Cham v. St. Mary's Hosp. of Brooklyn

• Decision Date: 27 April 2010
• Citation: 72 A.D.3d 1003,2010 N.Y. Slip Op. 03398,901 N.Y.S.2d 65
• Parties: Khalid CHAM, et al., appellants,v.ST. MARY'S HOSPITAL OF BROOKLYN, respondent, et al., defendant.
• Court: New York Supreme Court — Appellate Division

72 A.D.3d 1003

901 N.Y.S.2d 65

2010 N.Y. Slip Op. 03398

Khalid CHAM, et al., appellants,

v.ST. MARY'S HOSPITAL OF BROOKLYN, respondent, et al., defendant.

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

April 27, 2010.

Randazzo & Giffords, P.C. (Norma Giffords and Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac], of counsel), for appellants.Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and Scott Fusaro of counsel), for respondent.PETER B. SKELOS, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.

In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Kings County (Dabiri, J.), dated November 10, 2008, which granted the motion of the defendant St. Mary's Hospital of Brooklyn for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant St. Mary's Hospital of Brooklyn for summary judgment dismissing the complaint insofar as asserted against it is denied.

The complaint alleged, inter alia, that Khalid Cham (hereinafter the infant plaintiff) suffered debilitating birth defects as a result of the negligence of the defendant St. Mary's Hospital of Brooklyn (hereinafter St. Mary's) and the defendant Jean Lochard, M.D. (hereinafter Dr. Lochard) during the delivery of the infant plaintiff. In its motion for summary judgment, St. Mary's asserted that the infant plaintiff's mother, Martine Eugene (hereinafter the plaintiff), was Dr. Lochard's private patient. Consequently, St. Mary's contended that it could not be held liable for the infant plaintiff's injuries because the hospital staff appropriately executed the directives of Dr. Lochard. Further, St. Mary's argued that there were no circumstances under which St. Mary's resident physicians and nurses, who were attending to the plaintiff, were required to question the correctness of Dr. Lochard's actions or orders. The Supreme Court granted St. Mary's motion for summary judgment dismissing the complaint insofar as asserted against it. We reverse.

The order appealed from correctly articulated the applicable law. A hospital may not be held liable for injuries suffered by a patient who is under the care of a private attending physician chosen by the patient where the resident physicians and nurses employed by the hospital merely carry out the orders of the private attending physician, unless the hospital staff commits “independent acts of negligence or the attending physician's orders are contradicted by normal practice” ( Cerny v. Williams, 32 A.D.3d 881, 883, 822 N.Y.S.2d 548; see Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79, 499 N.Y.S.2d 904, 490 N.E.2d 823; Toth v. Community Hosp. at Glen Cove, 22 N.Y.2d 255, 265, 292 N.Y.S.2d 440, 239 N.E.2d 368; Petty v. Pilgrim, 22 A.D.3d 478, 479, 802 N.Y.S.2d 217; Pearce v. Klein, 293 A.D.2d 593, 741 N.Y.S.2d 89). However, under the circumstances of this case, the Supreme Court misapplied the law.

In a medical malpractice action, the moving defendant bears the burden of proving the absence of any departure from good and accepted standards of medical practice, or even in the presence of said departures that the plaintiff was injured thereby ( see Swezey v. Montague Rehab & Pain Mgt., P.C., 59 A.D.3d 431, 433, 872 N.Y.S.2d 199; Larsen v. Loychusuk, 55 A.D.3d 560, 866 N.Y.S.2d 217). In pursuance of its prima facie burden of proof, the moving defendant is required to address the factual allegations set forth in the plaintiffs' bill of particulars with reference to the moving defendant's alleged acts of negligence and the injuries suffered with competent medical proof ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). It is only after the movant has carried its prima facie burden that the nonmoving party is required to submit competent proof in opposition for the purpose of establishing the presence of material issues of fact ( id.).

Here, St. Mary's failed to establish its prima facie entitlement to judgment as a matter of law. In support of its motion for summary judgment, St. Mary's submitted, inter alia, an affidavit from its...