| Tomeo v Beccia |
| 2015 NY Slip Op 03350 [127 AD3d 1071] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| Alaina Tomeo, Respondent, v David Beccia,M.D., et al., Defendants, and Jason L. Schneider, M.D., et al.,Appellants. |
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simoneand Lauren J. Daniels of counsel), for appellants Jason L. Schneider and Island Surgicaland Vascular Group, P.C.
Bower Law P.C., Uniondale, N.Y. (Michael J. Napoli, Jr., and Anina H. Monte ofcounsel), for appellant Good Samaritan Hospital.
Davis & Ferber (Sweetbaum & Sweetbaum, Lake Success, N.Y. [MarshallD. Sweetbaum], of counsel), for respondent.
In an action to recover damages for medical malpractice, the defendants Jason L.Schneider and Island Surgical and Vascular Group, P.C., appeal, as limited by their brief,from so much of an order of the Supreme Court, Suffolk County (Mayer, J.), datedJanuary 29, 2013, as denied their motion for summary judgment dismissing the complaintinsofar as asserted against them, and the defendant Good Samaritan Hospital separatelyappeals, as limited by its brief, from so much of the same order as denied its separatemotion for summary judgment dismissing the complaint insofar as asserted againstit.
Ordered that the order is affirmed insofar as appealed from by the defendants JasonL. Schneider and Island Surgical and Vascular Group, P.C.; and it is further,
Ordered that the order is reversed insofar as appealed from by the defendant GoodSamaritan Hospital, and the motion of that defendant for summary judgment dismissingthe complaint insofar as asserted against it is granted; and it is further,
Ordered that one bill of costs is awarded to the defendant Good Samaritan Hospital,payable by the plaintiff, and one bill of costs is awarded to the plaintiff, payable by thedefendants Jason L. Schneider and Island Surgical and Vascular Group. P.C.
The Supreme Court properly denied the motion of the defendants Jason L. Schneiderand Island Surgical and Vascular Group, P.C. (hereinafter Island), for summary judgmentdismissing the complaint insofar as asserted against them. Schneider and Island failed tomake a prima facie showing that they did not depart from good and accepted medicalpractice or, if there was a departure, that the plaintiff was not injured thereby (see Ahmed v Pannone, 116AD3d 802 [2014]; Poter vAdams, 104 AD3d 925 [2013]; Bendel v Rajpal, 101 AD3d 662 [2012]). The affidavit oftheir expert, Dr. Robert [*2]Ward, was conclusory. Wardfailed to set forth the applicable standard of care. He merely recounted the treatmentrendered, and opined, in a conclusory manner, that such treatment did not represent adeparture from good and accepted medical practice (see Barlev v Bethpage Physical Therapy Assoc., P.C., 122AD3d 784 [2014]; Walkerv Saint Vincent Catholic Med. Ctrs., 114 AD3d 669 [2014]; Ocasio-Gary v LawrenceHosp., 69 AD3d 403 [2010]; Johnson v Queens-Long Is. Med. Group, P.C., 23 AD3d525 [2005]; Williams v Howe, 297 AD2d 671 [2002]). Ward's affidavit wasinsufficient to refute the allegations set forth in the plaintiff's bill of particulars (seeBendel v Rajpal, 101 AD3d at 663; Faicco v Golub, 91 AD3d 817 [2012]). Furthermore,Ward's opinion as to causation was also merely stated in conclusory terms (see LeMaire v Kuncham, 102AD3d 659 [2013]). In light of this determination, it is unnecessary to review thesufficiency of the plaintiff's opposition to the motion of Schneider and Island forsummary judgment (see Barlev v Bethpage Physical Therapy Assoc., P.C., 122AD3d at 784; Faicco v Golub, 91 AD3d at 818).
