| Giambona v Hines |
| 2013 NY Slip Op 01803 [104 AD3d 807] |
| March 20, 2013 |
| Appellate Division, Second Department |
| Palma Giambona, Appellant-Respondent, v GeorgeL. Hines et al., Respondents, and Winthrop-University Hospital Association,Respondent-Appellant, et al., Defendants. |
—[*1] Furey, Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, N.Y. (Lauren B. Bristolof counsel), for respondent-appellant. Helwig, Henderson, Ryan & Spinola, Carle Place, N.Y. (Jeffrey A. Learn and ScottLuis McCann of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffappeals, as limited by her brief, from so much of a resettled order of the Supreme Court,Nassau County (Parga, J.), entered April 11, 2011, as, pursuant to an order of the samecourt entered August 24, 2010, and resettled nunc pro tunc as of June 22, 2010, (a)granted that branch of the motion of the defendants George L. Hines and WinthropCardiovascular & Thoracic Surgery, P.C., which was for summary judgment dismissingthe cause of action to recover damages for medical malpractice insofar as asserted againstthem, and (b) granted that branch of the cross motion of the defendantWinthrop-University Hospital Association which was for summary judgment dismissingso much of the complaint as alleged that it was vicariously liable for the treatmentrendered to the plaintiff's decedent by nonparty physician Rakesh Shah; and thedefendant Winthrop-University Hospital Association cross-appeals from so much of thesame order as denied that branch of its cross motion which was for summary judgmentdismissing so much of the complaint as alleged that it was vicariously liable for thetreatment rendered to the plaintiff's decedent by the defendant Nicolas Raio.
Ordered that the resettled order entered April 11, 2011, is affirmed insofar asappealed from; and it is further,
Ordered that the resettled order entered April 11, 2011, is reversed insofar ascross-appealed from, on the law, and that branch of the cross motion of the defendantWinthrop-University Hospital Association which was for summary judgment dismissingso much of the complaint as alleged that it was vicariously liable for the treatmentrendered to the plaintiff's decedent by the defendant Nicolas Raio is granted; and it isfurther,[*2]
Ordered that one bill of costs is awarded to thedefendants George L. Hines, Winthrop Cardiovascular Thoracic Surgery, P.C., andWinthrop-University Hospital Association appearing separately and filing separate briefs,payable by the plaintiff.
The plaintiff's decedent allegedly sustained injuries and died as the result of athoracoabdominal aortic aneurysm that was not timely and properly diagnosed or treated.The plaintiff commenced this action, inter alia, to recover damages for medicalmalpractice and wrongful death, against the defendants George L. Hines, WinthropCardiovascular & Thoracic Surgery, P.C. (hereinafter Winthrop Cardiovascular),Winthrop-University Hospital Association (hereinafter Winthrop-University Hospital),Bethpage Primary Medical Care, P.C. (hereinafter Bethpage Primary Medical), andphysicians Anthony T. Arcati, Barrett Donald Sklar, Jack W. Geffken, John SalvatoreBoccio, and Nicolas Raio.
Bethpage Primary Medical, Arcati, Sklar, Geffken, and Boccio moved, inter alia, forsummary judgment dismissing the complaint insofar as asserted against them, and Hinesand Winthrop Cardiovascular separately moved for summary judgment dismissing thecomplaint insofar as asserted against them. Winthrop-University Hospital cross-movedfor summary judgment dismissing the complaint insofar as asserted against it. In theresettled order appealed from, the Supreme Court awarded summary judgment toBethpage Primary Medical, Arcati, Sklar, Geffken, and Boccio, dismissing the complaintinsofar as asserted against them. The court also awarded summary judgment to Hines andWinthrop Cardiovascular, dismissing the complaint insofar as asserted against them.Consequently, the court awarded summary judgment to Winthrop-University Hospitaldismissing the vicarious liability claims asserted against it pertaining to BethpagePrimary Medical, Winthrop Cardiovascular, Arcati, Sklar, Geffken, Boccio, and Hines.However, the court denied that branch of Winthrop-University Hospital's cross motionwhich was for summary judgment dismissing so much of the complaint as alleged that itwas vicariously liable for the treatment rendered to the decedent by Raio, who did notmove for summary judgment.
"The essential elements of medical malpractice are (1) a deviation or departure fromaccepted medical practice, and (2) evidence that such departure was a proximate cause ofinjury" (DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; see Hayden v Gordon, 91AD3d 819, 820 [2012]; Guzzi v Gewirtz, 82 AD3d 838 [2011]). On a motion forsummary judgment, a defendant physician "must make a prima facie showing that therewas no departure from good and accepted medical practice or that the plaintiff was notinjured thereby" (Stukas vStreiter, 83 AD3d 18, 24 [2011]; see Gillespie v New York Hosp. Queens, 96 AD3d 901,902 [2012]; Healy vDamus, 88 AD3d 848, 849 [2011]; Heller v Weinberg, 77 AD3d 622, 622-623 [2010]). Once adefendant has made such a showing, the burden shifts to the plaintiff to "submitevidentiary facts or materials to rebut the prima facie showing by the defendantphysician" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), but only as tothe elements on which the defendant met the prima facie burden (see Stukas vStreiter, 83 AD3d at 23-24; Gillespie v New York Hosp. Queens, 96 AD3dat 902; Garrett v UniversityAssoc. in Obstetrics & Gynecology, P.C., 95 AD3d 823, 825 [2012]).
