Gattling v. Sisters of Charity Med. Ctr.

• Decision Date: 03 May 2017
• Citation: 53 N.Y.S.3d 665,150 A.D.3d 701
• Parties: Miata GATTLING, etc., et al., respondents, v. SISTERS OF CHARITY MEDICAL CENTER, etc., et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 701

53 N.Y.S.3d 665

Miata GATTLING, etc., et al., respondents,

v.SISTERS OF CHARITY MEDICAL CENTER, etc., et al., appellants, et al., defendant.

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

May 3, 2017.

Heidell, Pittoni, Murphy & Bach, LLP, White Plains, NY (Daniel S. Ratner of counsel), for appellant Saint Vincent's Catholic Medical Centers of New York, sued herein as Sisters of Charity Medical Center and St. Vincent's Medical Center of Richmond.

Leahey & Johnson P.C., New York, NY (Peter James Johnson, Jr., and Joanne Filiberti of counsel), for appellants Chitra Perera and Staten Island Medical Group.

Kelner & Kelner, New York, NY (Gerard K. Ryan, Jr., of counsel), for respondents.

MARK C. DILLON, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for medical malpractice, the defendant Saint Vincent's Catholic Medical Centers of New York, sued herein as Sisters of Charity Medical Center and St. Vincent's Medical Center of Richmond, appeals from so much of an order of the Supreme Court, Richmond County (Fusco, J.), dated December 22, 2009, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it, and the defendants Chitra Perera and Staten Island Medical Group separately appeal from so much of the same order as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendants Chitra Perera and Staten Island Medical Group which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against Chitra Perera, and substituting therefor a provision granting that branch of the motion, (2) by deleting the provision thereof denying that branch of the motion of the defendants Chitra Perera and Staten Island Medical Group which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against Staten Island Medical Group to the extent that liability is predicated upon claims of medical malpractice committed by Chitra Perera, and substituting therefor a provision granting that branch of the motion, and (3) by deleting the provision thereof denying the motion of the defendant Saint Vincent's Catholic Medical Centers of New York, sued herein as Sisters of Charity Medical Center and St. Vincent's Medical Center of Richmond, for summary judgment dismissing the complaint insofar as asserted against it, and substituting therefor a provision granting the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable to the appellants appearing separately and filing separate briefs.

The plaintiff mother commenced this medical malpractice action, individually and on behalf of the infant plaintiff, against her private attending physicians, the defendants Mario Cordaro and Chitra Perera, and the defendants Staten Island

Medical Group (hereinafter SIMG), of which Drs. Cordaro and Perera are members, and Saint Vincent's Catholic Medical Centers of New York, sued herein as Sisters of Charity Medical Center and St. Vincent's Medical Center of Richmond (hereinafter St. Vincent's), where the infant was delivered. During the delivery, shoulder dystocia

was encountered, and Perera, with the aid of St. Vincent's hospital staff, completed a series of obstetrical maneuvers to dislodge the infant's shoulder, resulting in her delivery. The plaintiffs allege that, due to the defendants' negligence in the mother's prenatal care and during labor and delivery, the infant was caused to suffer a brachial plexus injury/Erb's palsy

. The plaintiffs further allege that the defendants failed to obtain the mother's informed consent for the care and treatment rendered.

Perera and SIMG moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them and St. Vincent's separately moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court denied both motions.

"The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674 ; see Hayden v. Gordon, 91 A.D.3d 819, 820, 937 N.Y.S.2d 299 ; Guzzi v. Gewirtz, 82 A.D.3d 838, 918 N.Y.S.2d 552 ). On a motion for summary judgment, a defendant physician "must make a prima facie showing that there was no departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176 ; see Gillespie v. New York Hosp. Queens, 96 A.D.3d 901, 947 N.Y.S.2d 148 ; Healy v. Damus, 88 A.D.3d 848, 849, 931 N.Y.S.2d 243 ; Heller v. Weinberg, 77 A.D.3d 622, 622–623, 909 N.Y.S.2d 477 ). "In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's [complaint and] bill of particulars" (Wall v. Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 1045, 912 N.Y.S.2d 77 ; see Grant v. Hudson Val. Hosp. Ctr., 55 A.D.3d 874, 866 N.Y.S.2d 726 ; Terranova v. Finklea, 45 A.D.3d 572, 845 N.Y.S.2d 389 ; Ticali v. Locascio, 24 A.D.3d 430, 431, 804 N.Y.S.2d 688 ). Once a defendant has made such a showing, the burden shifts to the plaintiff to "submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician" (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ), but only as to those elements on which the defendant met the prima facie burden (see Gillespie v. New York Hosp. Queens, 96 A.D.3d 901, 947 N.Y.S.2d 148 ; Garrett v. University Assoc. in Obstetrics & Gynecology, P.C., 95 A.D.3d 823, 825, 944 N.Y.S.2d 197 ; Stukas v. Streiter, 83 A.D.3d at 23–24, 918 N.Y.S.2d 176 ).

Here, Perera made a prima facie showing of her entitlement to...