Summary
denying summary judgment to defendant hospital because genuine issues of material fact existed as to whether the patient's referral to hospital's podiatry clinic, generally, rather than to a specific doctor, rendered the hospital liable under agency principles
Summary of this case from I.M. v. United StatesOpinion
12-15-2016
Enrico MEZZONE, Plaintiff–Respondent, v. Emilio GOETZ, D.P.M., Defendant, Debbie Bautista, D.P.M., et al., Defendants–Appellants.
Feldman Kieffer, LLP, Buffalo (Stephen M. Sorrels of counsel), for Debbie Bautista, D.P.M., appellant. Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for Chidi Ogbonna, D.P.M. and St. Barnabas Hospital, appellants. Kaufman Borgeest & Ryan LLP, Valhalla (Edward J. Guardaro, Jr. of counsel), for David Gordon, D.P.M., appellant. James W. Tuffin, Islandia, for Doctors United Clinic, appellant. Sullivan Papain Block McGrath & Cannavo, P.C., New York (Stephen C. Glasser of counsel), for respondent.
Feldman Kieffer, LLP, Buffalo (Stephen M. Sorrels of counsel), for Debbie Bautista, D.P.M., appellant.
Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for Chidi Ogbonna, D.P.M. and St. Barnabas Hospital, appellants.
Kaufman Borgeest & Ryan LLP, Valhalla (Edward J. Guardaro, Jr. of counsel), for David Gordon, D.P.M., appellant.
James W. Tuffin, Islandia, for Doctors United Clinic, appellant.
Sullivan Papain Block McGrath & Cannavo, P.C., New York (Stephen C. Glasser of counsel), for respondent.
SWEENY, J.P., RENWICK, RICHTER, MANZANET–DANIELS, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered May 4, 2015, which denied the motions of defendants Debbie Bautista, D.P.M., Chidi Ogbonna, D.P.M., St. Barnabas Hospital, Davis Gordon, D.P.M., and Doctors United Clinic, for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to the extent of dismissing all claims as against Chidi Ogbonna, D.P.M., and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.
Defendants Debbie Bautista, D.P.M., Davis Gordon, D.P.M., and Doctors United Clinic failed to make a prima facie showing of entitlement to summary judgment. In reaching the conclusion that no infection was present at the time defendants treated plaintiff, their respective experts relied in part upon notations in plaintiff's record with St. Barnabas stating that on June 22, 2010, the surgical wound site was clean and free from drainage. However, plaintiff testified that his left foot wound did have pus emanating from the wound site, plaintiff's expert opined that Dr. Ogbonna had switched his notes for the left and right foot, and the expert for St. Barnabas conceded that the notation was likely an error. Since defendants' experts relied upon incorrect records, their opinions are insufficient to set forth entitlement to judgment as a matter of law (see Fleming v. Pedinol Pharmacal, Inc., 70 A.D.3d 422, 893 N.Y.S.2d 551 [1st Dept.2010] ).
In any event, plaintiff's expert raised questions of fact barring summary resolution of plaintiffs' claims against those defendants (see Cregan v. Sachs, 65 A.D.3d 101, 108–109, 879 N.Y.S.2d 440 [1st Dept.2009] ). Defendants' argument that plaintiff's expert, an infectious disease specialist but not a podiatrist, was incompetent to offer an opinion on the care of plaintiff, who suffered an infection stemming from podiatric surgery, is unpersuasive (see Rojas v. Palese, 94 A.D.3d 557, 943 N.Y.S.2d 22 [1st Dept.2012] ; Williams–Simmons v. Golden, 71 A.D.3d 413, 895 N.Y.S.2d 404 [1st Dept.2010] ).
Summary judgment should have been granted to defendant Dr. Ogbonna, a resident whose care of plaintiff was at all times under the supervision of attending physicians (see Boston v. Weissbart, 62 A.D.3d 517, 879 N.Y.S.2d 108 [1st Dept.2009] ). Dismissal of the case as against Dr. Ogbonna, however, does not necessitate dismissal as to St. Barnabas. Evidence exists that plaintiff was referred to the podiatry clinic generally, and not to any specific doctor, and thus questions of ostensible agency with regard to Dr. Bautista and Dr. Emilio Goetz bar dismissal of the claims against St. Barnabas (see Welch v. Scheinfeld, 21 A.D.3d 802, 808–809, 801 N.Y.S.2d 277 [1st Dept.2005] ; see also Sarivola v. Brookdale Hosp. &
Med. Ctr., 204 A.D.2d 245, 612 N.Y.S.2d 151 [1st Dept.1994], lv. denied 85 N.Y.2d 805, 626 N.Y.S.2d 756, 650 N.E.2d 415 [1995] ).