| Barrocales v New York Methodist Hosp. |
| 2014 NY Slip Op 07606 [122 AD3d 648] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1](November 12, 2014)
| Justin Barrocales and Another, Infants, by Their Motherand Natural Guardian, Shawnette Wiggan, et al., Appellants, v New YorkMethodist Hospital et al., Respondents, et al., Defendants. |
Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John M. Daly, Eugene S. R.Pagano, Mitchell L. Gittin, John J. Leen, Ann Chase, and John E. Fitzgerald of counsel),for appellants.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Steven C.Mandell of counsel), for respondents New York Methodist Hospital, Madhu B.Gudavalli, and Sumana Myneni.
DeCorato Cohen Sheehan & Federico, LLP, New York, N.Y. (Joshua R.Cohen and Anna R. Schwartz of counsel), for respondent Ifeanyi Obiakor and defendantIfeanyi Obiakor, M.D., P.C.
In a consolidated action, inter alia, to recover damages for medical malpractice, etc.,the plaintiffs appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Steinhardt, J.), dated August 20, 2012, as granted that branch ofthe motion of the defendant Ifeanyi Obiakor which was for summary judgmentdismissing so much of the complaint as alleged medical malpractice insofar as assertedagainst him, and granted that branch of the motion of the defendants New YorkMethodist Hospital, Madhu B. Gudavalli, and Sumana Myneni which was for summaryjudgment dismissing so much of the complaint, insofar as asserted against the defendantNew York Methodist Hospital, as was based upon the discharge of the plaintiffShawnette Wiggan therefrom on May 7, 2001.
Ordered that the order is affirmed insofar as appealed from, with one bill of costspayable to the respondents appearing separately and filing separate briefs.
The plaintiff Shawnette Wiggan was admitted to the defendant New York MethodistHospital (hereafter NYMH) from May 1, 2001, to May 7, 2001, and again from May 9,2001, to May 19, 2001, exhibiting symptoms of preterm labor. The infant plaintiffs wereborn prematurely on May 19, 2001, and it is undisputed that they suffered variousinjuries as a result of their premature birth. Insofar as relevant here, the plaintiffscommenced this medical malpractice action alleging that the defendant Ifeanyi Obiakor,a private attending physician, failed to take certain steps to delay the premature birth ofthe infant plaintiffs. The plaintiffs sought to impose liability upon NYMH based on,among other things, the decision to discharge Wiggan on May 7, 2001.
[*2] "In order to establish the liability of a physician formedical malpractice, a plaintiff must prove that the physician deviated or departed fromaccepted community standards of practice, and that such departure was a proximate causeof the plaintiff's injuries" (Stukas v Streiter, 83 AD3d 18, 23 [2011]). Accordingly,"[a] physician moving for summary judgment dismissing a complaint alleging medicalmalpractice must establish, prima facie, either that there was no departure or that anydeparture was not a proximate cause of the plaintiff's injuries" (Gillespie v New York Hosp.Queens, 96 AD3d 901, 902 [2012]; see Faicco v Golub, 91 AD3d 817, 818 [2012]; Roca v Perel, 51 AD3d757, 758-759 [2008]). "Once a defendant physician has made such a showing, theburden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, butonly as to the elements on which the defendant met the prima facie burden" (Gillespiev New York Hosp. Queens, 96 AD3d at 902 [citations omitted]; see Stukas vStreiter, 83 AD3d at 30). "Summary judgment is not appropriate in a medicalmalpractice action where the parties adduce conflicting medical expert opinions" (Feinberg v Feit, 23 AD3d517, 519 [2005]; seeShields v Baktidy, 11 AD3d 671, 672 [2004]). Such conflicting expert opinionswill raise credibility issues which can only be resolved by a jury (see Roca vPerel, 51 AD3d at 759; Feinberg v Feit, 23 AD3d at 519). However, aplaintiff's expert's affidavit that is conclusory or speculative is insufficient to raise atriable issue of fact in opposition to a defendant's prima facie showing of entitlement tojudgment as a matter of law in a medical malpractice action (see Gillespie v NewYork Hosp. Queens, 96 AD3d at 902).
In support of that branch of his motion which was for summary judgment dismissingso much of the complaint as alleged medical malpractice insofar as asserted against him,Obiakor established, prima facie, that he did not depart from acceptable medical care bysubmitting, among other things, an expert affirmation concluding that his care andtreatment of Wiggan's preterm labor during her two periods of admission at NYMH waswithin the accepted standards of care (see DeLaurentis v Orange Regional Med. Ctr.-Horton Campus,117 AD3d 774 [2014]; Castelli v Westchester County Health Care Corp., 116 AD3d898 [2014]). In addition, he established that, in any event, any departure on his partwas not a proximate cause of the plaintiffs' injuries (see Castelli v WestchesterCounty Health Care Corp., 116 AD3d at 898). In opposition, the plaintiffs failed toraise a triable issue of fact. Contrary to the plaintiffs' contention, their medical expert'saffirmation submitted in opposition to Obiakor's motion was conclusory, speculative,self-contradictory, and lacked reasonable medical certainty, and therefore, wasinsufficient to raise a triable issue of fact (see Callistro v Bebbington, 94 AD3d 408, 410-411 [2012],affd 20 NY3d 945 [2012]). The plaintiffs also failed to raise a triable issue of factin response to Obiakor's prima facie showing that he cannot be held vicariously liable forthe alleged medical malpractice of another of Wiggan's private attending physicians, thedefendant Barbara Gordon, because Obiakor and Gordon worked together for thedefendant professional corporation, Ifeanyi Obiakor, M.D., P.C., rather than as partnersin a partnership (see Keitel vKurtz, 54 AD3d 387, 392 [2008]). Accordingly, the Supreme Court properlygranted that branch of Obiakor's motion which was for summary judgment dismissing somuch of the complaint as alleged medical malpractice insofar as asserted againsthim.
The Supreme Court also properly granted that branch of the motion of NYMH andthe defendants Madhu B. Gudavalli and Sumana Myneni (hereinafter collectively thehospital defendants) which was for summary judgment dismissing so much of thecomplaint, insofar as asserted against NYMH, as was based upon Wiggan's dischargetherefrom on May 7, 2001. "In general, a hospital may not be held vicariously liable forthe malpractice of a private attending physician who is not an employee, and may not beheld concurrently liable unless its employees committed independent acts of negligence"(Toth v Bloshinsky, 39AD3d 848, 850 [2007]; seeSchultz v Shreedhar, 66 AD3d 666, 667 [2009]; Cook v Reisner, 295AD2d 466, 467 [2002]). Here, the hospital defendants established, prima facie, that thedecision to discharge Wiggan on May 7, 2001, was made by one of her private attendingphysicians who was not employed by the hospital, and therefore, NYMH cannot be heldvicariously liable for that decision (see Giambona v Hines, 104 AD3d 807, 811 [2013]; Corletta v Fischer, 101 AD3d929, 930 [2012]). In opposition, the plaintiffs failed to raise a triable issue of fact(see Corletta v Fischer, 101 AD3d at 930). Rivera, J.P., Hall, Austin and Roman,JJ., concur.