Bucsko v. Gordon

• Decision Date: 04 June 2014
• Citation: 2014 N.Y. Slip Op. 03969,987 N.Y.S.2d 402,118 A.D.3d 653
• Parties: Rudolph BUCSKO, etc., appellant, v. Lawrence A. GORDON, defendant, Long Island Jewish Medical Center, et al., respondents.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 653

987 N.Y.S.2d 402

2014 N.Y. Slip Op. 03969

Rudolph BUCSKO, etc., appellant,

v. Lawrence A. GORDON, defendant,Long Island Jewish Medical Center, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

June 4, 2014.

Abbott Bushlow & Schechner, LLP, Ridgewood, N.Y. (Bruce E. Bushlow of counsel), for appellant.

Bartlett McDonough & Monaghan, LLP, Mineola, N.Y. (Robert G. Vizza and Kim B. Kirzner of counsel), for respondents Long Island Jewish Medical Center and North Shore–Long Island Jewish Health System, Inc.

Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Steven B. Prystowsky of counsel), for respondent Parker Jewish Institute for Health Care and Rehabilitation.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for medical malpractice and wrongful death, etc., the plaintiff appeals from (1) an order of the Supreme Court, Queens County (O'Donoghue, J.), dated May 3, 2012, which granted the motion of the defendants Long Island Jewish Medical Center and North Shore–Long Island Jewish Health System, Inc., and the separate motion of the defendant Parker Jewish Institute for Health Care, for summary judgment dismissing the amended complaint insofar as asserted against each of them, (2) a judgment of the same court dated June 7, 2012, which, upon the order, is in favor of the defendant Parker Jewish Institute for Health Care and against him dismissing the amended complaint insofar as asserted against that defendant, and (3) a judgment of the same court dated July 23, 2012, which, upon the order, is in favor of the defendants Long Island Jewish Medical Center and North Shore–Long Island Jewish Health System, Inc., and against him dismissing the amended complaint insofar as asserted against those defendants.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgments are affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgments in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeals from the judgments ( seeCPLR 5501[a][1] ).

In this medical malpractice action, a piece of “old packing” was discovered in the surgical wound of the plaintiff's decedent, Mary Bucsko, almost one year after a right hemicolectomy was performed by the defendant physician, Lawrence A. Gordon, at the facilities of the defendant Long Island Jewish Medical Center (hereinafter the Medical Center). Following the surgery, Bucsko's surgical wound was cared for at the Medical Center by Gordon and hospital staff under Gordon's supervision, at the facilities of the defendant Parker Jewish Institute for Health Care and Rehabilitation (hereinafter Parker), at Bucsko's home by visiting nurses employed by the defendant North Shore–Long Island Jewish Health System, Inc. (hereinafter North Shore), and at Gordon's private office. Bucsko commenced this action alleging, inter alia, that the defendants were negligent in leaving the packing inside the wound, asserting that it delayed the healing of the wound. After Bucsko died, the plaintiff was substituted as the administrator of Bucsko's estate. The plaintiff then served an amended complaint adding a cause of action alleging wrongful death.

The Medical Center and North Shore (hereinafter together the hospital defendants) moved, and Parker separately moved, for summary judgment dismissing the amended complaint insofar as asserted against each of them, and the Supreme Court granted both motions.

The requisite elements of proof in a medical malpractice action are a deviation or departure from the accepted standard of care and evidence that the deviation or departure was a proximate cause of injury or damage ( see Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176;Hamilton v. Good Samaritan Hosp. of Suffern, N.Y., 73 A.D.3d 697, 698, 900 N.Y.S.2d 368). To establish prima facie entitlement to judgment as a matter of law, a defendant in a medical malpractice action must negate either of these two elements ( see Stukas v. Streiter, 83 A.D.3d at 24, 918 N.Y.S.2d 176). The plaintiff may then defeat the motion by submitting proof raising a triable issue of fact as to the element or elements as to which the defendant has made its prima facie showing ( see id.).

The hospital defendants established their prima facie entitlement to judgment as a matter of law by submitting affidavits from a general surgeon and from a registered nurse demonstrating, prima facie, that their treatment of Bucsko conformed to good and accepted medical and nursing practice ( see Hamilton v. Good Samaritan Hosp. of Suffern, N.Y., 73 A.D.3d at 697, 900 N.Y.S.2d 368;Dunn v. Khan, 62 A.D.3d 828, 829, 880 N.Y.S.2d 653), and an expert affidavit from an oncologist demonstrating, prima facie, that any departure from the standard of care was not the proximate cause of Bucsko's injuries or death ( see Orsi v. Haralabatos, 20 N.Y.3d 1079, 1080, 965 N.Y.S.2d 71, 987 N.E.2d 631). Moreover, the Medical Center established that it cannot be held vicariously liable for any purported malpractice committed by Gordon, as it is undisputed that he was a private attending physician whose services had been retained by Bucsko, and that he was not an employee of the Medical Center ( see Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79, 499 N.Y.S.2d 904, 490 N.E.2d 823;Litwak v. Our Lady of Victory Hosp. of Lackawanna, 238 A.D.2d 881, 881, 660 N.Y.S.2d 914;Georges v. Swift, 194 A.D.2d 517, 598 N.Y.S.2d 545). Likewise, the Medical Center could not be held answerable for any acts performed by its professional staff in accordance with the instructions of Bucsko's private physician ( see Toth v. Community Hosp. at Glen Cove, 22 N.Y.2d 255, 265 n. 3, 292 N.Y.S.2d 440, 239 N.E.2d 368;Nagengast v. Samaritan Hosp., 211 A.D.2d 878, 880, 621 N.Y.S.2d 217;Georges v. Swift, ...