Contrary to the plaintiff's contention on appeal, the Supreme Court properly grantedthat branch of the motion of Hines and Winthrop Cardiovascular which was for summaryjudgment dismissing the cause of action to recover damages for medical malpracticeinsofar as asserted against them. Hines and Winthrop Cardiovascular made a prima facieshowing of their entitlement to judgment as a matter of law by submitting, among otherthings, an expert affidavit demonstrating that Hines did not depart from good andaccepted standards of medical care in opting not to surgically repair a lower thoracicaortic aneurysm that appeared on a CT-scan of the decedent's abdomen in April 2005,given the size of the aneurysm at the time and the decedent's "multiple co-morbidconditions," which made him a poor candidate for surgery. The expert affidavit alsoestablished that any departure from good and accepted standards of medical care inopting not to surgically repair the subject aneurysm at that time was not a proximatecause of the injuries sustained by the decedent in July 2005, when he sufferedcomplications from a separate pseudoaneurysm. In opposition, the plaintiff failed to raisea triable issue of fact. Even if the plaintiff's expert's affidavit was sufficient to establishthat Hines departed from accepted standards of medical care in opting not to surgicallyrepair the subject aneurysm in April 2005, the expert's opinion was insufficient to raise[*3]a triable issue of fact as to whether the injuriessustained by the decedent in July 2005 were proximately caused by any such departure,because the opinion was conclusory and unsupported by the record on the issue ofcausation (see Bezerman vBailine, 95 AD3d 1153, 1154 [2012]; Gillespie v New York Hosp.Queens, 96 AD3d at 902; Lau v Wan, 93 AD3d 763, 765 [2012]; Savage v Quinn, 91 AD3d748, 750 [2012]).
Furthermore, the Supreme Court properly granted that branch ofWinthrop-University Hospital's cross motion which was for summary judgmentdismissing so much of the complaint as alleged that it was vicariously liable for thetreatment rendered to the decedent by nonparty physician Rakesh Shah. Contrary to theplaintiff's contention, the court properly considered Winthrop-University Hospital'suntimely cross motion on the merits, since the timely filed motions for summaryjudgment by the other defendants were still pending and "made on nearly identicalgrounds" (Grande vPeteroy, 39 AD3d 590, 592 [2007]; see Homeland Ins. Co. of N.Y. v National Grange Mut. Ins.Co., 84 AD3d 737, 738 [2011]; Joyner-Pack v Sykes, 54 AD3d 727, 728 [2008]).Furthermore, Winthrop-University Hospital made a prima facie showing that any allegeddeparture from accepted standards of medical care by Shah in misreading the CT-scan ofthe decedent's abdomen in April 2005 was not a proximate cause of the decedent'salleged injuries, since the course of treatment selected by Hines was not based upon thereport written by Shah, but rather, upon an independent review of the CT-scan (seeGarrett v University Assoc. in Obstetrics & Gynecology, P.C., 95 AD3d at 826). Inopposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d at 324).
However, the Supreme Court erred in denying that branch of Winthrop-UniversityHospital's cross motion which was for summary judgment dismissing so much of thecomplaint as alleged that it was vicariously liable for the treatment rendered to thedecedent by Raio. "In general, a hospital may not be held vicariously liable for themalpractice of a private attending physician who is not an employee" (Toth v Bloshinsky, 39 AD3d848, 850 [2007]; seeCorletta v Fischer, 101 AD3d 929 [2012]; Gardner v Brookdale Hosp. Med. Ctr., 73 AD3d 1124[2010]; Martinez v LaPorta, 50 AD3d 976, 977 [2008]). "However, an exception to the general ruleexists when a patient comes to the emergency room seeking treatment from the hospitaland not from a particular physician of the patient's choosing" (Orgovan v Bloom, 7 AD3d770, 771 [2004]; see Gardner v Brookdale Hosp. Med. Ctr., 73 AD3d at1124; Salvatore v WinthropUniv. Med. Ctr., 36 AD3d 887, 888 [2007]; Johnson v Jamaica Hosp. Med. Ctr., 21 AD3d 881, 883[2005]).
Here, Winthrop-University Hospital made a prima facie showing of its entitlement tojudgment as a matter of law dismissing so much of the complaint as alleged that it wasvicariously liable for the alleged malpractice of Raio by submitting evidence that Raiowas not an employee of Winthrop-University Hospital, but rather, an attending physicianat the hospital (see Alvarado vBeth Israel Med. Ctr., 78 AD3d 873, 875 [2010]; Sullivan v Sirop, 74 AD3d1326, 1328 [2010]; Sampson v Contillo, 55 AD3d 588, 590-591 [2008]; Dragotta v SouthamptonHosp., 39 AD3d 697, 698-699 [2007]). Furthermore, Winthrop-UniversityHospital made a prima facie showing that the emergency room exception wasinapplicable, by demonstrating that the decedent was referred to Raio's care by his owninternist (see Schultz vShreedhar, 66 AD3d 666, 666-667 [2009]; Bevelacqua v Yonkers Gen. Hosp., 10 AD3d 668 [2004];Orgovan v Bloom, 7 AD3d at 771). In opposition, the plaintiff failed to raise atriable issue of fact (see Corletta v Fischer, 101 AD3d at 929; Schultz vShreedhar, 66 AD3d at 667). Accordingly, the Supreme Court should have grantedthat branch of Winthrop-University Hospital's cross motion which was for summaryjudgment dismissing so much of the complaint as alleged that it was vicariously liable forthe treatment rendered to the decedent by Raio. Rivera, J.P., Angiolillo, Chambers andRoman, JJ., concur.