| Seiden v Sonstein |
| 2015 NY Slip Op 03517 [127 AD3d 1158] |
| April 29, 2015 |
| Appellate Division, Second Department |
[*1]
| Robert J. Seiden et al., Respondents, v WilliamJeffrey Sonstein, M.D., et al., Appellants, et al., Defendants. |
Connick, Myers, Haas & McNamee, PLLC, Mineola, N.Y. (Barbara A. Myersof counsel), for appellants William Jeffrey Sonstein, M.D., Northern BoulevardNeurological Surgery, P.C., Great Neck Neurological Surgery, P.C., William J. Sonstein,M.D., P.C., and Neurological Surgery, P.C.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Elliott J.Zucker of counsel), for appellants Richard Shahram Obedian, M.D., Island Spine &Sports Medicine P.C., and Richard S. Obedian, M.D., PLLC.
Bower Law P.C. (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Caryn L. Lillingand Katherine Herr Solomon], of counsel), for appellant Winthrop-University HospitalAssociation.
Duffy & Duffy, Uniondale, N.Y. (Mary D.Tierney of counsel), forrespondents.
In an action, inter alia, to recover damages for medical malpractice, the defendantsWilliam Jeffrey Sonstein, Northern Boulevard Neurological Surgery, P.C., Great NeckNeurological Surgery, P.C., William J. Sonstein, M.D., P.C., and Neurological Surgery,P.C., appeal, as limited by their brief, from so much of an order of the Supreme Court,Nassau County (McCormack, J.), entered May 6, 2013, as denied those branches of theirmotion which were for summary judgment dismissing the first and third causes of actioninsofar as asserted against them, the defendants Richard Shahram Obedian, Island Spine& Sports Medicine, P.C., and Richard S. Obedian, M.D., PLLC, separately appealfrom so much of the same order as denied those branches of their motion which were forsummary judgment dismissing the first and third causes of action insofar as assertedagainst them, and the defendant Winthrop-University Hospital Association separatelyappeals, as limited by its brief, from so much of the same order as denied those branchesof its motion which were for summary judgment dismissing the first, third, and fourthcauses of action insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with one bill of costspayable by the appellants appearing separately and filing separate briefs.
On November 7, 2007, the plaintiff, Robert J. Seiden (hereinafter Seiden), wasadmitted to the defendant Winthrop-University Hospital Association (hereinafterWinthrop), on an [*2]emergency basis with a diagnosis oflumbar disc disease/herniation with bilateral foot drop. On November 8, 2007, thedefendant William Jeffrey Sonstein, a neurologist who was affiliated with the defendantsNorthern Boulevard Neurological Surgery, P.C., Great Neck Neurological Surgery, P.C.,William J. Sonstein, M.D., P.C., and Neurological Surgery, P.C. (hereinafter collectivelythe Sonstein defendants), and the defendant Richard Shahram Obedian, an orthopedicsurgeon who was affiliated with the defendants Island Spine & Sports Medicine,P.C., and Richard S. Obedian, M.D., PLLC (hereinafter collectively the Obediandefendants), performed decompression/fusion surgery on Seiden's L3-L4 lumbar spinevertebrae. On November 9, 2007, due to post-operative complications, Dr. Sonsteinperformed a surgical evacuation of a hematoma on Seiden's lumbar spine. Thereafter,Seiden developed a cerebrospinal fluid leak at the site of the previous surgeries, and, onNovember 15, 2007, Dr. Sonstein, assisted by Dr. Obedian, operated again to repair it.During the surgery, to treat the leak, a lumbar catheter was placed directly into Seiden'sthecal sac and connected to extension tubing which was brought through the surgicaldressing to connect to an exterior drainage system. Sometime during the night ofNovember 18-19, 2007, the lumbar catheter became disconnected from the extensiontubing, breaking the closed sterile drainage system. On November 21, 2007, Seiden wasdiagnosed with nosocomial bacterial meningitis.
In the complaint, Seiden asserted causes of action alleging medical malpractice andlack of informed consent and, against Winthrop, negligence in granting attendingprivileges and hiring and retaining its employees. Seiden's wife also asserted a cause ofaction for loss of consortium and services.
Following discovery, the Sonstein defendants, the Obedian defendants, andWinthrop separately moved for summary judgment dismissing the complaint insofar asasserted against each of them. The Supreme Court granted those branches of theirmotions which were for summary judgment dismissing the second cause of action,alleging lack of informed consent, insofar as asserted against each of them, and otherwisedenied their motions.
The Supreme Court properly denied those branches of Winthrop's motion whichwere for summary judgment dismissing the first, third, and fourth causes of actioninsofar as asserted against it on the ground that it had failed to make a prima facieshowing of entitlement to such relief. "In a medical malpractice action, a defendantmoving for summary judgment has the burden of establishing the absence of anydeparture from good and accepted medical practice, or that the plaintiff was not injuredthereby" (Wall v Flushing Hosp.Med. Ctr., 78 AD3d 1043, 1044 [2010] [internal quotation marks omitted]). "Inorder to sustain this burden, the defendant must address and rebut any specificallegations of malpractice set forth in the plaintiff's bill of particulars" (id. at1045; see Lormel v Macura,113 AD3d 734, 735 [2014]).
