| Poter v Adams |
| 2013 NY Slip Op 02061 [104 AD3d 925] |
| March 27, 2013 |
| Appellate Division, Second Department |
| Warren Poter, Respondent, v David Adams et al.,Appellants. |
—[*1] Koss & Schonfeld, LLP, New York, N.Y. (Jacob J. Schindelheim of counsel), forrespondent.
In an action to recover damages for medical malpractice, lack of informed consent,negligent hiring and supervision, and wrongful death, the defendants appeal, as limitedby their brief, from so much of an order of the Supreme Court, Queens County(O'Donoghue, J.), dated February 29, 2012, as denied that branch of their motion whichwas for summary judgment dismissing the complaint insofar as asserted against thedefendant Joanna Chikwe and denied those branches of their motion which were forsummary judgment dismissing the causes of action to recover damages for medicalmalpractice and wrongful death insofar as asserted against the defendants David Adamsand Mount Sinai Hospital.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the defendants' motion which was for summary judgmentdismissing the complaint insofar as asserted against the defendant Joanna Chikwe, andsubstituting therefor a provision granting that branch of the motion; as so modified, theorder is affirmed insofar as appealed from, without costs or disbursements.
In November 2007, the plaintiff's decedent underwent a surgical procedure at thedefendant Mount Sinai Hospital (hereinafter the hospital) for the repair of the mitral andtricuspid valves of her heart. The procedure was performed by the defendant DavidAdams, the chairman of the hospital's department of cardiothoracic surgery, with theassistance of the defendant Joanna Chikwe, a fellow in the cardiothoracic department atthe hospital. The plaintiff's decedent allegedly died as a result of the surgery and theplaintiff commenced this action against Adams, Chikwe, and the hospital to recoverdamages for medical malpractice, lack of informed consent, negligent hiring andsupervision, and wrongful death. The Supreme Court denied the defendants' motion forsummary judgment dismissing the complaint and the defendants appeal.
"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 [*2]a prima facie showing that there was no departure fromgood and accepted medical practice or that the plaintiff was not injured thereby" (Stukas v Streiter, 83 AD3d18, 24 [2011]; see Gillespiev New York Hosp. Queens, 96 AD3d 901, 902 [2012]; Healy v Damus, 88 AD3d848, 849 [2011]; Heller vWeinberg, 77 AD3d 622, 622-623 [2010]). Once a defendant has made such ashowing, the burden shifts to the plaintiff to "submit evidentiary facts or materials torebut the prima facie showing by the defendant physician" (Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]), but only as to those elements on which thedefendant met the prima facie burden (see Stukas v Streiter, 83 AD3d at 23-24;Gillespie v New York Hosp. Queens, 96 AD3d at 902; Garrett v University Assoc. inObstetrics & Gynecology, P.C., 95 AD3d 823, 825 [2012]).
Here, the defendants met their prima facie burden of establishing their entitlement tojudgment as a matter of law dismissing the cause of action to recover damages formedical malpractice by submitting a detailed expert affidavit that was based on themedical records (see e.g. Barrettv Hudson Val. Cardiovascular Assoc., P.C., 91 AD3d 691, 692 [2012]) andwhich demonstrated that the surgery was performed in accordance with good andaccepted standards of medical practice (see Olgun v Cipolla, 82 AD3d 1186, 1187 [2011]; Smith-Johnson v Gabbur, 65AD3d 1122, 1124 [2009]; Dandrea v Hertz, 23 AD3d 332 [2005]). However, contraryto the defendants' contention, the expert affidavit submitted by the plaintiff in oppositionto the motion was also detailed and based on the medical records, and was sufficient toraise a triable issue of fact as to whether Adams deviated from accepted medical practice(see generally Alvarez v Prospect Hosp., 68 NY2d at 324). As "[s]ummaryjudgment is not appropriate in a medical malpractice action where the parties adduceconflicting medical expert opinions" (Feinberg v Feit, 23 AD3d 517, 519 [2005]; see Magel v John T. Mather Mem.Hosp., 95 AD3d 1081, 1083 [2012]; Hayden v Gordon, 91 AD3d at821; Bengston v Wang, 41AD3d 625, 626 [2007]), the Supreme Court properly denied that branch of thedefendants' motion which was for summary judgment dismissing the cause of action torecover damages for medical malpractice insofar as asserted against Adams and thehospital. Moreover, as the cause of action to recover damages for wrongful death wasbased upon acts of malpractice, the Supreme Court properly denied that branch of thedefendants' motion which was for summary judgment dismissing the cause of action torecover damages for wrongful death insofar as asserted against Adams and the hospital.
However, the Supreme Court erred in denying that branch of the defendants' motionwhich was for summary judgment dismissing the complaint insofar as asserted againstChikwe. A resident or fellow who is supervised by a doctor during a medical procedure,and who does not exercise any independent medical judgment, cannot be held liable formedical malpractice unless the resident or fellow knows that the supervising doctor'sorders are so clearly contraindicated by normal practice that ordinary prudence requiresinquiry into the correctness of the orders, or the resident or fellow commits anindependent act that constitutes a departure from accepted medical practice (see Cookv Reisner, 295 AD2d 466, 467 [2002]; see also Bellafiore v Ricotta, 83 AD3d 632, 633 [2011]; Soto v Andaz, 8 AD3d470, 471 [2004]). Here, the defendants made a prima facie showing that Chikwe didnot exercise any independent medical judgment during the surgical procedure and thatAdams's orders were not so clearly contraindicated by normal practice that ordinaryprudence required inquiry into the correctness of the orders. The defendants also made aprima facie showing that Chikwe did not commit an independent act that constituted adeparture from accepted medical practice. In opposition, the plaintiff failed to raise atriable issue of fact. Accordingly, the Supreme Court should have granted that branch ofthe defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted against Chikwe. Mastro, J.P., Austin, Roman and Cohen, JJ., concur.