants submitted, inter alia, Dr.Markovic's expert affirmation in which he opined that the care and treatment of plaintiff was atall times within the standard of care. Dr. Markovic also averred that it was Dr. Muscarella'sresponsibility to position plaintiff using the positioning devices (see generally Graziano v Cooling, 79AD3d 803, 804 [2010]).
Once the Hospital defendants and the Markovic defendants established their entitlement tojudgment as a matter of law, "[t]he burden then shifted to plaintiffs to raise triable issues of factby submitting a physician's affidavit both attesting to a departure from accepted practice andcontaining the attesting [physician's] opinion that [those] defendant[s'] omissions or departureswere a competent producing cause of the injury" (O'Shea v Buffalo Med. Group, P.C., 64 AD3d 1140, 1141 [2009],lv dismissed 13 NY3d 834 [2009] [internal quotation marks omitted]). Contrary toplaintiffs' contention, the expert affidavits submitted in opposition to the motions "arespeculative [and] unsupported by any evidentiary foundation" (Diaz v New York DowntownHosp., 99 NY2d 542, 544 [2002]), and thus they are insufficient to raise triable issues of fact.We have reviewed plaintiffs' remaining contention and conclude that it is without merit.Present—Smith, J.P., Peradotto, Carni and Martoche, JJ.