| Spiegel v Beth Israel Med. Ctr.-Kings Hwy. Div. |
| 2017 NY Slip Op 03211 [149 AD3d 1127] |
| April 26, 2017 |
| Appellate Division, Second Department |
[*1]
| Michael Spiegel et al., Appellants, v Beth IsraelMedical Center-Kings Highway Division et al., Respondents, et al.,Defendant. |
Stefano A. Filippazzo, P.C., Brooklyn, NY (Stefano A. Filippazzo and David Shumer ofcounsel), for appellants.
Heidell, Pittoni, Murphy & Bach, LLP, White Plains, NY (Daniel S. Ratner of counsel),for respondents.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appealfrom (1) an order of the Supreme Court, Kings County (Jacobson, J.), dated November 10, 2014,which granted the motion of the defendants Beth Israel Medical Center-Kings Highway Division,Jonathan Weinstein, and Svetlana Fontaine for summary judgment dismissing the complaintinsofar as asserted against them, and (2) so much of an order of the same court dated March 18,2015, as, upon reargument, adhered to its original determination in the order dated November 10,2014.
Ordered that the appeal from the order dated November 10, 2014, is dismissed, as that orderwas superseded by the order dated March 18, 2015, made upon reargument; and it is further,
Ordered that the order dated March 18, 2015, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the respondents.
The plaintiffs commenced this action against Beth Israel Medical Center-Kings HighwayDivision (hereinafter the hospital), Jonathan Weinstein, and Svetlana Fontaine (hereinaftercollectively the Beth Israel defendants), among others, to recover damages for, inter alia, medicalmalpractice, alleging that they failed to timely diagnose and treat the plaintiff Michael Spiegel(hereinafter Spiegel) for cholecystitis (gall bladder inflammation). The Beth Israel defendantsmoved for summary judgment dismissing the complaint insofar as asserted against them. In anorder dated November 10, 2014, the Supreme Court granted the motion. Thereafter, the plaintiffsmoved for leave to reargue their opposition to the motion. In an order dated March 18, 2015, theSupreme Court, upon reargument, adhered to its original determination. The plaintiffsappeal.
"The elements of a cause of action for medical malpractice include 'a deviation or [*2]departure from [the] accepted standard of care and evidence that thedeviation or departure was a proximate cause of injury or damage' " (Schussheim v Barazani, 136 AD3d787, 790 [2016], quoting Arocho vD. Kruger, P.A., 110 AD3d 749, 750 [2013]; see Gillespie v New York Hosp. Queens, 96 AD3d 901 [2012]; Hamilton v Good Samaritan Hosp. ofSuffern, N.Y., 73 AD3d 697 [2010]). To prevail on a motion for summary judgment in amedical malpractice action, the defendant must "make a prima facie showing either that therewas no departure from accepted medical practice, or that any departure was not a proximatecause of the patient's injuries" (Matos vKhan, 119 AD3d 909, 910 [2014]). In response, the plaintiff need only raise an issue offact regarding "the element or elements on which the defendant has made its prima facieshowing" (Mitchell v Grace Plaza ofGreat Neck, Inc., 115 AD3d 819, 819 [2014]; see Stukas v Streiter, 83 AD3d 18 [2011]). "General allegations ofmedical malpractice, merely conclusory and unsupported by competent evidence tending toestablish the essential elements of medical malpractice, are insufficient to defeat defendantphysician's summary judgment motion" (Alvarez v Prospect Hosp., 68 NY2d 320, 325[1986]).
Here, the Beth Israel defendants demonstrated their prima facie entitlement to judgment as amatter of law by submitting evidence establishing that there was no departure from good andaccepted practice by them and that, in any event, any departure was not a proximate cause of thealleged injuries (see Matos v Khan, 119 AD3d at 910; Stukas v Streiter, 83 AD3d 18 [2011]). In opposition to the BethIsrael defendants' prima facie showing, the plaintiffs' submissions, including the affirmation ofthe plaintiffs' expert, failed to raise a triable issue of fact as to whether any alleged departure wasthe proximate cause of the alleged injuries. The plaintiffs' expert's opinion that an earlierdiagnosis of gallstones would have prevented Spiegel from developing cholecystitis, orundergoing a laparoscopic cholecystectomy or removal of a gallbladder remnant, eight monthslater, is speculative and without basis in the record, and, therefore, it was insufficient to raise atriable issue of fact (see Mitchell v Grace Plaza of Great Neck, Inc., 115 AD3d at 820; Shister v City of New York, 63 AD3d1032, 1035 [2009]; Rodriguez vMontefiore Med. Ctr., 28 AD3d 357 [2006]).
