Doria v. Benisch

• Decision Date: 15 July 2015
• Docket Number: 2014-01566
• Citation: 2015 N.Y. Slip Op. 06109,130 A.D.3d 777,14 N.Y.S.3d 95
• Parties: Gary DORIA, et al., respondents, v. David L. BENISCH, etc., et al., defendants, Melville Surgery Center, LLC, appellant.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 777
14 N.Y.S.3d 95
2015 N.Y. Slip Op. 06109

Gary DORIA, et al., respondents
v.
David L. BENISCH, etc., et al., defendants
Melville Surgery Center, LLC, appellant.

2014-01566

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

July 15, 2015.

14 N.Y.S.3d 96

Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell and David Bloom of counsel), for appellant.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.

Opinion

130 A.D.3d 777

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Melville Surgery Center, LLC, appeals from so much of an order of the Supreme Court, Suffolk County (Martin, J.), entered November 21, 2013, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Melville Surgery Center, LLC, for summary judgment dismissing the complaint insofar as asserted against it is granted.

Upon the referral of another physician, the plaintiff Gary Doria (hereinafter the

14 N.Y.S.3d 97

injured plaintiff) sought treatment from the defendant physician David Benisch. After examining the plaintiff, Benisch recommended surgery. Benisch told the plaintiff that he would perform the surgery at the free-standing surgery center operated by Melville Surgery Center, LLC (hereinafter Melville), and the surgery was scheduled for the following week. Benisch explained the specific procedure he would perform, and obtained the injured plaintiff's written consent. The following week, Benisch, assisted by Melville's staff, performed the surgery. Although the surgery appeared to have gone well, complications developed later. The injured plaintiff, and his wife suing derivatively, commenced this action against Benisch and other physicians, various professional corporations, and Melville, alleging, among other things, medical malpractice and lack of informed consent. After discovery was completed, Melville moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court denied Melville's motion, and Melville appeals.

Generally speaking, a hospital may not be held vicariously liable for the negligence of a private attending physician chosen by the patient (see Tomeo v. Beccia, 127 A.D.3d 1071, 1073, 7 N.Y.S.3d 472 ). Moreover, so long as the resident physicians and nurses employed by the hospital have merely carried out that private attending physician's orders, a hospital may not be held vicariously liable for resulting injuries (see Seiden v. Sonstein, 127...