| Tom v Sundaresan |
| 2013 NY Slip Op 04296 [107 AD3d 479] |
| June 11, 2013 |
| Appellate Division, First Department |
| Edward Tom, Respondent, v Narayan Sundaresan,Appellant, et al., Defendants. |
—[*1] Steven E. North, P.C., New York (Steven E. North of counsel), forrespondent.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered May 24,2012, which, insofar as appealed from as limited by the briefs, denied the motion ofdefendant Narayan Sundaresan for summary judgment dismissing that part of the causeof action alleging medical malpractice as against him premised on departures prior toApril 11, 2005, and the cause of action as against him alleging lack of informed consent,unanimously modified, on the law, to grant the motion to the extent of dismissing thecause of action alleging lack of informed consent, and otherwise affirmed, without costs.
The court properly denied the motion of Sundaresan, a neurosurgeon, for summaryjudgment dismissing the malpractice claim arising from care rendered before April 11,2005 on the basis of a lack of a duty of care. The record presents triable issues as towhether a physician-patient relationship existed as of the evening of April 10th by virtueof a telephone consultation between Dr. Sundaresan and the other individual defendantneurosurgeon, Dr. Holtzman. While the issue of whether a physician owes a duty of careis a question of law, whether a physician-patient relationship exists is generally an issueof fact (Raptis-Smith v St. Joseph's Med. Ctr., 302 AD2d 246, 247 [1st Dept2003]; Cogswell v Chapman, 249 AD2d 865, 866 [3d Dept 1998]). To overcomea motion for summary judgment on the issue of whether a physician-patient relationshipexists, "[i]t is not necessary that a [physician] see, examine, take a history of or treat apatient" (Raptis-Smith, 302 AD2d at 247). Indeed, plaintiffs have overcomesummary judgment on the existence of a physician-patient relationship in cases where themoving physician had formulated plans in conjunction with other medical professionalswho later relied on those recommendations (Scalisi v Oberlander, 96 AD3d 106, 123 [1st Dept 2012]),and where there was testimony that the physician consulted with a nurse midwifeconcerning the treatment of the plaintiff (Santos v Rosing, 60 AD3d 500 [1st Dept 2009]).
Here, there is an issue of fact as to whether the April 10, 2005 telephoneconversation between Dr. Holtzman and Dr. Sundaresan gave rise to a physician-patientrelationship between Dr. Sundaresan and plaintiff. Both doctors testified that, during thisconversation, Dr. Holtzman [*2]told Dr. Sundaresan thathe was transferring a patient from Cabrini Medical Center, where Dr. Holtzman was theon-call and consulting neurosurgeon, to codefendant Lenox Hill Hospital, where Dr.Sundaresan was an attending neurosurgeon, because Cabrini does not perform MRIs onweekends. Both doctors further testified that they discussed that the patient was anachondroplastic dwarf with multiple medical conditions, although Dr. Sundaresanrecalled discussing an acute case of cauda equina syndrome (CES) while Dr. Holtzmanremembered being unsure whether plaintiff had CES, conus medullaris syndrome, or acombination of the two.
Both doctors understood that Dr. Sundaresan would consult on the patient andperform surgery together with Dr. Holtzman, as the two doctors had done more than 100times since the early 1980s, and Dr. Holtzman testified that the collective plan was thatDr. Sundaresan would be the chief surgeon for plaintiff. Dr. Sundaresan testified thatthey "would both accept responsibility for the surgery." Dr. Holtzman also testified that"we were trying to transfer [plaintiff] to Lenox Hill" (in part, because Sundaresan "hadnot seen [plaintiff] yet"), "[w]e both felt" that the MRI and medical evaluation wasimportant, and another purpose of the transfer was "for evaluation by both of us." Fromthe above testimony, a jury could reasonably infer that both doctors expresslycontemplated treating plaintiff as part of the surgical team managing his care and thatduring the April 10th conversation, they jointly planned to perform surgery pending theresults of the tests.
Dr. Sundaresan relies on Sawh v Schoen for the premise that a physician whomerely discusses a patient's condition does not assume the duty to accurately advise andverify that his advice has been followed, and is not liable in medical malpractice (215AD2d 291, 292-293 [1st Dept 1995]). In Sawh, the physician had no recollectionof ever discussing the condition and the "[p]laintiff's entire theory of liability [was] that amember physician who attends group staff meetings at which a patient's care is discussedthereby assumes liability for any deviation from accepted medical practice in the courseof treatment rendered by his associates" (id.). Here, plaintiff has put forthtestimony by both physicians that they had a detailed conversation regarding hisconditions, during which they planned for a surgery to be performed jointly by both ofthem. This certainly rises above the "rank speculation" of the plaintiff in Sawh,where the court noted that "[m]erely pointing to circumstances in which a defendantphysician might have undertaken joint management of the patient's care is not sufficient"(id. at 293).
Dr. Sundaresan also relies on Burtman v Brown, which correctly expressedthat "the question is whether the physician owes a duty under the circumstances of aparticular scenario" (97 AD3d 156, 162 [1st Dept 2012]). While the circumstances in thatcase were not in dispute, because the patient's faulty memory could not raise a triableissue to controvert the documentary evidence, as noted above, the circumstances of theparticular scenario here are in dispute, raising a triable issue of fact sufficient toovercome Dr. Sundaresan's motion.
The cause of action alleging lack of informed consent as against Sundaresan shouldhave been dismissed. Plaintiff never addressed the argument that the claim should bedismissed, and the record establishes that it was the other individual defendantneurosurgeon, who is not party to [*3]this appeal, whoexplained the procedure to plaintiff and obtained his consent (see Brady v Westchester CountyHealthcare Corp., 78 AD3d 1097, 1099 [2d Dept 2010]).Concur—Sweeny, J.P., Moskowitz, Feinman and Clark, JJ.