Opinion
10908/03.
Decided January 13, 2009.
Upon the foregoing papers, defendant Andrew Miller, M.D., by Amended Notice of Motion, seeks summary judgment dismissal (CPLR 3212) of the plaintiff's complaint against him.
The Brookdale University Hospital and Medical Center, s/h/a Brookdale University and Hospital Center, cross-moves for summary judgment dismissal (CPLR 3212) of the complaint against it.
PROCEDURAL BACKGROUND AND FACTS
Plaintiff commenced this action for medical malpractice on or about March 24, 2003. Issue was joined by Dr. Miller on or about October 14, 2003 and by Brookdale on or about May 22, 2003. Following discovery, plaintiff filed a Note of Issue and Certificate of Readiness on April 23, 2008. The instant motions followed.
On September 24, 2000 at 6:28 p.m., the 38 year old plaintiff was brought by ambulance to Brookdale Hospital, as he reported having injured his knee(s) after jumping over a fence. He was examined in the emergency room by Dr. Sean Lager, a surgical resident, who found swelling, tenderness and a deformity of the left knee. Dr. Lager also noted complaints of pain with movement of both lower knees, that plaintiff exhibited tenderness in the left leg below the patella and tenderness in the right leg in the area of the lateral femur, and that plaintiff was unable to extend either leg due to pain. His impression was ruptured left patella tendon and right thigh hematoma. X-rays performed at 1:20 a.m. on September 25th showed a ruptured left patella.
Plaintiff was admitted to the service of defendant Dr. Miller, the orthopedic surgeon attending on call. The plan was to admit plaintiff for observation and to schedule operative repair of the left patella tendon.
On September 25th at 2:30 p.m. Dr. Lager explained the risks and benefits of the left patella tendon repair to plaintiff, "includ[ing] but not limited to bleeding, infection, nerve damage, loss of limb, and death." A "Consent for Operation and/or Procedure" was prepared by Dr. Lager and signed by him and by the plaintiff.
Dr. Miller testified that on September 26th he wrote the following addendum to Dr. Lager's September 25th admitting record: "[Sustained] tear of the right quadriceps and tear of the left infra-patella tendon." Dr. Miller indicated that he made this note at about 8:00 p.m. on September 26th while in the holding area outside the operating room. Dr. Miller testified that he also wrote an addendum to the "Consent for Operation and/or Procedure" document.
According to Dr. Miller, Dr. Lager had failed to diagnose the quadriceps tear of plaintiff's right knee. Dr. Miller based this conclusion upon the following findings made upon his own physical examination of plaintiff's right knee on September 26th: hematoma over the anterior aspect of the distal third of the right thigh; a palpable defect in the tendinous portion of the quadriceps mechanism; 2/5 strength of the extensor mechanism; and inability to straight-leg raise against gravity.
Dr. Miller testified that prior to going into the operating room he advised plaintiff that plaintiff "also had a rupture to the right quadriceps tendon and [that] if it wasn't repaired he would never walk again." Dr. Miller stated that he advised plaintiff that following surgery both legs would be immobilized and that he explained the risks, benefits and alternatives of the procedure. According to Dr. Miller, this conversation with plaintiff took about ten minutes. Dr. Miller said he then wrote an addendum to the "Consent for Operation and/or Procedure," to reflect the addition of the right knee surgery, and placed his initials next to it. However, the plaintiff testified that he was receiving pain medication and did not recall any doctor examining his right leg or having any conversation with Dr. Miller prior to the surgery.
Dr. Miller was assisted in the operating room by Dr. David Zaret.
Amended Motion of Andrew Miller, M.D.
Plaintiff in his Bill of Particulars of November 7, 2003 and July 9, 2004 alleges that Dr. Miller improperly diagnosed a condition in his right knee and performed surgery on the right knee which was contraindicated, without obtaining plaintiff's informed consent; failed to conduct proper preoperative examinations and studies [including, not ensuring that the extension mechanism of the knees were intact, not treating plaintiff with a stabilizer or cylindrical cast, not infiltrating the joints with local anesthesia, and not utilizing an immobilizer or determining whether plaintiff had a torn cruciate ligament]; negligently performed surgery to both knees; failed to render appropriate postoperative care; and prematurely discharged plaintiff from the hospital.
