Opinion
2017-07033 Index No. 59526/14
02-13-2020
Charles TSOCANOS, et al., Appellants, v. Gerald W. ZAIDMAN, etc., Defendant, Namita Sagar, etc., et al., Respondents.
Wingate, Russotti, Shapiro & Halperin, LLP, New York, NY (Philip Russotti and Kathleen P. Kettles of counsel), for appellants. Heidell, Pittoni, Murphy & Bach, LLP, White Plains, NY (Daniel S. Ratner of counsel), for respondents.
Wingate, Russotti, Shapiro & Halperin, LLP, New York, NY (Philip Russotti and Kathleen P. Kettles of counsel), for appellants.
Heidell, Pittoni, Murphy & Bach, LLP, White Plains, NY (Daniel S. Ratner of counsel), for respondents.
ALAN D. SCHEINKMAN, P.J., COLLEEN D. DUFFY, BETSY BARROS, PAUL WOOTEN, JJ.
DECISION & ORDER In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated April 28, 2017. The order granted the motion of the defendants Namita Sagar and Westchester County Health Care Corporation for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed, with costs.
The plaintiff Charles Tsocanos (hereinafter Charles), and his wife suing derivatively, commenced this action to recover damages for medical malpractice. The plaintiffs allege that Charles sustained injuries as a result of a cataract removal surgery performed on June 20, 2013, by the defendant Gerald W. Zaidman, a private attending physician at the defendant Westchester County Health Care Corporation (hereinafter the hospital), with the assistance of the defendant Namita Sagar, then an ophthalmology resident at the hospital. The plaintiffs allege, inter alia, that Sagar failed to properly administer a retrobulbar block injection, an anesthetic procedure, to Charles at the start of the cataract surgery, resulting in a central retinal vein occlusion to Charles's eye. After the completion of discovery, Sagar and the hospital (hereinafter together the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the defendants' motion, and the plaintiffs appeal.
" ‘A resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the doctor's directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene’ " ( Quille v. New York City Health & Hosp. Corp., 152 A.D.3d 808, 809, 59 N.Y.S.3d 131, quoting Soto v. Andaz, 8 A.D.3d 470, 471, 779 N.Y.S.2d 104 ). Here, the defendants made a prima facie showing of Sagar's entitlement to judgment as a matter of law through Charles's medical records and the deposition testimony of Zaidman, which demonstrated that Zaidman had complete control over Charles's diagnosis, the surgical approach, and the surgery (see Nasima v. Dolen, 149 A.D.3d 759, 760, 51 N.Y.S.3d 189 ; Guctas v. Pessolano, 132 A.D.3d 632, 635, 17 N.Y.S.3d 749 ; Muniz v. Katlowitz, 49 A.D.3d 511, 513–514, 856 N.Y.S.2d 120 ; Soto v. Andaz, 8 A.D.3d at 471, 779 N.Y.S.2d 104 ). Although Sagar actively participated in the surgery by performing the retrobulbar block, she did so under Zaidman's direction and close supervision, and thus exercised no independent medical judgment (see Nasima v. Dolen, 149 A.D.3d at 760, 51 N.Y.S.3d 189 ; Guctas v. Pessolano, 132 A.D.3d at 635, 17 N.Y.S.3d 749 ; Muniz v. Katlowitz, 49 A.D.3d at 513–514, 856 N.Y.S.2d 120 ; Soto v. Andaz, 8 A.D.3d at 471, 779 N.Y.S.2d 104 ). The defendants also established that Zaidman's instructions did not so greatly deviate from normal practice that Sagar should have intervened, as the defendants' expert concluded that it was appropriate for Sagar to perform a retrobulbar block under the supervision of an attending physician (see Nasima v. Dolen, 149 A.D.3d at 760, 51 N.Y.S.3d 189 ; Guctas v. Pessolano, 132 A.D.3d at 635, 17 N.Y.S.3d 749 ; Muniz v. Katlowitz, 49 A.D.3d at 513–514, 856 N.Y.S.2d 120 ; Soto v. Andaz, 8 A.D.3d at 471, 779 N.Y.S.2d 104 ).
In general, " ‘a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee’ " ( Dupree v. Westchester County Health Care Corp., 164 A.D.3d 1211, 1213, 84 N.Y.S.3d 176, quoting Toth v. Bloshinsky, 39 A.D.3d 848, 850, 835 N.Y.S.2d 301 ). Even when hospital employees, such as resident physicians, participate in the treatment of a patient, the hospital "may not be held vicariously liable for resulting injuries where the hospital employees have merely carried out the private attending physician's orders" ( Dupree v. Westchester County Health Care Corp., 164 A.D.3d at 1213, 84 N.Y.S.3d 176 ).
The defendants made a prima facie showing of the hospital's entitlement to judgment as a matter of law by presenting evidence that Zaidman was a private attending physician, not an employee of the hospital, that Sagar was a resident when she administered the retrobulbar block, and that Sagar merely carried out Zaidman's orders when she administered the block (see Nasima v. Dolen, 149 A.D.3d at 760, 51 N.Y.S.3d 189 ; Guctas v. Pessolano, 132 A.D.3d at 635, 17 N.Y.S.3d 749 ; Muniz v. Katlowitz, 49 A.D.3d at 513–514, 856 N.Y.S.2d 120 ; Soto v. Andaz, 8 A.D.3d at 471, 779 N.Y.S.2d 104 ).
In opposition, the plaintiffs failed to raise a triable issue of fact as to whether Sagar exercised any independent medical judgment or as to the hospital's vicarious liability. In view of the foregoing, we need not reach the plaintiffs' remaining contentions.
Accordingly, we agree with the Supreme Court's determination to grant the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.
SCHEINKMAN, P.J., DUFFY, BARROS and WOOTEN, JJ., concur.