The Supreme Court, however, erred in denying the separate motion of the defendantGood Samaritan Hospital (hereinafter Good Samaritan) for summary judgmentdismissing the complaint insofar as asserted against it. The plaintiff's contention thatcertain medical records submitted by Good Samaritan were uncertified and, therefore,inadmissible, is not properly before this Court, as she failed to raise it before the SupremeCourt in opposition to the motion. The plaintiff does not challenge the accuracy orveracity of the uncertified records and, in fact, she and her expert relied upon thoserecords in opposition to the defendants' motions (see Carlton v St. Barnabas Hosp., 91 AD3d 561 [2012]; see also Ward v Lincoln Elec.Co., 116 AD3d 558 [2014]). Furthermore, although the transcript of Schneider'sdeposition provided by Good Samaritan was double-sided and, therefore, not incompliance with 22 NYCRR 202.5, such a mistake, omission, defect, or irregularityshould have been disregarded, because a substantial right of a party was not prejudiced(see CPLR 2001). Under the circumstances presented here, the court erred infinding that Schneider's deposition transcript was not in admissible form.
Good Samaritan established its prima facie entitlement to judgment as a matter oflaw through the deposition testimony of the several parties, the medical records, and theexpert affirmation of Dr. Irwin Ingwer (see Farrell v Herzog, 123 AD3d 655 [2014]; France v Packy, 121 AD3d836 [2014]). Ingwer's affirmation was based on evidence in the record, and was notconclusory or unsubstantiated (see Mills v Department of Educ. of City of N.Y., 109 AD3d643 [2013]; Shields vBaktidy, 11 AD3d 671 [2004]).
"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" (Barrocales v New York MethodistHosp., 122 AD3d 648, 650 [2014] [internal quotation marks omitted])."However, a hospital can be held concurrently liable with a private attending physician ifits employees commit independent acts of negligence or the attending physician's ordersare contraindicated by normal practice" (Zhuzhingo v Milligan, 121 AD3d 1103, 1106 [2014]).Here, the evidence submitted by Good Samaritan established, prima facie, that there wereno independent acts of medical judgment on the part of Good Samaritan or its employeesapart from following the orders of Schneider, who was the plaintiff's private attendingphysician. Nor were Schneider's orders contraindicated by normal practice, such thatordinary prudence required inquiry into the correctness of those orders.
The plaintiff failed to raise a triable issue of fact in opposition to Good Samaritan'sprima facie showing. The affirmation of the plaintiff's expert, Dr. Richard Quintiliani,did not constitute competent evidence, because Quintiliani was not authorized by law topractice medicine in New York State (see CPLR 2106; Kelly v Fenton, 116 AD3d923 [2014]; Lieber v Cityof New York, 94 AD3d 715 [2012]; Palo v Latt, 270 AD2d 323 [2000]).Furthermore, even if Quintiliani's affirmation could be considered, he failed to identifyany specific departures allegedly committed by Good Samaritan. He only stated generallythat Good Samaritan, along with Schneider and Island, deviated from good and acceptedmedical practice, and caused injury to the plaintiff. Therefore, the plaintiff failed to raisea triable issue as to whether Good Samaritan may be held vicariously liable for anymalpractice by Schneider, or concurrently liable for any independent acts of negligence(see Barrocales v New YorkMethodist Hosp., 122 AD3d 648 [2014]; Muslim v Horizon Med. Group, P.C., 118 AD3d 681[2014]; Lormel [*3]v Macura, 113 AD3d 734 [2014]; Sela v Katz, 78 AD3d 681[2010]).
Furthermore, Good Samaritan established that the plaintiff has no claim against itbased on lack of informed consent. Where a private physician attends his or her patient ata hospital, it is the physician's duty to obtain the patient's informed consent. A hospitalmay only be liable where it knew or should have known that the physician was acting orwould act without the patient's informed consent (see Salandy v Bryk, 55 AD3d 147, 152 [2008]). There wasno reason for Good Samaritan to know or suspect that Schneider was acting or would actwithout the plaintiff's informed consent.
Accordingly, the Supreme Court should have granted Good Samaritan's separatemotion for summary judgment dismissing the complaint insofar as asserted against it.Chambers, J.P., Hall, Cohen and Miller, JJ., concur. [Prior Case History: 2013 NYSlip Op 30236(U).]