In support of his motion for summary judgment Dr. Miller supplies the affirmation of Dr. Ronald Light, a board certified orthopedic surgeon who, upon review of the police and ambulance reports, medical reports [including physical therapy and clinical records, x-rays and MRIs], pleadings and parties' deposition testimony, opines that the medical care
provided by Dr. Miller to Elvis Rosado "at all times conformed to good and accepted standards as such standards existed during the time of defendant's treatment." Dr. Light further concludes that "there were no departures . . . by Dr. Miller which were a proximate cause of plaintiff Elvis Rosado's alleged injuries."
More specifically, Dr. Light avers that the September 26, 2000 surgery to repair a partial tear of plaintiff's right quadriceps tendon was indicated. He points out that the admitting nurse noted complaints by plaintiff of pain with movement of both legs as did the orthopedic resident Dr. Sean Lager. On September 25, 2000 Dr. Lager found tenderness of the lateral right femur on palpation as well as an inability to extend the right leg. During his re-examination of September 26, Dr. Miller noted a palpable defect in Mr. Rosado's right quadriceps tendon at the site of its insertion into the proximal pole of the patella. There was 2/5 strength in the extensor mechanism of the right knee and the patient was unable to straight leg raise on the right. According to Dr. Light, the interoperative findings of September 26, 2000, that 1/3 of plaintiff's musculotendinous junction on the right quadriceps tendon had separated and that the right quadriceps tendon was partially torn, confirmed the preoperative clinical diagnosis.
With respect to the left knee, Dr. Light notes that preoperative left lateral x-rays revealed that the left patella was riding high out of its normal anatomical position which is pathognomonic for a ruptured left patellar tendon, requiring surgical repair. Treating the knees preoperatively with a knee stabilizer or immobilizer in a hospital setting was unnecessary as plaintiff was about to undergo surgery. Nor was infiltration of the knee joints with local anesthesia required, as Dr. Miller had already detected a defect in the right knee.
On the issue of informed consent, Dr. Light opines that it was unnecessary to have the patient re-execute a separate consent form for Dr. Miller's repair of plaintiff's partial tear of the right quadriceps tendon as the initial consent form, reviewed with plaintiff by Dr. Lager, included consent for repair of the left patella tendon rupture and "any other indicated procedure." It, therefore, was appropriate for Dr. Miller to, as an addendum to Dr. Lager's September 25th admitting history and physical examination progress note, document his findings as to the right knee, and to add "and right quadriceps tendon repair" to the consent form after his discussion with the patient.
Dr. Light points out that the resident and first assistant surgeon, Dr. David Zaret, also records in his September 26, 2000 progress note that prior to surgery the patient complained of increased pain in his right knee, that a repeat evaluation by Dr. Miller was suggestive of a right quadriceps tendon tear and that a consent for the right leg surgery, therefore, was obtained prior to going into the operating room.
Dr. Light offers that the post operative treatment which included placing plaintiff in bilateral cylinder casts was appropriate, as was the discharge of plaintiff from Brookdale on September 28 after a physical therapy consult determined that plaintiff had good rehabilitative potential.
Finally, Dr. Light opines that the surgeries were not a proximate cause of any injury to plaintiff. An MRI on the right knee performed February 22, 2003 revealed that the right quadriceps tendon repair was intact; and an MRI of the left knee performed February 6, 2003 reflects the left patellar tendon repair was intact. Moreover, contends Dr. Light, plaintiff's complaints of knee pain are due to the initial injury, to wit, the jump and fall onto his knees or some pre-existing condition as reflected in the pre-operative left knee x-ray. The surgeries by Dr. Miller were for the sole purpose of restoring function to both knees, which was achieved.
Cross-Motion of Brookdale Hospital
Plaintiff in his Bill of Particulars of November 7, 2003 and January 25, 2005 alleges that Brookdale, its agents, servants and employees were negligent and committed malpractice in improperly diagnosing the condition of plaintiff's right knee, performing unnecessary surgery on the right knee without plaintiff's full consent and causing further injury to the right knee; negligently performing surgery to the left knee, requiring additional treatment to that knee; and wrongfully discharging the plaintiff when he required additional care.
