| Bucsko v Gordon |
| 2014 NY Slip Op 03969 [118 AD3d 653] |
| June 4, 2014 |
| Appellate Division, Second Department |
[*1]
| Rudolph Bucsko, as Administrator of the Estate of MaryBucsko, Deceased, Appellant, v Lawrence A. Gordon, Defendant, and LongIsland Jewish Medical Center et al., Respondents. |
Abbott Bushlow & Schechner, LLP, Ridgewood, N.Y. (Bruce E. Bushlow ofcounsel), for appellant.
Bartlett McDonough & Monaghan, LLP, Mineola, N.Y. (Robert G.Vizza and Kim B. Kirzner of counsel), for respondents Long Island Jewish MedicalCenter and North Shore-Long Island Jewish Health System, Inc.
Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Steven B.Prystowsky of counsel), for respondent Parker Jewish Institute for Health Care andRehabilitation.
In an action to recover damages for medical malpractice and wrongful death, etc., theplaintiff appeals from (1) an order of the Supreme Court, Queens County (O'Donoghue,J.), dated May 3, 2012, which granted the motion of the defendants Long Island JewishMedical Center and North Shore-Long Island Jewish Health System, Inc., and theseparate motion of the defendant Parker Jewish Institute for Health Care, for summaryjudgment dismissing the amended complaint insofar as asserted against each of them, (2)a judgment of the same court dated June 7, 2012, which, upon the order, is in favor of thedefendant Parker Jewish Institute for Health Care and against him dismissing theamended complaint insofar as asserted against that defendant, and (3) a judgment of thesame court dated July 23, 2012, which, upon the order, is in favor of the defendants LongIsland Jewish Medical Center and North Shore-Long Island Jewish Health System, Inc.,and against him dismissing the amended complaint insofar as asserted against thosedefendants.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgments are affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately andfiling separate briefs.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of the judgments in the action (see Matterof Aho, 39 [*2]NY2d 241, 248 [1976]). The issuesraised on appeal from the order are brought up for review and have been considered onthe appeals from the judgments (see CPLR 5501 [a] [1]).
In this medical malpractice action, a piece of "old packing" was discovered in thesurgical wound of the plaintiff's decedent, Mary Bucsko, almost one year after a righthemicolectomy was performed by the defendant physician, Lawrence A. Gordon, at thefacilities of the defendant Long Island Jewish Medical Center (hereinafter the MedicalCenter). Following the surgery, Bucsko's surgical wound was cared for at the MedicalCenter by Gordon and hospital staff under Gordon's supervision, at the facilities of thedefendant Parker Jewish Institute for Health Care and Rehabilitation (hereinafter Parker),at Bucsko's home by visiting nurses employed by the defendant North Shore-Long IslandJewish Health System, Inc. (hereinafter North Shore), and at Gordon's private office.Bucsko commenced this action alleging, inter alia, that the defendants were negligent inleaving the packing inside the wound, asserting that it delayed the healing of the wound.After Bucsko died, the plaintiff was substituted as the administrator of Bucsko's estate.The plaintiff then served an amended complaint adding a cause of action allegingwrongful death.
The Medical Center and North Shore (hereinafter together the hospital defendants)moved, and Parker separately moved, for summary judgment dismissing the amendedcomplaint insofar as asserted against each of them, and the Supreme Court granted bothmotions.
The requisite elements of proof in a medical malpractice action are a deviation ordeparture from the accepted standard of care and evidence that the deviation or departurewas a proximate cause of injury or damage (see Stukas v Streiter, 83 AD3d 18, 23 [2011]; Hamilton v Good Samaritan Hosp.of Suffern, N.Y., 73 AD3d 697, 698 [2010]). To establish prima facieentitlement to judgment as a matter of law, a defendant in a medical malpractice actionmust negate either of these two elements (see Stukas v Streiter, 83 AD3d at 24).The plaintiff may then defeat the motion by submitting proof raising a triable issue offact as to the element or elements as to which the defendant has made its prima facieshowing (see id.).
