Opinion
11726/2002.
Decided December 27, 2007.
On or about May 20, 2002, the plaintiffs commenced this action for medical malpractice against defendants St. Vincents Medical Center [hereinafter St. Vincents], Dr. Lilibeth Rubio-Gonzales, Dorotea DeFrancesco, P.A., Dr. John Sou-Cheng Shiau Healthcare Associates in Medicine, Neuroscience Associates of New York and Sharon Osborn. Specifically, the plaintiff contends that the defendants negligently performed cervical spine surgery that resulted in her quadriplegia. Issue was joined and discovery was complete in March, 2007. At present, defendants St. Vincents and Dorotea DeFrancesco are moving for summary judgment on the ground that they cannot be held liable for the acts of a private attending physician. Dr. Rubio-Gonzales is moving for summary judgment alleging that she administered anesthesia in accordance with good and accepted medical practice, and defendants Healthcare Associates and Sharon Osborn are moving for summary judgment alleging that no duty was breached by them in their treatment, or lack thereof, of the plaintiff.
Defendant Dr. John Sou-Cheng Shiau has settled the action with the plaintiff.
As noted by defendants, Neuroscience Associates of New York is not a separate entity capable of being sued and does business as "Healthcare Associates" and hereinafter will collectively be referred to as "Healthcare Associates".
It is undisputed that, after a long history of back and neck pain the plaintiff's pain management specialist, non-party Dr. Bakshi, recommended she see a neurosurgeon for evaluation. The plaintiff thereafter consulted a private neurosurgeon, Dr. Shiau who diagnosed her with an osteophyte in the C4-5 location in her back, and recommended the November 5, 2001, surgery. On the aforementioned date, the plaintiff was admitted to St. Vincents Hospital for spinal surgery. Afterwards, Mrs. Vaccaro was diagnosed with a spinal cord contusion resulting in her quadriplegia.
During the surgery Dr. Rubio-Gonzales administered anesthesia to plaintiff and Dorotea DeFransceso acted as the physician's assistant. It is undisputed that Sharon Osborn, was a SSEP technician employed by Healthcare Associates and was scheduled to perform SSEP monitoring for plaintiff's surgery. Defendants contend that on the date of the surgery the type of SSEP monitor that St. Vincent's possessed was not familiar to Sharon Osborn and as a result she was unable to perform the monitoring. Upon notifying Dr. Shiau of this obstacle, Dr. Shiau indicated that SSEP monitoring would not be necessary in this type of spinal surgery and thus SSEP monitoring was not performed. Plaintiff contends that SSEP monitoring may have been performed, as indicated by hospital charts and doctor's records and as such, summary judgment is inappropriate.
I. St. Vincent's and Dorotea DeFransceso's motion for summary judgment
"It is well settled that a hospital is not vicariously liable for the acts of a private attending physician . . . who is retained by a patient and is immune from liability where its employees follow the direction of the attending physician, unless that physician's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders'" ( Garson v. Beth Israel Medical Ctr. , 41 AD3d 159, 159 [1st Dept. 2007]; Toth v. Bloshinsky , 39 AD3d 848 , 850 [2nd Dept. 2007]; Cerny v. Williams , 32 AD3d 881 , 883 [2nd Dept. 2006]; Welch v. Scheinfeld , 21 AD3d 802 , 807 [1st Dept. 2005]).
Here, it is undisputed that defendant Dr. Shiau's made the ultimate decision regarding whether SSEP monitoring was performed at plaintiff's surgery. In fact, both Dr. Shiau and plaintiff's expert unequivocally state that it was the Dr. Shiau who decided whether SSEP monitoring was done during the surgery and further, that his decisions "set in motion" the events that followed. Here, regardless of whether SSEP monitoring was conducted or not, the defendant's, St. Vincents and Dorotea DeFrancesco have presented evidence sufficient to establish that they neither committed independent acts of negligence, nor did they follow orders from Dr. Shiau that were "so clearly contraindicated by normal practice" that they should have inquired into the accuracy of such orders ( Garson v. Beth Israel Medical Ctr., 41 AD3d at 159; Cerny v. Williams, 32 AD3d at 883). In opposition, the plaintiff has failed to raise a triable issue of fact regarding any independent acts of negligence on behalf of the hospital or defendant DeFransceso, and further, plaintiff's expert even acknowledged that "the sequence of events in this case were set into motion primarily by the attending neurosurgeon who acted impulsively and with poor surgical judgment." As such, summary judgment is granted in favor of the defendants, St. Vincents and Dorotea DeFransceso.