In support of its motion for summary judgment Brookdale offers the affirmation of Dr. Shearwood McClelland, a board-certified orthopedic surgeon who is an attending physician at Harlem Hospital. Dr. McClelland avers that he has reviewed the Brookdale records, deposition transcripts and pleadings and that there was no departure by hospital staff from accepted standards of medical care. In his opinion Dr. Lager, an orthopedic surgical resident, functioned under the direction of Dr. Miller, an attending orthopedic surgeon, as is customary in a teaching hospital. The resident is "generally responsible for the actions and/or inactions taken by a resident" with respect to a patient's care. As is customary, Dr. Lager, the resident, performed the initial assessment which was reviewed by Dr. Miller, who also performed his own physical examination of plaintiff. Dr. McClelland opines that "while the resident, Dr. Lager, may have neglected to document the plaintiff's right quadriceps rupture at the time of his initial assessment, this omission is in no way a deviation' from accepted standards of medical care and treatment. To the contrary, a resident's occasional omission with respect to a patient['s] diagnosis is something that is expected in a teaching hospital. The fact that a resident may make an omission is one of the reasons why attending physicians routinely perform their own examinations and assessments in addition to those performed by residents." "Moreover, Dr. Lager's failure to note plaintiff's right quadriceps rupture did not cause and/or contribute to plaintiff's alleged injuries."
Finally, Dr. McClelland opines that while attendings regularly delegate to residents the duty of obtaining a patient's informed consent, the responsibility for ensuring that proper consent is obtained remains that of the attending physician. Thus, he concludes, neither Dr. Lager nor his employer, Brookdale, may be held responsible for Dr. Lager's failure to obtain plaintiff's informed consent to the right quadriceps repair.
Plaintiff's Opposition
In opposition to both the motion and cross-motion plaintiff argues that there are issues of fact as to whether defendants, in particular Dr. Miller, wrongly operated on plaintiff's right leg and as to whether defendants "jointly [undertook] an elaborate cover-up scheme" following the improper operation. Plaintiff supplies his own affidavit of September 15, 2008 and the affirmation of Dr. Howard S. Schwartz, a Diplomat of the National Board of Medical Examiners and of the American Board of Internal Medicine, with an active practice in hospital risk management, trauma, emergency medicine and critical care. Dr. Schwartz avers that he has reviewed the police and ambulance reports, plaintiff's medical records, the pleadings and deposition transcripts, and the affirmations of Doctors Light and McClelland. Dr. Schwartz concludes that "there is valid evidence to support a conclusion that Dr. Miller operated on the wrong knee, made improper alterations to the medical records and attempted to cover-up the error." Moreover, "the substandard care rendered by Dr. Miller was a proximate cause of injuries to plaintiff . . . including a persistent [sic] pain syndrome of the right knee."
Dr. Schwartz notes that there were no x-rays or CT scans supporting a diagnosis of ruptured right quadriceps tendon. He opines that such a diagnosis is associated with substantial pain and limitation of movement and could not possibly have been "overlooked" by Dr. Lager. The quadriceps and patellar tendons are parts of the extensor mechanism of the knee which allow the leg to straighten and kick. Plaintiff's complaint to the police, EMS and to the triage nurse was that he had injured his left knee. Dr. Lager, the admitting physician, upon examination, rendered a diagnosis of ruptured left patella tendon. Notes at 4:00 a.m., 10:00 a.m. and 2:30 p.m. prior to surgery refer only to the left patella repair. Dr. Lager did not discuss right knee surgery with Mr. Rosado. Moreover, Dr. Schwartz opines, while the consent form includes the language " . . . left leg and any other indicated procedure," it would be contraindicated to operate on the right knee under these circumstances.
In the opinion of Dr. Schwartz the language of the Report of Operation further supports a conclusion that the right knee operation was a mistake. Dr. Schwartz notes that the only "Procedure" described in the Report is a left patella tendon repair. He therefore suggests that after opening the right knee and finding no abnormality, the operation was then performed on the correct knee. In his view, the reason why there is no mention of a right quadriceps tendon repair in the Procedure' section of the Report of Operation, which was dictated by Dr. Lee on September 27, 2000, is that there was no such rupture present and no such procedure performed. In Dr. Schwartz' opinion Dr. Miller's admitted alterations of Dr. Lager's initial assessment and of the consent form, is consistent with a pattern of covering up an erroneous diagnosis.
Dr. Schwartz also concludes that Mr. Rosado "never gave his consent to have a surgical procedure to his right quadriceps tendon," noting that plaintiff testified that he did not recall speaking with Dr. Miller before the surgery and was "in shock" upon noticing in the Recovery Room that both legs were in casts. Dr. Schwartz further concludes that Dr. Miller's pre-operative clinical examination of Mr. Rosado's knees were inadequate.