The hospital defendants established their prima facie entitlement to judgment as amatter of law by submitting affidavits from a general surgeon and from a registered nursedemonstrating, prima facie, that their treatment of Bucsko conformed to good andaccepted medical and nursing practice (see Hamilton v Good Samaritan Hosp. ofSuffern, N.Y., 73 AD3d at 697; Dunn v Khan, 62 AD3d 828, 829 [2009]), and an expertaffidavit from an oncologist demonstrating, prima facie, that any departure from thestandard of care was not the proximate cause of Bucsko's injuries or death (see Orsi v Haralabatos, 20NY3d 1079, 1080 [2013]). Moreover, the Medical Center established that it cannotbe held vicariously liable for any purported malpractice committed by Gordon, as it isundisputed that he was a private attending physician whose services had been retained byBucsko, and that he was not an employee of the Medical Center (see Hill v St. Clare'sHosp., 67 NY2d 72, 79 [1986]; Litwak v Our Lady of Victory Hosp. ofLackawanna, 238 AD2d 881, 881 [1997]; Georges v Swift, 194 AD2d 517[1993]). Likewise, the Medical Center could not be held answerable for any actsperformed by its professional staff in accordance with the instructions of Bucsko'sprivate physician (see Toth v Community Hosp. at Glen Cove, 22 NY2d 255, 265n 3 [1968]; Nagengast v Samaritan Hosp., 211 AD2d 878, 880 [1995];Georges v Swift, 194 AD2d 517 [1993]).
Parker also established its prima facie entitlement to judgment as a matter of law bysubmitting an affidavit of its clinical director of nursing, excerpts of Gordon's depositiontestimony, and its medical records concerning the treatment rendered to Bucsko whichdemonstrated, prima facie, that its treatment of Bucsko conformed to good and acceptedmedical and nursing practice (see Hamilton v Good Samaritan Hosp. of Suffern, N.Y., 73AD3d 697 [2010]; Dunn v Khan, 62 AD3d at 829).
In opposition to the separate motions, the plaintiff failed to come forward with anyevidence raising a triable issue of fact as to a specific negligent act or omission of anemployee of the hospital defendants or Parker which caused Bucsko's alleged injuriesand death (see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]; see Georges v Swift, 194 AD2d 517 [1993]). The plaintiff's expertsurgeon did not offer any opinion as to whether the hospital defendants or Parkerdeparted from good and accepted medical or nursing practice in their treatment ofBucsko (see [*3]Hamilton v Good Samaritan Hosp. ofSuffern, N.Y., 73 AD3d at 698; Dunn v Khan, 62 AD3d at 830), nor was theexpert able to opine with any degree of medical certainty when and by whom the packingwas inadvertently left in the wound.
The plaintiff relies on the doctrine of res ipsa loquitur to relieve him of the burden ofproving which defendant had been negligent and when. Although res ipsa loquitur maybe utilized where more than one defendant may have been in control (see Kerber vSarles, 151 AD2d 1031 [1989]; Butti v Rollins, 133 AD2d 205 [1987]), theresponsible defendants must share exclusive control of the instrumentality causing injury.Here, neither the hospital defendants nor Parker were acting jointly or concurrently witheach other. They did not have concurrent control of the surgical packing that allegedlycaused the injury. The treatment here was performed by different entities at differenttimes in different locations. This is not a situation where several physicians participatedin a single surgical procedure and, as a result, have the burden to "explain their actionsand conduct in the operating room wherein plaintiff was injured" (Kerber vSarles, 151 AD2d at 1032). Accordingly, under these circumstances, the plaintiff'sreliance upon the doctrine of res ipsa loquitur in opposition to the motion is misplaced,inasmuch as he failed to raise a triable issue of fact as to the applicability of the requisiteelements of the doctrine (see generally Dermatossian v New York City Tr. Auth.,67 NY2d 219 [1986]; Leone v United Health Servs., 282 AD2d 860 [2001];Mack v Lydia E. Hall Hosp., 121 AD2d 431 [1986]).
Moreover, the doctrine of res ipsa loquitur is inapplicable to the defendants' allegedfailure to discover that the packing had not been removed (see Delaney v ChamplainVal. Physicians Hosp. Med. Ctr., 232 AD2d 840, 841-842 [1996]; cf. Bin XinTan v St. Vincent's Hosp. & Med. Ctr. of N.Y., 294 AD2d 122 [2002];Rockefeller v Moront, 81 NY2d 560, 565 [1993]; Rodriguez v ManhattanMed. Group, 77 NY2d 217, 223 [1990]), and the plaintiff failed to produce anyevidence on this theory of liability. Since the plaintiff failed to raise a triable issue of factwith respect to whether the hospital defendants or Parker departed from good andaccepted medical practice in their treatment of Bucsko, the Supreme Court properlygranted their separate motions for summary judgment dismissing the amended complaintinsofar as asserted against each of them.
In light of the foregoing, we need not reach the plaintiff's remaining contentions.Mastro, J.P., Leventhal, Chambers and Austin, JJ., concur.