| Lormel v Macura |
| 2014 NY Slip Op 00330 [113 AD3d 734] |
| January 22, 2014 |
| Appellate Division, Second Department |
| Lorraine Lormel et al., Respondents, v JerzyMacura, Defendant, and Staten Island University Hospital,Appellant. |
—[*1] Ameduri Galante & Friscia, Staten Island, N.Y. (Marvin Ben-Aron of counsel), forrespondents.
In an action, inter alia, to recover damages for medical malpractice, etc., thedefendant Staten Island University Hospital appeals, as limited by its brief, from (1) somuch of an order of the Supreme Court, Richmond County (Maltese, J.), dated February3, 2012, as denied its motion for summary judgment dismissing the complaint insofar asasserted against it, and (2) so much of an amended order of the same court dated May 30,2012, as, upon reargument, adhered to the original determination.
Ordered that the appeal from the order dated February 3, 2012, is dismissed, as thatorder was superseded by the amended order dated May 30, 2012; and it is further,
Ordered that the amended order dated May 30, 2012, is affirmed insofar as appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs, payable by the defendantStaten Island University Hospital.
On August 2, 2001, Lorraine Lormel (hereinafter the injured plaintiff), underwentgastric bypass surgery at the facility of the defendant Staten Island University Hospital(hereinafter SIUH). The surgery was performed, in part, by the injured plaintiff's privateattending physician, the defendant Jerzy Macura. Two days later, on August 4, 2001,when the injured plaintiff complained of symptoms suggestive of an internal leak from asuture, Dr. Yaakov N. Applbaum ordered a gastrografin X ray study to determinewhether there was an internal leak. Dr. Carolyn Raia, a radiologist, read the X ray filmsand concluded that there was no evidence of a leak. The injured plaintiff's symptomsworsened, and, on August 6, 2001, Macura ordered a gastrografin CT study, whichrevealed that there was, in fact, a leak. Additional surgery was performed to repair theleak. The injured plaintiff, and her husband suing derivatively, commenced this actionagainst SIUH and [*2]various physicians, alleging,among other things, that SIUH staff members were negligent after the initial surgery inrendering post-operative care. As relevant here, the plaintiffs alleged that the gastrografinX ray study done on August 4, 2011, was not the appropriate diagnostic test fordetermining whether there was a leak, and that, in any event, the study was negligentlyperformed and the results were negligently read, thus delaying the diagnosis of a leak.The plaintiffs alleged that the gastrografin CT study should have been ordered earlier. Asa result of the alleged malpractice, the plaintiffs alleged that the injured plaintiff'ssuffering was prolonged.
Following discovery, SIUH moved for summary judgment dismissing the complaintinsofar as asserted against it, principally on the ground that all of the injured plaintiff'smedical care was managed by her private attending physicians and not by SIUHemployees, and that SIUH staff were not negligent in their treatment of her. The SupremeCourt denied SIUH's motion. It found that there were triable issues of fact as to whetherRaia was an employee of SIUH and whether SIUH should have appended a cautionarystatement on the gastrografin X ray study noting the deficient quality of the study and itsinherent limits in ruling out surgical suture leaks. Upon reargument, theSupreme Court adhered to its determination. We agree with the Supreme Court thatSIUH was not entitled to summary judgment, but for a different reason.
"In general, a hospital may not be held vicariously liable for the malpractice of aprivate attending physician who is not an employee, and may not be held concurrentlyliable unless its employees committed independent acts of negligence or the attendingphysician's orders were contraindicated by normal practice such that ordinary prudencerequired inquiry into the correctness" of those orders (Toth v Bloshinsky, 39 AD3d 848, 850 [2007]; see Corletta v Fischer, 101AD3d 929, 930 [2012]; Cerny v Williams, 32 AD3d 881, 883 [2006]). Contrary tothe Supreme Court's determination, SIUH established prima facie that Raia was not itsemployee when she read the injured plaintiff's X ray films, and that it could not otherwisebe held vicariously liable for her actions.
SIUH, however, failed to establish, prima facie, that Applbaum was not its employee,and thus that it was not vicariously liable for his acts (see Toth v Bloshinsky, 39AD3d at 850). Given this failure, SIUH needed to establish either that Applbaum was notnegligent or that his negligence was not a proximate cause of the injured plaintiff'sinjuries (see Stukas vStreiter, 83 AD3d 18, 24 [2011]). SIUH failed to make the necessary showing.A defendant moving for summary judgment in an action alleging medical malpracticemust specifically address the allegations of medical malpractice contained in theplaintiffs' bill of particulars (seeWall v Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1044-1045 [2010]; Terranova v Finklea, 45 AD3d572, 572 [2007]). Conclusory statements of a defendant's expert to the effect that thedefendant physician did not depart from good and accepted practice are insufficient.Here, SIUH's expert failed to specifically address whether Applbaum departed from theapplicable standard of care when, on August 4, 2001, he ordered a gastrografin X raystudy, rather than a grastrografin CT study (see Wall v Flushing Hosp. Med. Ctr.,78 AD3d at 1045; Grant vHudson Val. Hosp. Ctr., 55 AD3d 874, 874-875 [2008]; Terranova vFinklea, 45 AD3d at 573). It also failed to establish that Applbaum's allegeddeparture was not a proximate cause of the injured plaintiff's injuries (cf. Stukas vStreiter, 83 AD3d at 30-31). Inasmuch as SIUH failed to satisfy its prima facieburden, its motion was properly denied without regard to the sufficiency of the plaintiffs'opposition papers (see Faicco vGolub, 91 AD3d 817, 818 [2012]). Skelos, J.P., Balkin, Leventhal and Sgroi,JJ., concur. [Prior Case History: 2012 NY Slip Op 30259(U).]