In his affidavit, supplied in opposition to the motions, plaintiff avers that he advised EMS, the Police Department and emergency room staff that he had injured his left knee. Plaintiff avers that his right leg was not injured and that, in fact, he was able to hop and stand on his right leg. Mr. Rosado denies that Dr. Miller ever informed him of the right quadriceps tendon tear or that he ever gave continued . . . permission to anyone to operate on both legs. Plaintiff affirms that the "[f]irst and only time [he] met Dr. Miller was immediately before the surgery" at which time Dr. Miller "only informed me that he would correct the left patellar tendon rupture."
Dr. Schwartz rejects the conclusions reached by Doctors Light and McClelland on the grounds that they either lack support in the medical records or on the grounds that the records upon which they rely were fabricated following the fictitious right knee surgery.
With respect to Brookdale, Dr. Schwartz opines that its operating room nursing staff was charged with the responsibility to prepare Mr. Rosado for the procedure and to make sure that the operation was performed on the correct leg. Dr. Schwartz avers that "the nursing staff [was] present in the operating room when defendant Dr. Miller operated on the wrong knee and there was a failure of the nursing staff in the operating room to properly document the correct or proper procedure to be done on the left knee."
Finally, Dr. Schwartz opines that the alleged surgical repair of the right quadriceps tendon caused Mr. Rosado "to suffer a pain syndrome" that was not present prior to September 26, 2000.
Replies of Miller and Brookdale
In their replies, the defendants argue that plaintiff's claims that the surgery to his right knee was unnecessary, without his consent and the subject of a cover-up are new claims and are being raised for the first time in opposition to their summary judgment motions. They maintain that the terms "contraindicated surgery," "improper surgery" and "negligent surgery," as used in the pleadings, failed to provide them with notice of the "mistaken" surgery and "coverup" now being claimed. Moreover, defendants argue, plaintiff's present claim of mistake sounds in battery and is time-barred ( see Cerilli v. Kezis, 306 AD2d 430; CPLR 215). Finally, defendants argue, plaintiff has offered no expert medical opinion that the procedure on the left patella tendon was improperly performed.
Brookdale also provides a further affirmation of Dr. McClelland who avers that the circulating and scrub nurses had "no duty to direct surgeons on the indication for, propriety of and/or the technique involved in, surgical procedures." Moreover, "plaintiff's medical record indeed documents injury to his right lower extremity."
DISCUSSION
In his Bill of Particulars, plaintiff alleges that the defendant Miller "improperly diagnosed plaintiff's condition in his right knee and in doing so, he improperly and negligently performed surgery on plaintiff's right knee without his full consent." It is also alleged that Miller performed an "invasive procedure that was contraindicated." Plaintiff similarly alleges that the defendant Brookdale "performed unnecessary surgery on [his] right knee without his full consent," "despite the fact that such surgery was contraindicated." These allegations were sufficient to provide defendants with notice of plaintiff's claim that the right knee surgery was not only negligently performed but that it was performed in error (CPLR 3013). Moreover, these issues, as well as the nature and timing of Dr. Miller's modifications to the medical records, were explored at some length during the depositions of the parties. Further, modern practice permits a plaintiff to successfully oppose a motion for summary judgment by relying on an unpleaded cause of action which is supported by the plaintiff's submissions ( Alvord and Swift v. Stewart M. Muller Constr. Co., Inc., 46 NY2d 276, 280-281 [failure to state a tort cause of action in pleadings insufficient to permit unconditional summary judgment in favor of defendant, as a matter of law, if plaintiff provides evidentiary facts making out a cause of action]; see also Falkowski v. Krasdale Foods, Inc. , 50 AD3d 1091 , 1092 ["plaintiff may oppose a motion for summary judgment by relying on an unpleaded cause of action"]; Millbrook Hunt, Inc. v. Smith, 249 AD2d 283, 284 [a court may grant summary judgment based upon an unpleaded defense which neither surprises nor prejudices plaintiff]).
The defendants next argue that the claim for mistaken right knee surgery sounds in the intentional tort of civil battery and is subject to a one year Statute of Limitations (CPLR 215). Recently, in Salandy v. Bryk ( 55 AD3d 147 , 163), Justice Carni explained the distinction between lack of informed consent and battery as follows: "medical malpractice is the gist of the wrong when an operation or procedure is performed without the informed consent of the patient to the risks involved. Battery is the cause of action when the patient has not consented at all to the operation or procedure ( see Cerilli v. Kezis , 16 AD3d 363 )," ( 55 AD3d at 163 [emphasis supplied], see also Spinosa v. Weinstein, 168 AD2d 32, 41). In Messina v. Matarasso ( 284 AD2d 32) the court commented:
Under traditional tort law, medical treatment beyond the scope of a patient's consent was considered an intentional tort or a species of assault and battery ( see Schloendorff v. Society of New York Hosp., 211 NY 125, 105, NE 92; Rigie v. Goldman, 148 AD2d 23, 28, 543 NYS2d 983; Dries v. Gregor, 72 AD2d 231, 235, 424, NYS2d 561). The modern approach, however, views the failure to obtain the informed consent of a patient as "a form of medical malpractice based on negligence" ( Spinosa v. Weinstein, 168 AD2d 32, 41, 571 NYS2d 747 . . .]) .
