Dupree v. Westchester Cnty. Health Care Corp.

• Decision Date: 12 September 2018
• Docket Number: 2016–06808,Index No. 58533/11,2016–10182
• Citation: 84 N.Y.S.3d 176,164 A.D.3d 1211
• Parties: Gregory P. DUPREE, etc., et al., respondents, v. WESTCHESTER COUNTY HEALTH CARE CORPORATION, et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 1211
84 N.Y.S.3d 176

Gregory P. DUPREE, etc., et al., respondents,
v.
WESTCHESTER COUNTY HEALTH CARE CORPORATION, et al., appellants, et al., defendant.

2016–06808
2016–10182
Index No. 58533/11

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

Argued—April 13, 2018
September 12, 2018

84 N.Y.S.3d 178

Vigorito, Barker, Porter & Patterson, LLP, Valhalla, N.Y. (Leilani Rodriguez of counsel), for appellants.

Warren J. Bennia, New York, NY, for respondents.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and wrongful death, the defendants Westchester County Health Care Corporation and Westchester Medical Center appeal from (1) an order of the Supreme Court, Westchester County (Lawrence H. Ecker, J.), dated April 6, 2016, and (2) an order of the same court dated September 19, 2016. The order dated April 6, 2016, insofar as appealed from, denied the motion of those defendants for summary judgment dismissing the complaint insofar as asserted against them. The order dated September 19, 2016, denied the motion of those defendants for leave to renew their prior motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order dated April 6, 2016, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated September 19, 2016, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

On August 13, 2010, Imelda Dupree (hereinafter the decedent) was admitted to the defendant Westchester Medical Center (hereinafter WMC) for a deceased donor kidney transplant. The defendant Caroline Rochon performed the transplant surgery. On August 14 and 15, 2010, the decedent was treated by an attending nephrologist, nonparty Matthew Plotkin. On August 16 and 17, 2010, the decedent was treated by another attending nephrologist, nonparty Nandita Singh. The decedent did not receive dialysis on August 14, 15, or 16, 2010. It is undisputed that the final decision of whether to administer dialysis is made by the attending nephrologist. On August 17, 2010, the decedent became unresponsive on her way to receive dialysis. Intubation proved to be difficult, and the decedent was subsequently diagnosed with an anoxic brain injury. The decedent never regained consciousness and passed away on September 14, 2010.

The plaintiffs commenced this action against WMC and the defendant Westchester County Health Care Corporation (hereinafter together the hospital defendants), as well as Rochon and other individual defendants, seeking, inter alia, to recover damages for medical malpractice and wrongful death. The plaintiffs alleged, among other things, that the defendants were negligent in failing to timely administer dialysis, which ultimately led to the decedent's death.

After the completion of discovery, the action was discontinued against four of the individual defendants. The remaining defendants, the hospital defendants and Rochon, separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted Rochon's motion, and denied the hospital defendants' motion. The hospital defendants then moved for leave to renew their prior motion for summary judgment dismissing the complaint...