II. Dr. Rubio-Gonzales' motion for summary judgment
The defendant Dr. Rubio-Gonzales established her prima facie entitlement to summary judgment by adducing expert opinion that she did not deviate from good and accepted medical practice in her administration of anesthesia to plaintiff ( see Alvarez v. Prospect Hosp., 68 NY2d 320, 325). Additionally, defendant Rubio-Gonzales established that she did not commit any independent acts of negligence, or comply with any order from Dr. Shiau that was "so clearly contraindicated by normal practice" that she should have questioned the veracity of such directions ( Toth v. Bloshinsky, 39 AD3d at 850). Defendant's expert, Dr. Elizabeth Frost, M.D., opined that Dr. Rubio-Gonzales administered anesthesia to plaintiff in accordance with good and accepted medical practice and further "that no act or omission on Dr. Rubio's part could have caused" the plaintiff's spinal cord contusion. As such, the defendant Dr. Rubio-Gonzales has established that she did not deviate from accepted medical practice her administration of anesthesia to plaintiff; commit any independent act of negligence, nor did she fail to question any clearly erroneous decision by the private attending neurosurgeon, and thus summary judgment is appropriate.
In opposition, the redacted affidavit of plaintiff's medical expert fails to raise a triable issue of fact. Plaintiff's expert offered only conclusory assertions and mere speculation that Dr. Rubio-Gonzales deviated from accepted medical practice in failing to properly "keep the attending neurosurgeon in check" ( see Alvarez v. Prospect Hosp., 68 NY2d 322, 325; Micciola v. Sacchi, 36 AD2d 869, 871 [2nd Dept. 2007] [finding that conclusory or unsupported expert opinions are insufficient to raise triable issues of fact]). Further, plaintiff's expert fails to allege any act in the administration of anesthesia was the cause of plaintiff's injuries but rather seeks to hold Dr. Rubio-Gonzales liable for the private attending physician's decisions, however, unless those decision were so abhorrent to common medical practice, the hospital employees are not liable ( see Garson v. Beth Israel Medical Ctr., 41 AD3d at 159; Cerny v. Williams, 32 AD3d at 883). Therefore, Dr. Rubio-Gonzales' motion for summary judgment to dismiss the complaint against her is granted.
III. Healthcare Associates and Sharon Osborn's Motion
Again, defendants have established a prima facie showing of entitlement to summary judgment by presenting evidence in admissible form sufficient to establish that defendant Healthcare Associates and Sharon Osborn committed no independent acts of negligence, nor did Sharon Osborn, in her care of plaintiff, fail to investigate any alleged questionable decisions made by plaintiff's private attending physician, Dr. Shiau ( Garson v. Beth Israel Med. Ctr., 41 AD3d at 159). In opposition, plaintiff fails to raise a triable issue of fact. Whether Sharon Osborn could perform the SSEP monitoring that was to be initially conducted during plaintiff's spinal surgery does not give rise to an independent duty on to the plaintiff. It is Dr. Shiau who made the ultimate decision to forego the "unnecessary" SSEP monitoring for the type of spinal surgery the plaintiff was to undergo and, as a result, whether or not Sharon Osborn could perform the SSEP monitoring is not a triable issue of fact. Sharon Osborn, and hence Healthcare Associates, had no duty to the plaintiff to perform the SSEP monitoring. Dr. Shiau had the duty of care and therefore defendant Osborn did not breach any independent duty; nor did she fail to any clearly contraindicated' decision by Dr. Shiau. As such summary judgment is appropriate dismissing the complaint.
Accordingly, it is
ORDERED that the defendant's St. Vincents, Dr. Rubio-Gonzales, and Dorotea DeFrancesco's motion for summary judgment is hereby granted, and it is further
ORDERED that the defendant's Healthcare Associates in Medicine, P.C., Neuroscience Associates of New York, and Sharon Osborn's motion for summary judgment is hereby granted, and it is further
ORDERED that the complaint is dismissed against all defendants; and it is further
ORDERED that the Clerk enter Judgment accordingly.
THIS IS THE DECISION AND ORDER OF THE COURT.