This approach is grounded in common sense. As the California Supreme Court noted in Cobbs v. Grant ( 8 Cal3d 229, 240, 104 Cal. Rptr. 505, 502, P2d 1), when the doctor obtains consent to a certain procedure and an undisclosed complication arises, what occurs is not necessarily an intentional deviation from the consent given but rather a deviation from the duty to disclose the information that a competent physician would have provided. On the other hand, when a patient agrees to treatment for one condition and is subjected to a procedure related to a completely different condition, there can be no question but that the deviation from the consent given was intentional [ 284 AD2d at 34]
Thus, a patient's claim has been found to be one for battery where the defendant medical practitioner performed a procedure on the patient without consent or when the patient, in fact, had rejected the procedure ( see Salandy v. Bryk, 55 AD3d at 163 [blood transfusion conducted notwithstanding plaintiff's refusal for religious reasons]; Cross v. Colen , 6 AD3d 306 [defendant treated plaintiff with surgical procedure expressly rejected by her]; Messina v. Matarasso, 284 AD2d at 33 [unconsented to breast procedure during cosmetic surgery on face while under general anesthesia]; Wiesenthal v. Weinberg , 17 AD3d 270 [implantation of silicone gel prosthesis allegedly against plaintiff's express wishes]; Cerilli v. Kezis , 16 AD3d 363 [biopsy performed over express objections of patient]; Oates v. New York Hosp., 131 AD2d 368 [emphatic refusal to consent to operation which was performed]; Pearl v. Lesnick, 19 NY2d 590, affg 20 AD2d 761 [radical surgery rather than mere biopsy as requested by patient]).
On the other hand, Public Health Law § 2805-d places causes of action for lack of informed consent within the category of medical malpractice ( see PJI 2:150A; Karlin v. IVF America, Inc., 93 NY2d 282). Claims for lack of informed consent are governed by the two and one-half-year statute of limitations (CPLR 214-a).
Here, plaintiff claims, inter alia, that the surgery to his right knee was not warranted, that it was undertaken without his "informed" consent, and that the surgery was negligently performed ( compare, Salandy v. Bryk, 55 AD3d at 162). As can be discerned from the pleadings and deposition testimony, the tenor of plaintiff's claim is medical malpractice or lack of informed consent, rather than civil battery ( see Moricky v. Beth Israel Medical Center, 198 AD2d 33 [claim that laminectomy performed at level of spine different from that level consented to by plaintiff]; Hoovis v. Winthrop University Hospital, 247 AD2d 585 [plaintiff consented to anesthesia for the procedure but not the type of anesthesia undertaken]; Keane v. Sloan-Kettering, 96 AD2d 505, 506 [while patient consented to surgery, he was not advised of type of surgery that would be performed]; Stone v. Goodman, 241 AD 290 [operation on right and left hernias, notwithstanding consent to umbilical and right hernias surgery only]; Dries v. Gregory, 72 AD2d 231, 235 [patient consented to biopsy not to partial mastectomy]; Rigie v. Goldman, 148 AD2d 23, 28 [jury issue of fact as to whether patient advised of surgical risks]; Rosenthal v. Hasbrouck, 161 NYS 354 [App. Term 1st Dept 1916] [extraction of wisdom tooth instead of molar]).
On the remaining issue of negligent treatment, it is well settled in New York State that "on a motion for summary judgment in a medical malpractice case, the defendant physician [or medical provider] must come forward with evidence in admissible form establishing, prima facie, either that he or she did not deviate from good and accepted medical practice, or that if there was such a departure, it was not a proximate cause of plaintiff's injuries" ( Myers v. Ferrara , 56 AD3d 78 , 83, citing Germaine v. Yu , 49 AD3d 685 , 686; Rebozo v. Wilen , 41 AD3d 457 , 458; Williams v. Sahay , 12 AD3d 366 , 368).
