| Fink v DeAngelis |
| 2014 NY Slip Op 03648 [117 AD3d 894] |
| May 21, 2014 |
| Appellate Division, Second Department |
[*1]
| Christina Fink, Individually and as Executrix of HenryFink, Deceased, Respondent, v Michael DeAngelis, D.O., et al., Defendants, andGlen Cove Hospital, Doing Business as North Shore University Hospital at Glen Cove,Appellant. |
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (ChristopherSimone, Deirdre E. Tracey, and Robert M. Ortiz of counsel), for appellant.
Okun, Oddo & Babat, New York, N.Y. (David M. Oddo and Darren Seilbackof counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, etc., thedefendant Glen Cove Hospital, doing business as North Shore University Hospital atGlen Cove, appeals, as limited by its brief, from so much of an order of the SupremeCourt, Nassau County (Sher, J.), entered August 16, 2012, as denied its motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst it.
Ordered that the order is affirmed insofar as appealed from, with costs.
On July 22, 2005, the plaintiff's husband, Henry Fink (hereinafter Fink), underwentknee surgery at the defendant Glen Cove Hospital, doing business as North ShoreUniversity Hospital at Glen Cove (hereafter the Hospital). The surgery was performed byFink's private attending physician, the defendant J. Simoncic. Following surgery,Simoncic placed Fink on antibiotics upon suspicion of infection based on hisobservations of the knee during surgery. During Fink's stay at the Hospital, testsperformed on him were negative for infection, and his antibiotic regimen wasdiscontinued. However, upon discharging Fink from the Hospital to a rehabilitationfacility, Simoncic ordered Hospital staff to give him a prescription for the antibioticLevaquin, which Fink was to begin taking the following day. Eventually, Fink allegedlysuffered severe complications consistent with taking Levaquin, which ultimately resultedin intestinal damage. Fink was transferred to the Extended Care Center of North ShoreUniversity Hospital, where he resided until his death.
Insofar as is pertinent to this appeal, Fink commenced this medical malpracticeaction prior to his death, seeking to hold the Hospital vicariously liable for Simoncic'salleged malpractice in discharging him with an unnecessary prescription to takeLevaquin, which ultimately resulted in [*2]his allegedintestinal injuries. The Supreme Court denied the Hospital's motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it. Weaffirm.
" 'In order to establish the liability of a physician for medical malpractice, aplaintiff must prove that the physician deviated or departed from accepted communitystandards of practice, and that such departure was a proximate cause of the plaintiff'sinjuries' " (DiGeronimov Fuchs, 101 AD3d 933, 936 [2012], quoting Stukas v Streiter, 83 AD3d18, 23 [2011]). Accordingly, "[a] physician moving for summary judgmentdismissing a complaint alleging medical malpractice must establish, prima facie, eitherthat there was no departure or that any departure was not a proximate cause of theplaintiff's injuries" (Gillespie vNew York Hosp. Queens, 96 AD3d 901, 902 [2012]). "Once a defendantphysician has made such a showing, the burden shifts to the plaintiff to demonstrate theexistence of a triable issue of fact, but only as to the elements on which the defendantmet the prima facie burden" (id. at 902; see Stukas v Streiter, 83 AD3d at30). "Summary judgment is not appropriate in a medical malpractice action where theparties adduce conflicting medical expert opinions" (Feinberg v Feit, 23 AD3d 517, 519 [2005]). "Suchconflicting expert opinions will raise credibility issues which can only be resolved by ajury" (DiGeronimo v Fuchs, 101 AD3d at 936).
With regard to the Hospital's potential liability, a hospital may not be held liable forinjuries suffered by a patient who is under the care of a private attending physicianchosen by the patient where the resident physicians and nurses employed by the hospitalmerely carry out the orders of the private attending physician, unless the hospital staffcommits "independent acts of negligence or the attending physician's orders arecontraindicated by normal practice" (Cerny v Williams, 32 AD3d 881, 883 [2006]; see Cham v St. Mary's Hosp. ofBrooklyn, 72 AD3d 1003, 1004 [2010]).
Here, the Hospital established, prima facie, that Simoncic was a private attendingphysician, and that its employees did not commit independent acts of negligence and thatSimoncic's discharge order that Fink be given a prescription for Levaquin was notcontraindicated by normal practice. However, in opposition, the plaintiff, through heropposing medical expert's affirmation, raised a triable issue of fact as to whether theprescribing of Levaquin was contraindicated by normal practice (see Aronov v Soukkary, 104AD3d 623, 625 [2013]).
Accordingly, the Supreme Court correctly denied the Hospital's motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it.Chambers, J.P., Austin, Maltese and Duffy, JJ., concur.