Georges v. Swift

• Decision Date: 01 June 1993
• Citation: 598 N.Y.S.2d 545,194 A.D.2d 517
• Parties: Marlene GEORGES, Respondent, v. Leroy SWIFT, Defendant, Hillcrest General Hospital, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 545

598 N.Y.S.2d 545

194 A.D.2d 517

Marlene GEORGES, Respondent, v. Leroy SWIFT, Defendant, Hillcrest General Hospital, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 1, 1993.

Bower & Gardner, New York City (Steven J. Ahmuty, Jr., of counsel; Vincent N. Lipari, on the brief), for appellant.

Before THOMPSON, J.P., and SULLIVAN, RITTER and JOY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for medical malpractice, the defendant Hillcrest General Hospital appeals from an order of the Supreme Court, Kings County (Scholnick, J.), dated May 9, 1991, which denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as it is asserted against the defendant Hillcrest General Hospital, and the action against the remaining defendant is severed.

The plaintiff underwent surgery at the defendant Hillcrest General Hospital (hereinafter Hillcrest) in 1978 for a total abdominal hysterectomy and wedge resection of the right ovary. Claiming that she suffered neurological damage as a result of the operation, she subsequently commenced this medical malpractice action against Hillcrest and the physician who performed the surgery. The plaintiff eventually obtained a default judgment against the physician. Hillcrest thereafter moved for summary judgment dismissing the complaint insofar as it is asserted against it. The Supreme Court denied the motion on the ground that unspecified triable issues of fact existed in the case. We reverse.

Hillcrest established prima facie its entitlement to judgment as a matter of law by submitting affidavits of medical experts, various hospital records concerning the treatment rendered to the plaintiff, and excerpts from the plaintiff's own examination before trial. Hence, the burden shifted to the plaintiff to lay bare her proof and demonstrate the existence of a material triable issue of fact regarding her claims against Hillcrest (see, 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. Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642). However, the plaintiff's opposition papers merely repeated the vague and speculative allegations of negligence previously set forth in her bill of particulars, and she failed to come forward with any evidence of a specific negligent act or omission of a Hillcrest employee which caused her alleged injuries. Moreover, it is clear that Hillcrest cannot be held vicariously liable for any purported malpractice committed by the defendant physician inasmuch as it is undisputed that he was a private attending physician whose services had been retained by the plaintiff, and he was not a hospital employee (see, Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 499 N.Y.S.2d 904, 490 N.E.2d 823; Tuzeo v. Hegde, 172 A.D.2d 747, 569 N.Y.S.2d 134; Bush v. Dolan, 149 A.D.2d 799, 540 N.Y.S.2d 21). Likewise, Hillcrest could not be held...