| Doria v Benisch |
| 2015 NY Slip Op 06109 [130 AD3d 777] |
| July 15, 2015 |
| Appellate Division, Second Department |
[*1]
| Gary Doria et al., Respondents, v David L.Benisch, M.D., et al., Defendants, and Melville Surgery Center, LLC,Appellant. |
Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell and DavidBloom of counsel), for appellant.
In an action, inter alia, to recover damages for medical malpractice, etc., thedefendant Melville Surgery Center, LLC, appeals from so much of an order of theSupreme Court, Suffolk County (Martin, J,), entered November 21, 2013, as denied itsmotion for summary judgment dismissing the complaint insofar as asserted againstit.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the motion of the defendant Melville Surgery Center, LLC, for summary judgmentdismissing the complaint insofar as asserted against it is granted.
Upon the referral of another physician, the plaintiff Gary Doria (hereinafter theinjured plaintiff) sought treatment from the defendant physician David Benisch. Afterexamining the plaintiff, Benisch recommended surgery. Benisch told the plaintiff that hewould perform the surgery at the free-standing surgery center operated by MelvilleSurgery Center, LLC (hereinafter Melville), and the surgery was scheduled for thefollowing week. Benisch explained the specific procedure he would perform, andobtained the injured plaintiff's written consent. The following week, Benisch, assisted byMelville's staff, performed the surgery. Although the surgery appeared to have gone well,complications developed later. The injured plaintiff, and his wife suing derivatively,commenced this action against Benisch and other physicians, various professionalcorporations, and Melville, alleging, among other things, medical malpractice and lack ofinformed consent. After discovery was completed, Melville moved for summaryjudgment dismissing the complaint insofar as asserted against it. The Supreme Courtdenied Melville's motion, and Melville appeals.
Generally speaking, a hospital may not be held vicariously liable for the negligenceof a private attending physician chosen by the patient (see Tomeo v Beccia, 127AD3d 1071, 1073 [2015]). Moreover, so long as the resident physicians and nursesemployed by the hospital have merely carried out that private attending physician'sorders, a hospital may not be held vicariously liable for resulting injuries (see Seiden v Sonstein, 127AD3d 1158, 1160 [2015]). These rules will not, however, shield a hospital fromliability in three situations. The first is when the private physician's orders "so greatlydeviate from normal [medical] practice that the [hospital's employees] should be heldliable for failing to intervene" (Bellafiore v Ricotta, 83 AD3d 632, 633 [2011]). Putanother way, a hospital may be held liable when the staff follows orders despite knowing"that the doctor's orders are so clearly contraindicated by normal practice that ordinaryprudence requires inquiry into the correctness of the orders" (Toth v CommunityHosp. at Glen Cove, 22 NY2d 255, 265 n 3 [1968]; see [*2]France v Packy, 121 AD3d 836, 837 [2014];see generally Fiorentino v Wenger, 19 NY2d 407, 414-417 [1967]). Second, ahospital may be held liable when its employees have committed independent acts ofnegligence (see Tomeo v Beccia, 127 AD3d at 1073). Third, a hospital may beheld liable for the negligence of a private, nonemployee physician on a theory ofostensible or apparent agency (see Sampson v Contillo, 55 AD3d 588, 590 [2008]; seegenerally Hill v St. Clare's Hosp., 67 NY2d 72, 80-81 [1986]).
With respect to a cause of action alleging lack of informed consent, "where a privatephysician attends his or her patient at the facilities of a hospital, it is the duty of thephysician, not the hospital, to obtain the patient's informed consent" (Salandy v Bryk, 55 AD3d147, 152 [2008]).
Here, Melville established its prima facie entitlement to judgment as a matter of lawdismissing the causes of action alleging medical malpractice and lack of informedconsent insofar as asserted against it. Among other things, Melville established thatBenisch was not its employee, and that the injured plaintiff chose Benisch as his privatephysician without knowing of any connection between him and Melville. Further,Melville established, prima facie, that none of Benisch's orders was so clearlycontraindicated by standard medical practice that its employees had a duty to inquire as totheir correctness before following them. Finally, Melville established, prima facie, thatnone of its employees committed any independent act of negligence (see Barrocales v New YorkMethodist Hosp., 122 AD3d 648, 650 [2014]; Corletta v Fischer, 101 AD3d929, 930 [2012]; Sullivan vSirop, 74 AD3d 1326, 1328 [2010]). In opposition, the plaintiffs failed to raise atriable issue of fact in connection with either of these two causes of action.
Accordingly, the Supreme Court should have granted Melville's motion for summaryjudgment dismissing the causes of action alleging medical malpractice and lack ofinformed consent insofar as asserted against it. Inasmuch as the derivative causes ofaction do not exist independently of the injured plaintiff's causes of action, that branch ofMelville's motion which was for summary judgment dismissing the derivative cause ofaction insofar asserted against it by the injured plaintiff's wife should also have beengranted (see Klein vMetropolitan Child Servs., Inc., 100 AD3d 708, 711 [2012]). Balkin, J.P.,Austin, Miller and Maltese, JJ., concur.