In general, under the doctrine of respondeat superior, a hospital may be heldvicariously liable for the negligence or malpractice of its employees acting within thescope of employment, but not for negligent treatment provided by an independentphysician, as when the physician is retained by the patient himself (see e.g. Hill v St.Clare's Hosp., 67 NY2d 72, 79 [1986]). Thus, "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" (Fink v DeAngelis, 117 AD3d 894, 896 [2014] [internalquotation marks omitted]; seeZhuzhingo v Milligan, 121 AD3d 1103, 1106 [2014]). A hospital may also beliable on a negligent hiring and/or retention theory to the extent that its employeecommitted an independent act of negligence outside the scope of employment, where thehospital was aware of, or reasonably should have foreseen, the employee's propensity tocommit such an act (see Doe vGuthrie Clinic, Ltd., 22 NY3d 480, 485 [2014]; Judith M. v Sisters ofCharity Hosp., 93 NY2d 932, 933-934 [1999]; Rodriguez v New York City Tr. Auth., 95 AD3d 412, 413[2012]).
Here, the plaintiffs alleged in their supplemental bill of particulars that Winthrop'snursing staff was independently negligent in that it "allowed [Seiden's] spinal catheter tobecome and remain an open portal for an infectious process" and "negligently allowed[him] to contract [*3]nosocomial meningitis." The expertaffirmation Winthrop submitted in its initial moving papers did not specifically addressthese allegations. Consequently, Winthrop failed to establish, prima facie, that its staffcommitted no independent act of negligence in the care it rendered to Seiden or that itsalleged acts or omissions did not proximately cause Seiden's injuries (see Lormel vMacura, 113 AD3d at 735-736; Wall v Flushing Hosp. Med. Ctr., 78 AD3dat 1045). Winthrop did not contend that it could not be liable under the doctrine ofrespondeat superior or on a negligent hiring/retention theory. Accordingly, Winthropfailed to demonstrate its prima facie entitlement to summary judgment dismissing thefirst, third, and fourth causes of action insofar as asserted against it, and those branchesof its motion which were for such relief were properly denied regardless of thesufficiency of the plaintiffs' opposition papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]).
The Supreme Court also properly denied those branches of the Sonstein defendants'motion which were for summary judgment dismissing the first and third causes of actioninsofar as asserted against them. The Sonstein defendants demonstrated their prima facieentitlement to judgment as a matter of law on these causes of action by submitting anaffirmation from an expert neurologist that was sufficient to establish, prima facie, thatDr. Sonstein did not depart from good and accepted medical practice in his treatment ofSeiden (see Trauring vGendal, 121 AD3d 1097, 1098 [2014]; Olgun v Cipolla, 82 AD3d 1186, 1187 [2011]). However,the expert affidavit submitted by the plaintiffs in opposition was sufficient to raise atriable issue of fact as to whether Dr. Sonstein departed from good and accepted medicalpractice in his treatment of Seiden. The Supreme Court properly considered the affidavitnotwithstanding that it was subscribed and sworn to out of state and not accompanied bya certificate of conformity as required by CPLR 2309 (c), as such a defect is not fatal andno substantial right of the appellants was prejudiced by disregarding it (see Todd v Green, 122 AD3d831, 832 [2014]; MidfirstBank v Agho, 121 AD3d 343, 351-352 [2014]; Matos v Salem Truck Leasing,105 AD3d 916, 917 [2013]). Contrary to the Sonstein defendants' contention, theopinions asserted by the plaintiffs' expert as to Dr. Sonstein's departures from properpractice were not conclusory or unsupported by the record (see Gressman vStephen-Johnson, 122 AD3d 904, 906 [2014]; Robinson v Bronx-Lebanon Hosp.Ctr., 113 AD3d 545, 546 [2014]; Olgun v Cipolla, 82 AD3d at 1187).Contrary to the Sonstein defendants' further contention, in order to defeat summaryjudgment, the plaintiffs were not required to raise a triable issue of fact as to causationsince the Sonstein defendants' expert affirmation did not establish, prima facie, that Dr.Sonstein's alleged deviations did not proximately cause Seiden's claimed injuries (see Stukas v Streiter, 83 AD3d18, 30 [2011]).
Likewise, the Supreme Court properly denied those branches of the Obediandefendants' motion which were for summary judgment dismissing the first and thirdcauses of action insofar as asserted against them. The Obedian defendants demonstratedtheir prima facie entitlement to judgment as a matter of law on these causes of action bysubmitting an affirmation from an expert orthopedic surgeon establishing, prima facie,that Dr. Obedian did not depart from good and accepted medical practice in his treatmentof Seiden (see Trauring v Gendal, 121 AD3d at 1098; Olgun v Cipolla,82 AD3d at 1187). However, the affidavit of the plaintiffs' expert was sufficient to raisea triable issue of fact as to whether Dr. Obedian departed from good and acceptedmedical practice in his treatment of Seiden. The plaintiffs were not required todemonstrate that Dr. Obedian's alleged departures from proper standards proximatelycaused Seiden's injuries because the Obedian defendants' expert affirmation did not makea prima facie showing as to that element (see Stukas v Streiter, 83 AD3d at 30).Dillon, J.P., Dickerson, Hall and LaSalle, JJ., concur.