Dr. Miller's Motion
The affirmation of Dr. Light, along with the deposition transcripts and medical records are sufficient to make a prima facie showing that Dr. Miller did not depart from accepted standards of medical care in his preoperative and postoperative treatment of plaintiff, and in performing surgeries on both the left and right knees. Dr. Light relies upon the medical records and testimony of medical witnesses which, if credited, supports a conclusion that both the right and left knee surgeries were indicated. Based upon MRI studies preformed three years post-surgeries, Dr. Light concludes that the proximate cause of plaintiff's current complaints is not the surgical repairs — which remain intact — but the pre-existing condition of plaintiff's knees.
However, before obtaining a patient's consent to an operation, a doctor has a duty to inform the patient of what he or she intends to do. The doctor must explain, in words that are understandable to the patient, all the facts that a reasonable medical practitioner would explain regarding (1) the reasonably foreseeable risk which the operation may impose, (2) the patient's existing condition, (3) the purpose and advantages of the operation, (4) the risk involved in not having the operation and (5) the available alternatives, and risks and advantages of same (Public Health Law § 2805-d; PJI 2-150A; Spano v. Bertocci, 299 AD2d 335, 337-338). Here, Dr. Miller fails to meet this prima facie burden. Dr. Light does not address whether Dr. Lager and/or Dr. Miller adequately informed the plaintiff of the appropriate alternatives, the reasonably foreseeable risks and the benefits of both procedures ( Spano, 299 AD2d at 337-338). Nor, does he address whether "a reasonably prudent person in [plaintiff's] position would . . . have undergone the treatment or diagnosis if he had been fully informed" (Public Health Law § 2805-d).
Moreover, the affirmation of Dr. Schwartz in opposition and the admissions of Dr. Miller regarding his amendments to the records, raise issues of fact as to whether the surgery to the plaintiff's right knee was performed in error. In addition, Dr. Miller's pre-operative clinical assessment of the right knee was unconfirmed by diagnostic evidence. However, plaintiff fails to raise an issue of fact as to whether the defendants were negligent in the treatment of his left knee or as to whether the defendants' negligence was a proximate cause of any injury to this knee.
Brookdale's Motion
The affirmation of Dr. McClelland establishes that any departure by Dr. Lager, a
resident employed by the hospital, in failing to diagnose an injury to plaintiff's right knee was not a proximate cause of any injury to the plaintiff. In this regard, Dr. McClelland points out that Dr. Lager's alleged failure to diagnosis the right quadriceps rupture was remedied by Dr. Miller.
Plaintiff claims that the right knee surgery was unnecessary.
With respect to the issue of informed consent, "courts generally have refused to impose liability for lack of informed consent upon surgical assistants or physicians who neither order nor performed the subject procedure" ( Salandy v. Bryk, 55 AD3d at 157, citing Tibodeau v. Keeley, 208 AD2d 610). It has long been the rule that "the person providing the professional treatment or diagnosis" is the one who may be liable for failure to make a proper disclosure and obtain an informed consent ( see Public Health Law, § 2805-d; Salandy, 55 AD3d at 157; see also Spinosa, 168 AD2d at 39-40).
However, as the proponent of a motion for summary judgment Brookdale also has the burden of proving, as a matter of law, that it is not vicariously liable for the alleged acts of negligence of Dr. Miller. To do so, it must come forward with sufficient evidence demonstrating that Dr. Miller was not an apparent or ostensible agent of the hospital ( Keitel v. Kutz, 54 AD3d 387, citing Hill v. St. Clare's Hospital, 67 NY2d 72, 80-81 [while generally a hospital is not vicariously liable for the malpractice of a private attending physician who is not its employee, "a hospital [is] responsible to a patient who sought medical care at the hospital . . . rather than from any particular physician although the physician whose malpractice caused injury to the patient was not an employee of the hospital"]). This Brookdale has failed to do. There is also an issue of fact as to whether Dr. Miller's orders were "clearly contraindicated" ( see Walter v. Betancourt, 283 AD2d 223, 224). Accordingly, it is
ORDERED, that the Amended Motion and Cross-Motion for summary judgment are granted to the extent of dismissing the claim for medical malpractice in connection with the surgery and treatment of the plaintiff's left knee, and the Amended Motion and Cross-Motion are otherwise denied; and it is further
ORDERED, that counsel for the parties appear in the Medical Malpractice Trial Readiness Part on March 11, 2009 at 9:30 a.m.