Accordingly, upon reargument, the Supreme Court properly adhered to its originaldetermination granting that branch of the Beth Israel defendants' motion which was for summaryjudgment dismissing the medical malpractice cause of action insofar as asserted against them(see Biggs v Mary Immaculate Hosp., 303 AD2d 702 [2003]).
Furthermore, upon reargument, the Supreme Court properly adhered to its originaldetermination granting that branch of the Beth Israel defendants' motion which was for summaryjudgment dismissing the complaint insofar as asserted against the hospital with respect to thehospital's vicarious liability for the defendant Merab Krikhely, the surgeon who performed thelaparoscopic cholecystectomy on Spiegel. "Generally, a hospital cannot be held vicariously liablefor the malpractice of a private attending physician who is not its employee" (Quezada v O'Reilly-Green, 24 AD3d744, 746 [2005]; see Sampson vContillo, 55 AD3d 588, 589 [2008]; Dragotta v Southampton Hosp., 39 AD3d 697, 698 [2007]).However, " 'an exception to the general rule exists where a patient comes to theemergency room seeking treatment from the hospital and not from a particular physician of thepatient's choosing' " (Schultz vShreedhar, 66 AD3d 666, 666 [2009], quoting Salvatore v Winthrop Univ. Med. Ctr., 36 AD3d 887, 888 [2007];see Sampson v Contillo, 55 AD3d at 589).
Here, the Beth Israel defendants established, prima facie, that Krikhely was a privateattending physician who was not an employee of the hospital and who was referred to Spiegel byhis private physician (see Giambona vHines, 104 AD3d 807, 811 [2013]; Corletta v Fischer, 101 AD3d 929, 930 [2012]). Furthermore, theBeth Israel defendants made a prima facie showing that the emergency room exception wasinapplicable by demonstrating that Spiegel was referred to Krikhely's care by his privatephysician (see Giambona v Hines, 104 AD3d at 811; Schultz v Shreedhar, 66AD3d at 666-667; Bevelacqua vYonkers Gen. Hosp., 10 AD3d 668 [2004]). In opposition, the plaintiffs failed to rebutthe prima facie showing that Krikhely was not an employee of the hospital and that theemergency room exception did not apply (see Thurman v United Health Servs. Hosps., Inc., 39 AD3d 934,937 [2007]; Bevelacqua v Yonkers Gen.Hosp., 10 AD3d 668 [2004];Orgovan v Bloom, 7 AD3d 770, 771 [2004]). Moreover, the plaintiffs failed to raise atriable issue of fact as to whether the hospital's staff committed independent acts of malpracticeand as to whether any order given by Krikhely was so contraindicated that it should not havebeen followed by the hospital's staff (see Toth v Bloshinsky, [*3]39 AD3d 848, 850 [2007]; Cook v Reisner, 295 AD2d 466,467 [2002]). Furthermore, the plaintiffs failed to raise a triable issue of fact as to whether thehospital may be held liable under a theory of ostensible or apparent agency (see Christopherson v Queens-Long Is. Med.Group, P.C., 17 AD3d 393, 394 [2005]).
With regard to the cause of action alleging lack of informed consent, the plaintiffs failed toraise a triable issue of fact in opposition to the Beth Israel defendants' prima facie showing ofentitlement to judgment as a matter of law dismissing that cause of action insofar as assertedagainst them, as the plaintiffs did not address or specifically oppose that branch of the motionwhich was referable to that cause of action (see Rebozo v Wilen, 41 AD3d 457, 459 [2007]; see also Raucci v Shinbrot, 127 AD3d839, 843 [2015]; Bhim vDourmashkin, 123 AD3d 862 [2014]; Deutsch v Chaglassian, 71 AD3d 718, 719-720 [2010]).Accordingly, upon reargument, the Supreme Court properly adhered to its original determinationgranting that branch of the Beth Israel defendants' motion which was for summary judgmentdismissing the cause of action alleging lack of informed consent insofar as asserted against them.Dillon, J.P., Balkin, Austin and Connolly, JJ., concur.